Loopholes

Congress, The White House Blog

             International Human Rights law was created in 1945 with the birth of the United Nations. Since it’s creation, hundreds of treaties have been created dealing with human rights issues across the world.  The process of creating treaties is often very time consuming. Even when the treaty has been created, a country or state can create a list of reservations, meaning that the country or state will not follow certain articles of a treaty. The United States is one of those nations that almost always has a list of reservations in regards to human rights treaties. It is common knowledge that the Constitution of the United States is the supreme document in law. Nothing can contradict it or change it unless an amendment is passed. Some reservations created for treaties are done so to uphold the Constitution above any law ratified through treaties. An example of this is a reservation made when the U.S. was adopting the International Covenant on Civil and Political Rights.

            “The Senate’s advice and consent is subject to the following reservations:

(1) That Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States.”

            Article 20 in the ICCPR is not intended to limit freedom of speech, well it is but against speech that is discriminatory.

            Article 20 of the ICCPR:

1.     Any propaganda for war shall be prohibited by law.

2.     Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination hostility or violence shall be prohibited by law.

           

            This is one reservation that I agree with. Limiting speech and expression will only lead to more problems. Unfortunately we have to deal with the crazies now, but at least everyone has the right.

            The part that gets me about creating reservations, declarations and understandings for treaties is that the United States is making a loophole for itself, well mainly a loophole for congress. The point of ratifying a human rights treaty is a) to protect our rights and liberties, and b) for the courts to interpret and uphold the laws. When a reservation is made its congress that is interpreting and changing the laws. An example of this is the reservation made against another article of the ICCPR.

      

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            “That the United States considers itself bound by Article 7 to the extent that “cruel, inhuman or degrading treatment or punishment” means the cruel and unusual treatment of punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States.”

            What Congress is doing though that reservation is adopting the article but under the terms of the Constitution, meaning the original intent and purpose of the treaty is void. So when someone goes to court and calls upon the ICCPR as evidence of inhumane treatment, it is then judged in terms of what domestic law states and not the practice of what every other nation that adopted the ICCPR. Also it should be noted that every human rights treaty that the United States enters into is non self-executing. This means that it does not automatically go into domestic law and if Congress doesn’t enact it then the courts cannot uphold the laws. Again, this transfers the power to congress, which does not keep the treaty’s intentions pure or independent from political factions.

What do you think?