Professor Martin,
Is it your view, in light of the invalidation of the U.S. Reservation by the U.N.
Human Rights Committee, that the Convention Against Turture is not binding on the U.S.
because its partial (or conditional) ratification was not accepted? Or is it (as I
suspect) that the Convention is nevertheless binding in areas that we explicitly
refused to ratify?
John Eastman
-----Original Message-----
From: Francisco Martin [mailto:[EMAIL PROTECTED]
Sent: Fri 9/26/2003 1:56 PM
To: [EMAIL PROTECTED]
Cc:
Subject: Re: Question about Treaty/Constitution Interaction
Prof. Parry asks:
> The Convention Against Torture bans state use of torture and other
> cruel, inhuman, or degrading treatment. The Convention defines torture
> but does not define cruel, inhuman, or degrading treatment. As a
> condition of its consent to the Convention, the U.S. Senate, among other
> things, declared its understanding that cruel, inhuman, or degrading
> treatment means conduct proscribed by the 5th, 8th, and 14th amendments.
> That is, if it is unconstitutional, it is cruel, inhuman, or degrading
> treatment.
>
> My question is factual. Is anyone aware of other treaties towards which
> the Senate has taken a similar approach? Put differently, has the
> Senate consented to other treaties on the condition that they proscribe
> only conduct that already is unconstitutional?
Yes, the Senate consented to the ICCPR subject to the same reservation it
made to the CAT. Pres. Bush Sr. submitted the reservation (and others) to
the UN Secretary General with the U.S.' instrument of ratification.
Subsequently, the UN Human Rights Committee effectively invalidated the
reservation on a number of grounds in its General Comment No. 24 (52). See,
e.g., § 19 ("reservations should not systematically reduce the obligations
undertaken only to the presently existing in less demanding standards of
domestic law. Nor should interpretative declarations or reservations seek
to remove an autonomous meaning to Covenant obligations, by pronouncing
them to be identical, or to be accepted only insofar as they are identical,
with existing provisions of domestic law.").
Francisco Forrest Martin
