CAPÍTULO VI Hábeas corpus
165ELDER JAIME MIRANDA ABURTO
Equally as important (and controversial) in defining the relationship between the US and international law is the declaration lodged by the US that Articles 1 to 27 of the ICCPR are non-self-executing.116 The concept of self-executing treaties originated in the US itself,117 but
108 Senate Committee Report (n 50) 24.
109 Quigley, ‘The International Covenant on Civil and Political Rights and the Supremacy Clause’ (n 50) 1306-08. 110 Ibid 1307.
111 Ibid.
112 UN Human Rights Committee, ‘Concluding Observations on the Fourth Periodic Report of the United States of America’ (23
April 2014) UN Doc CCPR/C/USA/CO/4 para 4(c).
113 Senate Committee Report (n 50) 4. 114 VCLT (n 47) Article 31.
115 Bassiouni, ‘Reflections on the Ratification of the International Covenant on Civil and Political Rights by the United States
Senate’ (n 93) 1180.
116 Senate Committee Report (n 50) 19.
117 Yuji Iwasawa, ‘The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis’ (1986) 26 Va J Intl L 627, 627,
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has since been adopted by the global community and developed into an established
component of international law.118 In the context of treaties such as the ICCPR, if the treaty is
considered to be self-executing, once it has been ratified, it will automatically become law in the ratifying state. If the treaty is considered to be non-self-executing, as the US declared the ICCPR to be, then it will not become law in the ratifying state until domestic legislation has been passed to implement it.
The SFRC explained in its report that ‘the intent [of the Declaration was] to clarify that the Covenant will not create a private cause of action in the [US] courts’ and this was because the SFRC believed that ‘[US] law generally complies with the [ICCPR]; hence, implementing
legislation is not contemplated’.119 However, this declaration has caused much confusion and
differing interpretation in the US; so much so that the US Court of Appeals for the Fifth Circuit declared that ‘[t]he self-execution question is perhaps one of the most confounding in treaty law’.120
Despite the SFRC stating clearly that the intent of the declaration is to prevent a private cause of action, courts and scholars alike have been unable to agree upon what this means in practice. Some scholars, such as Carlos Vasquez and Kristen Carpenter, take the view of the SFRC – that it will simply not allow a private cause of action unless there is domestic legislation giving the ICCPR authority.121 Vasquez also added that, ‘even without a “private cause of
action”, private individuals may enforce such treaties defensively if they are being sued or
prosecuted under statutes that are inconsistent with treaty provisions’.122
Some courts have also utilised the SFRC’s definition of non-self-executing. For example, in an unreported case in the District of Colorado, the court substantiated its ruling that the non- self-executing declaration provides for no private right of action by citing ‘[d]ozens of courts’
that have agreed with this point.123 However, the Southern District Court of Florida interpreted
the non-self-executing declaration more narrowly, by stating that ‘[a]s a non-self- executing treaty, the ICCPR is not judicially enforceable, and therefore, does not provide [the
118 See, Albert Bleckmann, ‘Self-Executing Treaty Provisions’ in R Bernhardt (ed), Encyclopaedia of Public International Law 7
(Elsevier Science Publishers 1984) 414.
119 Senate Committee Report (n 50) 19.
120 United States v Postal 589 F 2d 862, 876 (5th Cir 1979).
121 See generally, Carlos Manuel Vasquez, ‘The Four Doctrines of Self-Executing Treaties’ (1995) 89 Am J Int’l L 695; Kristen D
A Carpenter, ‘The International Covenant on Civil and Political Rights: A Toothless Tiger?’ (2000) 26 NC J Intl L & Com Reg 1.
122 Vasquez (n 122) 720.
123 Smith v Bender 2008 WL 2751346, 7 (D Col 11 July 2008) citing ‘Hain v Gibson 287 F 3d 1224, 1243 (10th Cir 2002) (‘Even
if ... the above-quoted reservation were void...it is clear that the ICCPR is not binding on the federal courts’); see also Leombruno
v Craven 2007 WL 2265119 (D Id 2007) (unpublished); Clancy v Office of Foreign Assets Control 2007 WL 1051767 (E D Wis
2007) (unpublished); Martinez–Lopez v Gonzales 454 F 3d 500, 502 (5th Cir 2006); Brightwell v Lehman 2006 WL 931702 (W D Pa 2006) (unpublished); Reaves v Warden 2002 WL 535398 (M D Pa 2002) (unpublished); Beazley v Johnson 242 F 3d 248, 267 (5th Cir 2001); Buell v Mitchell 274 F 3d 337, 372 (6th Cir 2001); Ralk v Lincoln County Ga 81 F Supp 2d 1372, 1380 (S D Ga 2000); Jama v INS 22 F Supp 2d 353, 365 (DNJ 1998); White v Paulsen 997 F Supp 1380, 1387 (E D Wa 1998); Igartúa De
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defendant] with a defense’.124 According to Vasquez’s argument above, this ruling is incorrect
and in violation of international law, as the ICCPR can be used as a defence, even without a private cause of action.125
In stark comparison to the narrow holding in Florida, First Circuit Judge Lipez, in his concurring
opinion in Igartúa v. US,126 found that ‘[t]he Senate’s declaration that the ICCPR is non-self-
executing is ultra vires with respect to the ratification process and as such that declaration is
not binding on the courts’.127 Quigley agreed with the First Circuit’s view that the Senate was
acting ultra vires.128 In support of his argument Quigley noted that US courts often hold treaty
provisions to be self-executing, and so there would be no reason why the US could not do so
in the case of the ICCPR, as Judge Lipez did in Igartúa.129 However, Carpenter contended
that the treaties Quigley considered in coming to this conclusion did not have express non-
self-executing declarations lodged against them as the ICCPR does.130 Moreover, the
Restatement provides that ‘[c]ourts in the [US] are bound to give effect to international law and to international agreements of the [US], except that a “non-self-executing” agreement will not
be given effect as law in the absence of necessary implementation’,131 and there is currently
no domestic legislation in place giving the ICCPR effect in the US. Whilst Quigley has made a valid argument, case law shows that Igartúa was an exception to the rule and the courts generally follow the view of the Restatement, meaning that appeals on these grounds are very unlikely to succeed.
SCOTUS’ most recent view on the definition of self-executing was provided in Medellín v.
Texas.132 In a narrow interpretation of the notion of non-self-executing treaties, the majority
opinion of the Court, delivered by Chief Justice Roberts, stated in a footnote:
Even when treaties are self-executing in the sense that they create federal law, the background presumption is that “[i]nternational agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts”.133
124 In re Extradition of Hurtado 622 F Supp 2d 1354, 1357 (SD Florida 2009). 125 Vasquez, ‘The Four Doctrines of Self-Executing Treaties’ (n 122) 720. 126 Igartúa v US 626 F 3d 592 (1st Cir 2010).
127 Ibid 625.
128 Carpenter, ‘The International Covenant on Civil and Political Rights’ (n 122) 24, citing John Quigley, ‘The Rule of Non-Inquiry
and Human Rights Treaties’ (1996) 45 Cath U L Rev 1213, 1230.
129 Ibid.
130 Carpenter, ‘The International Covenant on Civil and Political Rights’ (n 122) 24. 131 Restatement (n 2) §111(3).
132 Medellin v Texas 552 US 491 (2008).
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This was in response to the fact that the VCCR, the underlying treaty in this case, was ‘understood at all times to be a self-executing treaty’.134
These cases signify a widely inconsistent approach being taken by courts across the US regarding what the non-self-executing declaration means in practice. Such difference in interpretation was raised by the Committee when it provided its comments on the initial US report in 1995. The Committee found that ‘members of the judiciary at the federal, [S]tate and local levels have not been made fully aware of the obligations undertaken by the [s]tate party
under the Covenant’.135 As identified above, this is an ongoing issue as courts are essentially
left to their own devices to interpret the declaration, leading to judicial fragmentation across the US.
Notwithstanding the differing interpretations by State and federal courts alike, it appears that the intention of the SFRC was clear – the ICCPR should not create a ‘private cause of action’ in the US. This is further evidenced by the US in its initial report to the Committee stating that the non-self-executing declaration will not prevent US courts ‘from seeking guidance from the [ICCPR] in interpreting [US] law’.136
However, case law shows that appeals relying on the ICCPR from death row inmates will be unsuccessful. For example, in Buell v. Mitchell, the Sixth Circuit heard an appeal from an Ohio state inmate who had been sentenced to death in 1984 for the murder and sexual assault of an 11-year-old girl.137 Amongst his grounds for appeal was an international element; Buell
argued that ‘Ohio's death penalty statute violate[d] the Supremacy Clause’ as it did not comply with the ICCPR.138 The Sixth Circuit held that his international law argument was ‘wholly
meritless’,139 as the ICCPR does not call for abolition of the death penalty and, in fact, Article
6(2) acknowledges the existence of the death penalty.140 Whilst this is correct, the court failed
to add that Article 6(6) states that ‘[n]othing in this article shall be invoked to delay or to prevent
the abolition of capital punishment by any [s]tate [p]arty to the present Covenant’.141
Furthermore, as Schabas asserted, the travaux préparatoires of the ICCPR ‘indicate that the general purpose of [A]rticle 6…is the limitation of the death penalty, with a view to its eventual
abolition’.142 The Sixth Circuit’s reasoning for dismissing Buell’s claim appeared to be in direct
conflict with Article 6(6); the court was using reference to the death penalty in Article 6(2) to
134 Medellin v Texas 552 US 491 (2008), Brief of International Court of Justice Experts as Amici Curiae in Support of Petitioner
(No 06-984) 2007 WL 1886207 *8. For further discussion of the VCCR issue, see chapter 4.5.
135 UNCHR, ‘Comments of the Human Rights Committee – United States of America’ (n 44) para 15. 136 Ibid para 11. 137 Buell (n 124) 344. 138 Ibid 370. 139 Ibid. 140 Ibid 370-72. 141 ICCPR (n 16) Article 6(6).
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continue administration of the death penalty. The previous Special Rapporteur on extrajudicial, summary and arbitrary executions, Christof Heynes, clarified this point in 2015 by stating that, ‘[t]he fact the death penalty may have a foothold in [A]rticle 6(2), dealing with the right to life, may thus not serve as an argument against the contention that the modern interpretation of
rights…demands an end to this form of punishment’.143 Therefore, the US courts should not
be relying upon Article 6(2) as a refusal to consider a defence under the ICCPR, as the Sixth Circuit did in Buell.
The non-self-executing declaration showed the US’ ‘desire to gain a reputation as a supporter
of human rights, all the while avoiding enforcement of those rights domestically’.144 The SFRC
itself stated that the US had been viewed as ‘hypocritical’ by other nations for criticising human
rights in other countries but not having ratified the ICCPR.145 By acceding to the ICCPR, but
then making it non-self-executing, this, in theory, would allow the US to continue criticising other nations for their human rights records whilst avoiding criticism itself. However, in practice this has not been the case. The US came under fire from states and scholars alike for these
RUDs – to date eleven states have objected to them.146 This is further evidenced by figures
from UPR Info – the leading non-governmental organisation on the UPR – showing the top
issue recommended on in both US UPRs in 2010 and 2015 was ‘international instruments’.147
This included calls from states for the US to remove its RUDs from the ICCPR,148 indicating
that the international community is irked by this treatment of international law by the US.
~
Section 2.3 has considered how the executive and legislative branches of government deal with international law and the death penalty. To understand the role that the UPR can play in the abolition of capital punishment in the US, it is also important to examine how the judicial branch of government considers international law. Therefore, section 2.4 considers how SCOTUS has approached international human rights when interpreting the US Constitution on the question of the death penalty.
143 UNGA ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions’ (2015) UN Doc A/70/304 para
70.
144 Fox (n 61) 311.
145 Senate Committee Report (n 50) 3.
146 Objections were lodged by Belgium, Denmark, Finland, France, Germany, Italy, Netherlands, Norway, Portugal, Spain and
Sweden. Notably all European states.
147 UPR Info, ‘Statistics of Recommendations’ <www.upr-info.org/database/statistics/index_sur.php?fk_sur=186&cycle=1> &
<www.upr-info.org/database/statistics/index_sur.php?fk_sur=186&cycle=2> accessed 24 August 2018.
148 See, UNHRC, ‘Report of the Working Group on the Universal Periodic Review – United States of America’ (4 January 2011)
UN Doc A/HRC/16/11; UNHRC, ‘Report of the Working Group on the Universal Periodic Review – United States of America’ (20 July 2015) UN Doc A/HRC/30/12.
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