Maryland Human Rights Authority

The California Assembly’s recent decision to submit reports relative to its own compliance with ratified human rights treaties to the State Department for consideration by UN Treaty Committees may be politics at its opportune best, but it presents a basic lesson for us in bringing human rights arguments into state court.

As the analysis of the legislation indicates, international human rights treaties and protocols ratified by the U.S. require periodic reports from the federal, state, and local level. But more than that, the nature of federalism requires it. The U.S. Constitution’s supremacy clause makes ratified treaties the “supreme law of the land” binding on the “judges in every state.”  [U.S. Const. Art. VI, cl.2.] But as Martha Davis noted in a 2006 law review article, the “federal system reserves significant regulation of entire substantive categories such as criminal, family and social welfare law to subnational  governments.” [See US v. Morrison, 529 U.S. 528, 615-16 (2000) (noting that family law is an area of traditional state regulation)]. Were the federal government responsible alone for ensuring treaty compliance, treaties would fall into an “implementation gap,” where state power could thwart national obligations.

Indeed, the U.S. recognized this when it ratified the International Covenant on Civil and Political Rights (ICCPR) in 1992. As the Senate said, in the Reservations, Understandings, and Declarations that accompanied treaty ratification, “the Covenant shall be implemented by the Federal Government to the extent it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments.” [138 Cong. Rec. 8068, 8071 (1992).] And in its first report to the UN under the ICCPR, the U.S. again averred that it was “a government of limited authority and responsibility…[and that] state and local governments exercise[d] significant responsibility in many areas, including matters such as education, public health, business organization, work conditions, marriage and divorce, the care of children, and exercise of ordinary police power . . . some areas covered by the covenant fall into this category.   U.S. Initial Report, UN Co. CCPR/C/81 (Aug.24, 1994).

In short, the California Assembly is recognizing a fundamental fact of federalism that also is key to bringing human rights home to Maryland: state adherence to U.S. ratified treaties and protocols is not optional–it’s expected.