Maryland Human Rights Authority

Most human rights covenants and treaties ratified by the U.S. contain Reservations, Understandings, and Declarations (RUDs), one of which indicates the treaties themselves are not “self-executing.”

While officially recognized in Whitney v. Robertson, 124 U.S. 190 (1888),  Justice John Marshall first posited the doctrine 59 years earlier in Foster v. Neilson, 27 US 253 (1829). The concept distinguishes between treaties that are automatically incorporated into domestic law upon ratification (“self-executing”), and those that require further implementing legislation to gain domestic legal effect (“non self-executing” or NSE).

Jimmy Carter, the first U.S. President to submit human rights treaties to the Senate for ratification, packaged them with NSE declarations and testimony that clearly embraced the NSE concept articulated in Foster: “implementing” legislation subsequent to treaty ratification was necessary to enforce treaty claims judicially. As Carter’s submissions languished in the Senate, the Reagan, Bush, and Clinton administrations re-submitted some of them, and added further treaties for ratification, all with identical NSE declarations.

In the meantime, a more nuanced NSE concept developed, one where treaty ratification alone allows litigants to raise treaty-based claims defensively, but precludes affirmative treaty claims absent implementing legislation. This “no private cause of action” concept was first suggested in testimony to the Senate by the H.W. Bush administration and later fully embraced by Clinton’s. The Senate ratified the International Covenant on Civil and Political Rights (ICCPR) under Bush, and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) under Clinton.

As David Sloss concluded in a Yale Law Journal article, the “no private cause of action” concept is the only way to reconcile what appear to be two incongruous U.S. objectives: to comply with treaties and yet avoid domestication. To date, a case law search reveals few guiding principles relative to NSEs. The Supreme Court’s latest installment on the subject, Medillin v. Texas, 552 U.S. 491 (2008), continues the muddle, with a Roberts-led majority searching in vain for specific self-execution language in the treaties at issue there, but a Breyer-led dissent chronicling the times the court looked beyond plain language to give treaties domestic effect.

The conclusion? There is sound authority that treaty-based defenses can be raised in court (see this 2010 Connecticut case), but little to support court enforcement affirmatively. Of course, using human rights law for its persuasive value in interpreting or developing existing law is always an option, both affirmatively and defensively. And, as Sloss notes, the NSE case law and debate has always left open the possibility of affirmative enforcement of treaty claims in administrative forums controlled by the executive branches of government.