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JULY 1994


A. Legal Framework

The essential guarantees of human rights and 
fundamental freedoms within the United States are 
set forth in the Constitution and statutes of the 
United States, as well as the constitutions and 
statutes of the several states and other constituent 
units.  In practice, the enforcement of these 
guarantees ultimately depends on the existence of an 
independent judiciary with the power to invalidate 
acts by the other branches of government which 
conflict with those guarantees.  Maintenance of a 
republican form of government with vigorous 
democratic traditions, popularly elected executives 
and legislatures, and the deep-rooted legal 
protection of freedoms of opinion, expression and 
the press, all contribute to the protection of 
fundamental rights against governmental limitation 
and encroachment. 

U.S. Constitution.  Since the Constitution was 
ratified in 1789, there have been 27 amendments to 
it.  Amending the Constitution requires approval by 
two-thirds of the Congress, or by a national 
convention, followed by ratification by three- 
quarters of the states.  The first ten amendments, 
known collectively as the Bill of Rights, were added 
in 1791.  These amendments provide for the basic 
protection of those individual rights which are 
fundamental to the democratic system of government.  
They remain at the heart of the U.S. legal system 
today, just as they were written two centuries ago, 
although the specific rights they guarantee have 
been extensively elaborated by the judiciary over 
the course of time.  Individuals may assert these 
rights against the government in judicial 

The First Amendment guarantees freedom of worship, 
speech and press, the right of peaceful assembly, 
and the right to petition the government to correct 
wrongs.  The Second Amendment restricts the federal 
government from infringing on the right of citizens 
to keep and bear arms, bearing in mind the necessity 
for a "well regulated militia."  The Third Amendment 
provides that troops may not be quartered in a 
private home without the owner's consent.  The 
Fourth Amendment guards against unreasonable 
searches, arrests and seizures of persons and 

The next four amendments deal with the system of 
justice.  The Fifth Amendment forbids trial for a 
major crime except after indictment by a grand jury; 
it prohibits repeated trials for the same offense, 
forbids punishment without due process of law, and 
provides that an accused person may not be compelled 
to testify against oneself.  The Sixth Amendment 
guarantees a speedy public trial for criminal 
offenses; it requires trial by an unbiased jury, 
guarantees the right to legal counsel for the 
accused, and provides that witnesses shall be 
compelled to attend the trial and testify in the 
presence of the accused.  The Seventh Amendment 
assures trial by jury in civil cases involving 
anything valued at more than 20 U.S. dollars.  The 
Eighth Amendment forbids excessive bail or fines, 
and cruel or unusual punishment.

The last two of the first 10 amendments contain very 
broad statements of constitutional authority.  The 
Ninth Amendment declares that the listing of 
individual rights is not meant to be comprehensive, 
and that the people have other rights not 
specifically mentioned in the Constitution.  
Importantly, the Tenth Amendment provides that 
powers not delegated by the Constitution to the 
federal government, nor prohibited by it to the 
states, are reserved to the states or the people.

Amendments to the Constitution subsequent to the 
original Bill of Rights cover a wide range of 
subjects.  One of the most far-reaching is the 
Fourteenth Amendment, by which a clear and simple 
definition of citizenship was established and 
broadened guarantees of due process, equal 
treatment, and equal protection of the law were 
confirmed.  In essence, this amendment, adopted in 
1868, has been interpreted to apply the protections 
of the Bill of Rights to the states.  By other 
amendments, the judicial power of the national 
government was limited; the method of electing the 
president was changed; slavery was forbidden; the 
right to vote was protected against denial because 
of race, color, sex or previous condition of 
servitude; the congressional power to levy taxes was 
extended to incomes; and the election of U.S. 
Senators by popular vote was instituted. 

The Constitution provides explicitly that it is the 
"supreme Law of the Land."  This clause is taken to 
mean that when state constitutions or laws passed by 
state legislatures or laws adopted by the federal 
government are found to conflict with the 
Constitution, they have no force or effect.  
Decisions handed down by the Supreme Court of the 
United States and subordinate federal courts over 
the course of two centuries have confirmed and 
strengthened this doctrine of constitutional 

State Constitutions.  As indicated above, the 
protections provided by the federal Constitution and 
statutes are applicable nationwide, generally 
providing a minimum standard of guarantees for all 
persons in the United States.  While the law of 
individual states may therefore offer citizens no 
less than the protection guaranteed by the 
Constitution, states may offer greater protection of 
civil and political rights.  During the most intense 
period of civil and political rights advancement 
during the past three decades, the federal courts 
were largely at the forefront.  Accordingly, state 
courts were called upon less frequently to rule on 
civil rights issues.  Gradually, however, some state 
courts were presented with state constitutional 
questions regarding human rights and in many cases 
found that state constitutions provided greater 
protection than the federal Constitution required.  
While the extent to which state courts may interpret 
their constitutions more expansively than the 
federal Constitution is not settled, the Supreme 
Court has in fact upheld a state court determination 
that the right to freedom of expression and petition 
accorded by the state constitution was broader than 
the federal First Amendment right.  Prune Yard 
Shopping Center v. Robins, 447 U.S. 74 (1980) 
(upholding the California Supreme Court in Robins v. 
Prune Yard Shopping Center, 592 P.2d 341 (Cal. 

State courts have interpreted their constitutions 
more expansively than the federal Constitution in a 
number of areas, including free speech, religious 
liberty, the provision of government services, and 
the right to privacy in the home.  State 
constitutions vary widely in length, detail, and 
similarity to the U.S. Constitution.  As a result, a 
state court decision, while it may expand upon a 
right protected by the U.S. Constitution, may rest 
on grounds very different from those upon which a 
similar federal case would be decided. 

With regard to religious liberty and separation of 
church and state, both Idaho and Nebraska are 
examples where the state constitution has been found 
to require a more rigorous separation of church and 
state than the First Amendment requires.  Based on 
the state constitution's broad prohibition of 
governmental assistance to an institution not owned 
by the state, the Supreme Court of Nebraska found 
unconstitutional a statute under which public school 
books were loaned to parochial schools; on similar 
grounds, the Supreme Court of Idaho struck down a 
statute authorizing publicly provided transportation 
of students to nonpublic schools.  Gaffney v. State 
Department of Education, 220 N.W.2d 550 (Neb. 1974);  
Epeldi v. Engelking, 488 P.2d 860 (Id. 1971).  While 
the U.S. Supreme Court has ruled that the display of 
a nativity scene on public property did not violate 
the Establishment Clause,  the California Supreme 
Court has nonetheless held that the state 
constitution's ban on preference for religious sects 
prohibited the display of a lighted cross on public 
grounds in celebration of Christmas and Easter.  
Lynch v. Donnelly, 465 U.S. 668 (1984);  Fox v. City 
of Los Angeles, 587 P.2d 663 (Cal. 1978).

State courts have also interpreted a state right to 
equal access to government benefits more broadly 
than the Supreme Court has interpreted a similar 
federal right.  In 1980, the U.S. Supreme Court held 
that while women have a right to choose an abortion, 
they do not have a federal right to financial 
support and federal health benefits for obtaining an 
abortion.  Harris v. McRae, 448 U.S. 297 (1980).  
The Massachusetts Supreme Judicial Court, in 
contrast, has held that under the Massachusetts 
Declaration of Rights, once the state has allocated 
public funds for child-bearing and health in 
general, the state must show "genuine indifference" 
in that allocation and consequently fund abortions 
as well.   Moe v. Secretary of Administration, 417 
N.E.2d 387 (Mass. 1981).

Similarly, state courts have found that the right to 
privacy under state law may be far broader than that 
guaranteed by the penumbra of privacy rights 
guaranteed by the U.S. Constitution, as determined 
by the Supreme Court.  The Supreme Court of Alaska, 
for example, has found a right to use marijuana in 
the home to be within the state constitution's 
privacy provisions.  See Breese v. State, 501 P.2d 
159 (Alas. 1972).

Despite these examples, state courts are not uniform 
in their willingness to find greater protections 
within the state constitutions than those guaranteed 
by the federal government.  Termed "judicial 
federalism," the practice at times has been sharply 
criticized as an ineffective method for protecting 
individual rights.

Statutes.  There is no single statute or mechanism 
by which basic human rights and fundamental freedoms 
are guaranteed or enforced in the U.S. legal system.  
Rather, domestic law provides extensive protection 
through enforcement of the constitutional provisions 
cited above and a variety of statutes which 
typically provide for judicial and/or administrative 

At the federal level, for example, the 
constitutional protection afforded by the Equal 
Protection Clause of the Fourteenth Amendment 
against  discrimination by the state governments on 
the basis of race, color or national origin has been 
applied to the federal government through the Fifth 
Amendment.  It has also been supplemented by a 
number of specific federal statutes, including the 
1866 and 1871 Civil Rights Acts (protecting property 
rights, freedom to contract, and providing federal 
remedies for private individuals subjected to 
unlawful discrimination by persons acting under 
color of law), the 1964 Civil Rights Act (ensuring 
equal treatment in places of public accommodation, 
non- discrimination in federally funded programs, 
and nondiscrimination in employment), the 1965 
Voting Rights Act (invalidating discriminatory voter 
qualifications), and the 1968 Fair Housing Act 
(providing the right to be free from discrimination 
in housing).  Similarly, in the area of gender 
discrimination, individuals benefit from the 
protections of the Equal Protection Clause, the 1963 
Equal Pay Act (equal pay for equal work), the Civil 
Rights Act of 1964 (nondiscrimination in hiring and 
employment practices and policies), the Education 
Amendments of 1972 (assuring gender equality in 
education), the Equal Credit Opportunity Act (equal 
access and nondiscrimination in credit and lending), 
the Fair Housing Act (nondiscrimination in housing, 
real estate and brokerage), and the Pregnancy 
Discrimination Act of 1978.  Protection against age 
discrimination is provided by the Age Discrimination 
in Employment Act of 1967 (prohibiting 
discrimination in employment against workers or 
applicants 40 years of age or older).  The Civil 
Rights of Institutionalized Persons Act of 1980 
provides protection to mentally disabled persons in 
state facilities.  Although disabled persons have 
long been protected against discrimination in the 
federal service, an important and much broader set 
of protections was recently added with the enactment 
of the Americans with Disabilities Act of 1990, 
which prohibits discrimination against disabled 
individuals in employment, public accommodations, 
state and local government services, and public 
transportation.  The Indian Civil Rights Act of 1968 
imposes upon tribes such basic requirements as free 
speech protection, free exercise of religion, due 
process and equal protection.  

Most states and large cities have adopted their own 
statutory and administrative schemes for protecting 
and promoting basic rights and freedoms.  For the 
most part, state statutory protections mirror those 
provided by the U.S. Constitution and federal law.  
Typically, state constitutions and statutes protect 
individuals from discrimination in housing, 
employment, accommodations, credit and education.  
For example, Minnesota's statute prohibits 
discrimination in sales, rentals or lease of 
housing.  Minn. Stat. (section mark) 363.03 (1992).  
Massachusetts makes it unlawful to refuse to hire or 
to discharge someone from employment on 
discriminatory grounds, or to discriminate in 
education.  Mass. Ann. Laws ch. 151B,   4 ch. 151C, 
  1 (1993).  California requires that all persons be 
"free and equal" in accommodations, advantages, 
facilities, privileges and services of business 
establishments.  Cal. Civ. Code   51 (1993).  Texas 
prohibits discrimination in credit or loans.  Tex. 
Rev. Civ. Stat. Ann. art. 5069-207 (1993).

To varying extents, states may provide protection 
exceeding the minimum  requirements of federal law.  
For example, Massachusetts extends its employment 
discrimination protection to prohibit discrimination 
on the basis of sexual orientation.  Mass. Ann. Laws 
ch. 151B,   4 (1993).  California's Street Terrorism 
Enforcement and Protection Act ensures every person 
freedom from "intimidation, physical harm, and the 
activities of violent groups and individuals" 
regardless of race, color, creed, religion, national 
origin, sex, age, sexual orientation or handicap.  
Cal. Pen. Code   186.21 (1993).  Texas forbids 
discrimination in the provision of emergency medical 
services.  Tex. Health & Safety Code Ann.   311.02 

Derogation/States of Emergency.  Neither the 
Constitution nor the laws of the United States 
provide for the declaration of a general state of 
emergency entailing suspension of the normal 
operations of the government or permitting 
derogations from fundamental rights.  On the 
contrary, the basic requirement for a republican 
form of government, the general functions of the 
three branches of the federal government, and most 
of the fundamental civil and political rights 
enjoyed by individuals, are all enshrined in the 
Constitution and thus remain in effect at all times, 
even during crisis situations.

The one exception to this rule concerns the 
privilege of the writ of habeas corpus.  Article I, 
  9, cl. 2 of the Constitution states that the 
privilege shall not be suspended, "unless when in 
cases of rebellion or invasion the public safety may 
require it."  Congress is considered to hold the 
authority to suspend the privilege; President 
Lincoln suspended the privilege during the Civil War 
but  sought congressional authorization for his 
actions.  Ex Parte Bollman, 8 U.S. (4 Cranch) 74, 
101 (1807); Ex Parte Merryman, 17 Fed. Cas. 144 (No. 
9487) (C.C.D. Md. 1861) (Circuit Justice Taney found 
Lincoln s action invalid).  The privilege has been 
suspended only three other times, each pursuant to 
an act of Congress.

At the national level, there is a general statutory 
prohibition against the use of the armed forces for 
domestic law enforcement purposes.  However, the 
President is authorized in limited circumstances to 
order the use of federal troops to assist state and 
local authorities in controlling violence and to 
suppress insurrections and enforce federal law.  The 
President may also declare an emergency with respect 
to catastrophic domestic situations (for example, in 
the event of an earthquake, a hurricane, flooding or 
a drought), thus permitting the federal government 
to provide disaster relief and emergency assistance 
to state and local governments and to the individual 
victims of the crisis.  These laws do not, however, 
permit the executive branch to interfere with the 
responsibilities of the legislative or judicial 
branches of the federal government or to arrogate 
the authority of the states.

Other statutes permit the President to declare 
national emergencies with respect to foreign affairs 
and international economic transactions (thus 
providing a basis, for example, for implementation 
of international sanctions imposed by the U.N. 
Security Council or other competent international 
authority).  While these laws permit the imposition 
of civil and criminal penalties for prohibited 
activities, they remain subject to constitutional 
limitations and do not circumscribe basic human 
rights or permit interference in the normal 
functioning of the government.

Under state and local law, the responsible 
authorities (state governors, city mayors, county 
executives) are typically permitted to take a wide 
range of emergency actions pursuant to the general 
"police power" in order to respond to emergencies 
(for example, by imposing curfews in cases of civil 
unrest, establishing quarantines in response to 
public health concerns, and restricting water usage 
in the event of drought).  While the "police power" 
is reserved to the states under the Constitution, 
actions taken pursuant to it may not limit or 
infringe upon federally-protected rights.  
Individuals thus retain their constitutional 
protections and human rights at all times and may 
challenge the exercise of emergency authority in the 
courts.  As a general rule, the exercise of 
emergency authority by the government -- at any 
level  -- is given particularly careful judicial 
scrutiny when it infringes upon individual rights 
and liberties.  In several notable cases, the U.S. 
Supreme Court has invalidated presidential actions 
taken in emergency situations. 

B. Responsible Authorities

Within the federal government, all three branches 
share responsibility for the protection and 
promotion of fundamental rights under the 
Constitution and the statutes of the United States.  
The President is responsible for enforcing the law.  
Within the Department of Justice, the Civil Rights 
Division bears principal responsibility for the 
effective enforcement of federal civil rights laws.  
These include the various civil rights acts 
mentioned above as well as specific criminal 
statutes prohibiting willful deprivation of 
constitutional rights by officials acting with 
actual or apparent legal authority or through 
conspiracy, involuntary servitude, and violent 
interference with federally-protected activities.  
In addition, most other agencies have civil rights 
sections charged with enforcing civil rights issues 
within their scope of authority.

The U.S. Commission on Civil Rights, a statutorily-
established independent agency within the executive 
branch, collects and studies information on 
discrimination or denials of equal protection of the 
laws because of race, color, religion, sex, age, 
handicap, national origin or in the administration 
of justice in such areas as voting rights, 
enforcement of civil rights laws, and equality of 
opportunity in education, employment and housing.  
It also evaluates federal laws and the effectiveness 
of governmental equal opportunity programs and 
serves as a clearing house for civil rights 
information.  The Commission makes findings of fact 
and recommendations for the President and the 
Congress but has no independent enforcement 

The U.S. Equal Employment Opportunity Commission, 
also an independent agency within the executive 
branch, works to eliminate discrimination based on 
race, color, religion, sex, national origin, 
disability or age in all aspects of the employment 
relationship.  The Commission conducts 
investigations of alleged discrimination, makes 
determinations based on gathered evidence, attempts 
conciliation when discrimination has occurred, files 
lawsuits, and conducts voluntary assistance programs 
for employers, unions and community organizations.  
The Commission has oversight responsibility for all 
compliance and enforcement activities relating to 
equal employment opportunity among federal employees 
and applicants, including discrimination against 
individuals with disabilities.

At the state and local levels, a variety of schemes 
and mechanisms exists to protect and promote basic 
rights.  At the state level, enforcement 
responsibility is typically found in the Attorney 
General's Office or in  separate civil or human 
rights offices within the state government or at the 
county level.  Examples include the Massachusetts 
Commission Against Discrimination, the Illinois 
Department of Human Rights, the Cook County 
(Illinois) Human Rights Commission, the California 
Fair Employment and Housing Department, and the 
Texas Commission on Human Rights.  Many large city 
governments have also established offices or 
commissions to address civil rights and 
discrimination issues.  These organizations vary.  
Some emphasize enforcement of housing and employment 
anti-discrimination laws.  Others facilitate 
community development and strategies to address 
human rights issues.  Examples include the Boston 
(Massachusetts) Human Rights Commission, the Chicago 
(Illinois) Commission on Human Relations, the Los 
Angeles (California) Human Relations Commission, and 
the Austin (Texas) Human Rights Commission.

Nongovernmental organizations also play an important 
role in ensuring the protection and promotion of 
human rights within the United States.  Professional 
groups such as the American Bar Association and the 
various state and local bar associations provide 
legal expertise as well as forums for the 
development of considered positions on legal 
developments and matters of human rights concern.  A 
number of organizations devoted primarily to human 
rights, including among many others the NAACP Legal 
Defense and Education Fund, The Mexican-American 
Legal Defense Fund, the National Council of La Raza, 
Amnesty International, Human Rights Watch, the 
Lawyer's Committee for Human Rights, and the 
International Human Rights Law Group, are active 
participants at the national level.  Many church and 
religious groups, as well as organizations 
representing particular constituencies with 
particular human rights concerns (such as women, 
children, the disabled, the indigenous) are actively 
involved in the consideration and application of 
laws relating to their constituencies.

C. Remedies

U.S. law provides extensive remedies and avenues for 
seeking redress for alleged violations of basic 
rights and fundamental freedoms.  The principal 
method, if administrative remedies are insufficient 
to produce the desired result, is through recourse 
to court.  A person claiming to have been denied a 
constitutionally protected right may assert that 
right directly in a judicial proceeding in state or 
federal court.  In addition, in instances involving 
"state action" or actions "under color of state 
law," the injured party may seek civil damages and 
injunctive relief against the individual responsible 
for the denial of rights under the Civil Rights Act 
of 1871,  42 U.S.C.   1983.  Federal officials may 
be sued for damages directly under provisions of the 
Constitution, subject only to various doctrines of 
immunity from liability.

Many federal statutes specifically provide for 
enforcement through  administrative procedures or by 
civil actions filed in court.  All states have 
judicial procedures by which official action may be 
challenged, though the procedure may go by various 
names (such as "petition for review").  

Where Congress has so provided, the federal 
government may bring civil actions to enjoin acts or 
patterns of conduct that violate some constitutional 
rights.  This is the case, for example, under the 
principal civil rights acts discussed above.  Thus, 
the Attorney General can sue under the Civil Rights 
of Institutionalized Persons Act to vindicate the 
rights of persons involuntarily committed to 
prisons, jails, hospitals, and institutions for the 
mentally retarded.  Similarly, the Voting Rights Act 
of 1965 authorizes the Attorney General to bring 
suit to vindicate the right to vote without 
discrimination based on race.  The federal 
government may also prosecute criminally the 
violations of some civil rights, for example, the 
denial of due process through the abuse of police 
power and conspiracies to deny civil rights.  The 
government may also bring criminal prosecutions 
against defendants for use of force or threat of 
force to violate a person's rights.

Any person prosecuted under a statute or in 
conjunction with a governmental scheme (such as jury 
selection) which he or she believes to be 
unconstitutional may challenge that statute as part 
of the defense.  This may be done in the context of 
federal or state prosecutions.  Even in civil 
actions, the defendant may pose a constitutional 
challenge to the statute that forms the basis of the 
suit.  Any court, from the lowest to the United 
States Supreme Court, may consider such a claim of 
unconstitutionality, though normally it must be 
raised at the earliest opportunity to be considered 
at all.  Detention pursuant to a statute believed to 
be unconstitutional or as a result of a procedure 
that allegedly violated a constitutional right may 
also be challenged by a writ of habeas corpus in 
state and/or federal court.  To a limited degree, 
post- conviction relief is also available by state 
and federal writs of habeas corpus or, in the case 
of federal convictions, by a motion for relief from 
a sentence.  All states have similar remedies as 
part of their criminal procedure. 

D. Human Rights Instruments

Multilateral Treaties.

The United States is at present party to the 
following multilateral human rights instruments:

-- the Convention to Suppress the Slave Trade and 
Slavery, done at Geneva on September 26, 1926, and 
its amending protocol, done at New York on Dec. 7, 

-- the Supplementary Convention on the Abolition of 
Slavery, the Slave Trade and the Institutions and 
Practices Similar to Slavery, done at Geneva on 
September 7, 1956

-- the UN Protocol Relating to the Status of 
Refugees, done at New York on January 31, 1967

-- the Inter-American Convention on the Granting of 
Political Rights to Women, done at Bogota on May 2, 

-- the Convention on the Political Rights of Women, 
done at New York on March 31, 1953

-- the Convention on the Prevention and Punishment 
of the Crime of Genocide, done at Paris on March 9, 

-- ILO Convention No. 105 on Forced Labor, done at 
Geneva on June 25, 1957

-- the International Covenant on Civil and Political 
Rights, adopted by the UN General Assembly on 
December 16, 1966.

In addition, the United States is moving actively to 
ratify three other treaties:

-- the Convention Against Torture and Other Cruel, 
Inhuman or Degrading Treatment or Punishment, 
adopted by the UN General Assembly on December 10, 
1984, to which the Senate gave advice and consent to 
ratification in 1990

-- the International Convention on the Elimination 
of All Forms of Racial Discrimination, adopted by 
the UN General Assembly on December 21, 1965, signed 
by the United States in 1966, and given advice and 
consent to ratification in 1994

-- the Convention on the Elimination of All Forms of 
Discrimination Against Women, adopted by the UN 
General Assembly on December 18, 1979.

Moreover, the United States has signed but not yet 
ratified the following multilateral human rights 
treaties:             the International Covenant on 
Economic, Social and Cultural Rights, adopted by the 
UN General Assembly on December 16, 1966

-- the American Convention on Human Rights, done at 
San Jose on November 22, 1969.

In addition, the United States has entered into many 
bilateral treaties (including consular treaties and 
treaties of friendship, commerce and navigation) 
which contain provisions guaranteeing various rights 
and protections to nationals of foreign countries on 
a reciprocal basis.  In some cases, these may be 
invoked directly in U.S. courts for that purpose.   
Treaties as Law.  Under the Constitution, duly-
ratified treaties are the supreme law of the land, 
equal with enacted federal statutes.  Accordingly, 
they displace previously adopted federal law and may 
be displaced by subsequently adopted federal law to 
the extent of any inconsistency.  As federal law, 
they also prevail over inconsistent state and local 
law.  Where they touch on matters previously within 
the purview of state and local government (as 
opposed to the federal government), they may also 
serve to "federalize" the issue, thus affecting the 
allocation of authority between the states and the 
central government.

Historically, the prospect that the constitutional 
treaty power could be used to override or invalidate 
state and local law generated considerable domestic 
political controversy, especially when it concerned 
individual rights.  Although it has been recognized 
that Congress may act under the treaty power when it 
might not otherwise have the authority to do so (see 
Missouri v. Holland, 252 U.S. 416 (1920)), reliance 
upon that power to legislate changes in state and 
local law has been considered by some to be an 
interference with the rights of the constituent 
states reserved to them under the Constitution.  
Consequently, the expectation has been that any 
changes to U.S. law required by treaty ratification 
will be accomplished in the ordinary legislative 

Also, as a matter of domestic law, treaties as well 
as statutes must conform to the requirements of the 
Constitution; no treaty provision will be given 
effect as U.S. law if it conflicts with the 
Constitution.  Reid v. Covert, 354 U.S. 1 (1957).  
Thus, the United States is unable to accept a treaty 
obligation which limits constitutionally protected 
rights, as in the case of Article 20 of the Covenant 
on Civil and Political Rights, which infringes upon 
freedom of speech and association guaranteed under 
the First Amendment to the Constitution. 

Consequently, in giving advice and consent to 
ratification of a treaty concerning the rights of 
individuals, Congress must give careful 
consideration to the specific provisions of the 
treaty and to the question of consistency with 
existing state and federal law, both constitutional 
and statutory.  When elements or clauses of a treaty 
conflict with the Constitution, it is necessary for 
the United States to take reservations to those 
elements or clauses, simply because neither the 
President nor Congress has the power to override the 
Constitution.  In some cases, it has been considered 
necessary for the United States to state its 
understanding of a particular provision or 
undertaking in a treaty, or to make a declaration of 
how it intends to apply that provision or 

Implementation.  In the U.S. system, a treaty may be 
"self-executing," in which case it may properly be 
invoked by private parties in litigation without any 
implementing legislation, or "non-self-executing," 
in which case its provisions cannot be directly 
enforced by the judiciary in the absence of 
implementing legislation.  This distinction derives 
from the Supreme Court's interpretation of Article 
VI, cl. 2, of the Constitution.  The distinction is 
one of domestic law only; in either case, the treaty 
remains binding on the United States as a matter of 
international law.  Thus, in the case of human 
rights treaties, a "non- self-executing" treaty does 
not, in and of itself, accord individuals a right to 
seek enforcement of its protections in a domestic 
court, even though the United States continues to be 
bound to recognize those protections.         So 
long as it complies with its undertakings and 
responsibilities under duly ratified treaties, the 
United States considers that it remains generally 
free to determine the specific modalities of treaty 
implementation under domestic law.  In other words, 
unless it has specifically agreed to make the 
provisions of a given treaty part of the judicially-
enforceable body of domestic law, the United States 
may follow the alternatives available to it under 
its own law for implementing treaty obligations in 
domestic law.

When necessary to carry out its treaty obligations, 
the United States generally enacts implementing 
legislation rather than relying on a treaty to be 
"self-executing."  Thus, for example, to implement 
the Genocide Convention, the U.S. Congress adopted 
the Genocide Convention Implementation Act of 1987, 
codified at 18 U.S.C.    1091-93.  When such 
legislation is required, the United States will not 
deposit its instrument of ratification until the 
necessary legislation has been enacted.  It is for 
this reason, for example, that the United States has 
refrained from depositing its instrument of 
ratification for the Torture Convention, even though 
the Senate gave its advice and consent to 
ratification of that treaty in 1990.  Implementing 
legislation was only approved by the Congress and 
enacted by the President in May 1994.

However, the United States does not believe it 
necessary to adopt implementing legislation when 
domestic law already makes adequate provision for 
the requirements of the treaty.  Again, the Torture 
Convention provides a case in point.  While final 
ratification awaited enactment of legislation giving 
U.S. courts criminal jurisdiction over 
extraterritorial acts of torture which had not 
previously been covered by U.S. law, no new 
implementing legislation was proposed with respect 
to torture within the United States because U.S. law 
at all levels already prohibited acts of torture 
within the meaning of the Convention.  Similarly, 
because the basic rights and fundamental freedoms 
guaranteed by the Covenant on Civil and Political 
Rights (other than those to which the United States 
took a reservation) have long been protected as a 
matter of federal constitutional and statutory law, 
it was not considered necessary to adopt special 
implementing legislation to give effect to the 
Covenant's provisions in domestic law.  That 
important human rights treaty was accordingly 
ratified in 1992 shortly after the Senate gave its 
advice and consent.

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