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Unpublished Paper
42 U.S.C. § 1983: A LEGAL VEHICLE WITH NO INTERNATIONAL HUMAN RIGHTS TREATY PASSENGERS
ExpressO (2010)
  • Matthew J. Jowanna
Abstract

How do international human rights treaties interact with the domestic civil rights law of the United States, and particularly 42 U.S.C. § 1983? How should international human rights treaties interact with the domestic civil rights law of the United States? “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.” Whether fully implemented in domestic law or not, the United States is obligated to respect the international treaties it ratifies. However, exactly how has this been done, or not done in practice, regarding 42 U.S.C. § 1983 and international human rights treaties?

This article begins with an examination of the three most recent international human rights treaties ratified by the United States of America: 1) the International Covenant on Civil and Political Rights; 2) the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; and 3) the International Convention on the Elimination of All Forms of Racial Discrimination. This article also addresses the conditions upon which these three conventions were ratified by the United States. Next, this article addresses the international reaction to the position of the United States in regard to the ratification of international human rights treaties. This article then analyzes the applicability of 42 U.S.C. § 1983 as being an appropriate legal vehicle for the domestic litigation of international treaty violations. Next, this article discusses, in more detail, exactly what it means for a treaty to contain a non-self-executing declaration and how such a declaration directly affects the attempted use of 42 U.S.C. § 1983 to litigate international treaty violations in domestic courts. Finally, this article sets forth a few theories for why the United States has not ratified human rights treaties on an all-inclusive basis and concludes that, nevertheless, the ratification of international human rights conventions by the United States is a positive first step. However, it is now time for the United States to take the next logical step in promoting human rights by withdrawing its reservations, understandings and declarations to the international human rights conventions it has ratified.

The United States, in ratifying the CCPR, CAT and CERD by conditioning the human rights elicited to the confines of existing domestic law, deprives the international community of the commitment of the United States to the full scope of the rights the treaties were truly intended to provide and protect. Moreover, by not making the treaty obligations self-executing, the United States also denies its own citizens of any new domestically enforceable human rights. By declaring these treaties to be non-self-executing, the United States deprives its own citizens of a form of justice by squelching additional sources of substantive rights that otherwise could be enforced by the use of 42 U.S.C. § 1983. For these reasons, the United States should take the next step for the promotion of civil and human rights and rescind these reservations, understanding and declarations. By doing so, the United States would honor its international human rights obligations on a more even level with the rest of the international participants, while also providing its own citizens, through the use of 42 U.S.C. § 1983, with new sources of enforceable substantive rights.

The reasoning of the United States appears to be circular in that it attempts to limit its international obligations by the scope of its national law while, at the same time, limiting its national law by making its international human rights obligations unenforceable in domestic courts. Arguably, this circular reasoning could also be considered as the United States acting with less than complete good faith. However, the fact that the United States has ratified the CCPR, CAT and CERD, at all, is still a good thing. It is still a very positive first step. Ratification now requires the United States to report to the United Nations, and subjects the United States to corrective criticism from the international community. While the author of this article is somewhat skeptical that the United States will ever actually withdraw its reservations, understandings and declarations, the fact remains that the United States is required to continue in its reporting and will continue to be critiqued by the rest of the world. Maybe, just maybe, the United States may actually implement a change for the better based upon the power of international suggestion. At least the seed has been planted. Maybe, one day, the choking weeds, in the form of reservations, understandings and declarations, will be removed; thus, allowing a mighty tree of universally applied civil and human rights to grow.

Keywords
  • Civil Rights,
  • Human Rights,
  • 42 U.S.C. § 1983,
  • CAT,
  • CERD,
  • CCPR,
  • International Law,
  • Treaty,
  • Treaties,
  • Covenant on Civil and Political Rights,
  • Convention against Torture and other Cruel,
  • Inhuman or Degrading Treatment or Punishment,
  • International Convention on the Elimination of All Forms of Racial Discrimination
Disciplines
Publication Date
2010
Citation Information
Matthew J. Jowanna. "42 U.S.C. § 1983: A LEGAL VEHICLE WITH NO INTERNATIONAL HUMAN RIGHTS TREATY PASSENGERS" ExpressO (2010)
Available at: http://works.bepress.com/matthew_jowanna/3/