The New Isolationism: Non-Self-Execuition Declarations and Treaties as the Supreme Law of the Land
![handle is hein.journals/glj91 and id is 1291 raw text is: NOTE
The New Isolationism: Non-Self-Execution
Declarations and Treaties as the Supreme Law of
the Land
DAVID N. CINoTri*
INTRODUCTION
In December 1966, the International Covenant on Civil and Political Rights
(ICCPR) was opened for signature; 151 countries are now parties to this treaty,
the most comprehensive international expression of civil rights ever articulated.
Although the ideals embodied in the ICCPR are derived from U.S. roots,2 it
took twenty-six years for the United States to sign and ratify the treaty3-and
ratification was not unconditional.4 The U.S. Senate attached the following
declaration to its resolution of advice and consent: [Tihe United States declares
* J.D., Georgetown University Law Center, 2003. 1 would like to thank Professors Don Wallace, Jr.,
Kenneth A. Lazarus, and C. Dean McGrath, Jr., for their guidance in drafting this Note. I would also
like to thank Professor Carlos Vdzquez for taking the time to discuss this Note with me during the
editing process.
1. Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].
2. See, e.g., id. at 173 (echoing President Franklin D. Roosevelt's call to ensure freedom from fear
and freedom from want); cf. Richard B. Lillich, The United States Constitution and International
Human Rights Law, 3 HARV. HUM. RTS. J. 53, 56 (1990) (noting that U.S. constitutional law has been a
model used in development of international human rights law).
3. The United States signed the ICCPR on October 5, 1977 and deposited its instrument of
ratification with the UN on June 8, 1992. United Nations Treaty Collection, at http://untreaty.un.org;
see also S. EXEC. REP. No. 102-23, at 1 (1992) (resolving to give advice and consent to ratification of
ICCPR).
4. The term conditional consent has been used to describe the various ways in which the U.S.
Senate limits or clarifies its consent to a multilateral treaty regime. See generally Curtis A. Bradley &
Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. PA. L. REV. 399 (2000).
Two such devices are non-self-execution declarations and reservations. Non-self-execution declarations
are different from reservations to a treaty because the former are only meant to affect U.S. domestic
law. Id. at 419-20. Reservations, on the other hand, are a means by which the United States rejects
specific provisions of a treaty. Id. at 417. However, unilateral declarations and reservations do have
similarities. Under international law, reservations are permitted unless prohibited by the treaty text or
incompatible with the object and purpose of the treaty. Vienna Convention on the Law of Treaties, May
23, 1969, art. 19, 1155 U.N.T.S. 331, 336-37 [hereinafter Vienna Convention]. Although the Vienna
Convention does not mention declarations, it is generally agreed that such declarations are also valid if
accepted by state parties but not if they are incompatible with the treaty's purpose. See Michael J.
Glennon, The Constitutional Power of the United States Senate to Condition its Consent to Treaties, 67
CH.-KENT L. REV. 533, 542 (1991). This Note argues that Senate declarations theoretically may be
accepted as part of a treaty by other state parties, but because non-self-execution declarations attached
to self-executing treaties most likely would be incompatible with the treaty's object and purpose, such
declarations are not part of treaties. Additionally, those non-self-execution declarations attached to
treaties that are not self-executing as a matter of international law are superfluous.
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The New Isolationism: Non-Self-Execuition Declarations and Treaties as the Supreme Law of the Land
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