State Execution of the International Covenant on Civil and Political Rights

David Kaye, UC Irvine School of Law


In 1992, following the request of the administrations of first President Jimmy Carter and then President George H.W. Bush, the Senate provided advice and consent to U.S. ratification of the International Covenant on Civil and Political Rights, perhaps the central binding instrument in international human rights law. As a treaty, the Covenant has special status in the U.S. legal system, binding the United States to its provisions under international law (to the extent of U.S. reservations, understandings, and declarations). However, ratification was based in part on the understanding that the Covenant is non-self-executing and thus requires implementing legislation in order for litigants to rely on its provisions in federal and state court. To date, no such implementing legislation has been adopted in Congress, and none seems likely in the foreseeable future. As a result, no domestic mechanism exists for litigants to test state and federal compliance with the Covenant. This Essay proposes a mechanism to enable litigants in state courts to test state behavior by the standards of the Covenant: incorporation of the Covenant's main provisions as a matter of state law. In making this proposal, I review the Covenant and discuss how conservative support for ratification in the Senate depended on a federalism understanding that left implementation to the discretion of the states. The Essay argues that states may exercise that discretion by providing individuals with the right to bring claims against state actors arising under the Covenant.