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Formal Challenge to "not self-executing" Declaration appended to Senate ratification of International Covenant on Civil and Political Rights (ICCPR) | A communication addressed to Greetings Judge Thomas Buergenthal,.

See also:



"(1) That the United States declares that the provisions of
articles 1 through 27 of the Covenant are not self-executing.


Greetings Judge Thomas Buergenthal:

I just now returned from the Law Library on the campus of the
University of Washington in Seattle, Washington State, USA.

I was initially attracted to your published works on the ICCPR,
chiefly because of your Concluding Remarks in 1998,
as published in the Columbia Journal of Transnational Law
concerning Understanding (5) in the United States' Reservations,
Understandings and Declarations ("RUD"):


"(1) That the United States declares that
the provisions of articles 1 through 27
of the Covenant are not self-executing.

I have taken the liberty of scanning your Concluding Remarks
and posting them here on the Internet, by way of exercising
a right to "fair use" of your written works:

... and, as you so eloquently put it, hopefully by way of
"enriching the emerging body of international law on the subject".

I must say, it was quite an adventure to analyze other Law Review
sources which are cited by you and by other authors
who have attempted to focus on the legal force and effect
of the RUD supra (if any).

Allow me to suggest what I consider to be a very powerful
and frequently overlooked set of relevant authorities which,
in my professional opinion, settle the controversy once and for all.

Although the authors I reviewed this morning do make a
point of discussing freedom of speech in the context of the
First Amendment to the Constitution for the United States of
America, I was awe-struck by what appears to be a near total
omission of any mention of the Petition Clause in this same context.

Using your lucid logic to drive this point home, you and
other authors I reviewed today appear to agree that the
"non-self-executing" provision in RUD Declaration (1) was intended
"to prevent individuals from suing in American courts
to enforce"
rights guaranteed by the Covenant.

In this context, whether or not it too has the force and effect of
American law, the Senate's "Proviso" is also very relevant
in this same context, to wit:

"Nothing in this Covenant requires or authorizes legislation,
or other action, by the United States of America prohibited
by the Constitution of the United States as interpreted by
the United States."

Now, I ask you:  What legislation does the First Amendment prohibit?

That "Proviso" was my touchstone, and primary motivation,
to direct your immediate attention to the standing decisions
of State and Federal Supreme Courts in America which have
carefully and thoroughly deliberated the correct meaning of the
Petition Clause in the First Amendment. 

Allow me to cite and quote just a few exemplary decisions of this kind:

As the United States Supreme Court has held, the right to petition for redress of grievances is "among the most precious of the liberties safeguarded by the bill of rights." See United Mineworkers of America, District 12 v. Illinois State Bar Association,389 U.S. 217, 88 S.Ct. 353, 356, 19 L.Ed.2d 426 (1967). Inseparable from the guaranteed rights entrenched in the first amendment, the right to petition for redress of grievances occupies a "preferred place" in our system of representative government, and enjoys a "sanctity and a sanction not permitting dubious intrusions." Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945).

Indeed, "[i]t was not by accident or coincidence that that rights to freedom in speech and press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition for redress of grievances." Id. at 323. Moreover, the Supreme Court has held expressly that the first amendment right to petition protects the individuals right to file an action with a "reasonable basis" in a state tribunal. Bill Johnson's Restaurants, Inc. v. NLRB, ___ U.S. ___, ___, 103 S.Ct. 2161, 2169, 76 L.Ed.2d 277 (1983).6

The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens. Equality of treatment in this respect is not left to depend upon comity between the states, but is granted and protected by the Federal Constitution.

These authorities make it clear that the right of petition protects attempts to obtain redress through the institution of judicial proceedings as well as through importuning executive officials and the [31 Cal. 3d 534] Legislature. fn. 4 It is equally apparent that the right encompasses the act of filing a lawsuit solely to obtain monetary compensation for individualized wrongs, as well as filing suit to draw attention to issues of broader public interest or political significance.  As the Supreme Court declared in Mine Workers v. Illinois Bar Assn., supra, 389 U.S. 217, 223 [19 L.Ed.2d 426, 431], "[T]he First Amendment does not protect speech and assembly only to the extent it can be characterized as political." (See also Thomas v. Collins, supra, 323 U.S. 516, 531 [89 L.Ed. 430, 440].) [1c]  Hence, the act of filing suit against a governmental entity represents an exercise of the right of petition and thus invokes constitutional protection. ...

The right of petition is of parallel importance to the right of free speech and the other overlapping, cognate rights contained in the First Amendment and in equivalent provisions of the California Constitution. Although it has seldom been independently analyzed, it does contain an inherent meaning and scope distinct from the right of free speech. It is essential to protect the ability of those who perceive themselves to be aggrieved by the activities of governmental authorities to seek redress through all the channels of government. A tort action against a municipality is but one of the available means of seeking redress.

I am sure that, with all of the extensive talent and legal resources at your
ready disposal, you will have no difficulties confirming the standing
and the wisdom necessarily intended by such language as a
"sanctity and a sanction not permitting dubious intrusions"
of any kind.

It is not difficult to substantiate empirical proof, from the few Law Review
articles I read today, that the "non-self-executing" intent of RUD Declaration (1)
is undeniably "dubious" at best!

Accordingly, on the basis of that well developed constitutional jurisprudence
in America, I now feel it is quite easy to conclude, if for no other reason, that
the "non-self-executing" provision in Declaration (1) of the U.S. RUD
directly contradicts the Petition Clause in the First Amendment and,
as such, it also directly contradicts the Senate's "Proviso" for the
very same reason: 

Insofar as RUD Declaration (1) attempts to prevent individuals in the USA
from suing in American courts to enforce rights guaranteed by the ICCPR
it is therein a flagrantly dubious intrusion upon the Petition Clause --
as that Clause was previously adjudicated by the U.S. Supreme Court and
by State Supreme Courts which have concurred with our high Court
on this key point.

"The Congress shall make no such Law!"
"The Executive shall enforce no such Law!!"
"The Judiciary shall uphold no such Law!!!"

Quod erat demonstrandum!

Thank you very much for your continuing consideration.



Formal challenge to "not self-executing" Declaration appended to U.S. ratification of International Covenant on Civil and Political Rights (ICCPR)

International Covenant on Civil and Political Rights


January 31, 2015 in Current Affairs | Permalink