United Nations General Assembly resolutions fall into the category of “hard” international law and are binding instruments.   The concept that a government must protect against torture or inhuman and degrading treatment is widely accepted by governments and is considered to be customary international law.  Thus a “soft law” can over time become so accepted and customary as to be universally accepted by governments.  The “Universal Declaration of Human Rights” (UDHR) is the best example of a soft law (it was adopted in 1948 as a non-binding UN General Assembly Resolution) that is widely considered to have become binding, customary international law.

An example of “hard law” is the conventions which can also be referred to as treaties, pacts or charters.   The United Nations Charter is perhaps the most important treaty as it establishes the framework for the United Nations and commits member States (nations) to promote universal respect for human rights.   Treaties are binding on the governments (States Parties) that ratify them.

The U.S. has signed but not ratified the Vienna Convention on the Law of Treaties, but it regards this

convention as “the authoritative guide to current treaty law and practice.” See Secretary of State Rogers’ Report

to the President, Oct. 18, 1971, 65 DEP’T ST. BULL. 684, 685 (1971).

Treaty

A legally binding contract between nations (also called a covenant or convention).

State(s)

A country or its government

 Soft law

International declarations and other documents that are not legally binding on any State. Although not legally binding, soft law provides useful guidance that can be taken into account by courts and UN treaty bodies.

What is a treaty?

Treaties are formal contracts between nations.  Multilateral treaties are typically negotiated at global conferences and framed in terms applicable generally to all nations that may ratify or accede to them. 

 In the language of Chief Justice Marshall in 1829:

“A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially, so far as its operation is intraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument.”

Treaties depended on interest and honor of the nation States on the international plane.  Treaties are contracts between nations and generally depend for their efficacy on the interest and honor of the parties, rather than on domestic adjudication. Thus U.S. treaty makers need to be able to assert to other nations that they can validly control the domestic enforceability of the treaties.  Making a treaty enforceable in our domestic courts is a way to avoid the international friction that could be expected to result from treaty violations and to capture the benefits of a reputation for treaty compliance.  But treaty makers also wish to have the power to control the domestic consequences of the treaties they conclude – thus the desire to control the actual execution of the treaty within the domestic courts.  U.S. treaty makers may validly control the domestic enforceability of the treaties through declarations regarding self execution.

International law governs relationships between nations.  So under traditional international law, individuals generally lack legal standing to complain of a nation’s treaty violation or to seek any remedy on the international plane.   In addition, treaties were not enforceable in domestic courts solely by virtue of the treaty itself.  Judges are only allowed to enforce treaties if they so authorized by existing domestic law. 

Although in theory, treaties should be treated by courts just like statutory and constitutional provisions, this does not mean that treaty enforcement will always be simple. There can be significant difficulties in attempts to enforce the US Constitution and federal statutes in court.  In any particular case, it may be uncertain whether the person invoking the provision has standing to do so.  It also needs to be determined whether the remedy sought is appropriate.  It may be necessary to determine whether the provision is sufficiently determinate to be amenable to judicial enforcement. 

It is important to look at the language of the treaty to determine whether the treaty’s obligations are addressed to the legislative or judicial branch.

Nations usually leave such questions to be governed by the domestic law of the parties.  Nations differ widely regarding domestic constitutional rules on treaty enforcement.

If a treaty is violated, it becomes the subject of international negotiations and reclamation, and often not the subject of a lawsuit. The dispute is usually handled through diplomatic methods between the nation states.  The final outcome of an unresolved treaty dispute can be a war.  Thus there are many difficult questions involving statutory or constitutional provisions especially as they apply to individual cases.

The Supremacy Clause of the US Constitution

Article VI  of the US Constitution states that:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;"

The US Constitution’s Supremacy Clause declaration is that treaties are part of the law of the land and instructs judges to give them effect. The Supremacy Clause gives treaties a domestic judicial sanction that they would otherwise lack. It makes treaties enforceable in the courts in the same circumstances as federal statutes and the Constitution itself. The Supremacy Clause makes treaties enforceable in court at the behest of individuals.  The text of the Constitution, as properly interpreted by the Supreme Court, establishes a general rule that treaties are judicially enforceable to the same extent as provisions of the Constitution and federal statutes of like content.  

The Supremacy Clause was a direct result of one of the major weaknesses of the Articles of Confederation. Although the Articles entrusted the treaty-making power to Congress, fulfillment of Congress’ promises was dependent on the state legislatures.[i] [ii]

 Because of the division of power between the US national government and the individual states (for example: FL, MO, OH, SD, TX, VT, WA, KS etc) it was necessary for the Founders of the US Constitution to assert that treaties were the supreme law of the land, so as to make the individual states (states with a small s means individual states within the U.S.A.) accountable to the terms of international treaties and thus be able to enforce terms of the treaty in domestic courts.[iii] [iv] [v] [vi] Under the Supremacy Clause, our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.   It can be argued that the Supremacy Clause establishes a default rule that treaties are directly enforceable in the courts like other laws, rebuttable only by a clear statement that the obligations imposed by the treaty are subject to legislative implementation.

Governments are under an obligation, under international human rights law, to ensure that government policies and practices conform to binding international human rights law. For example:  the Vienna Declaration reaffirms, people with mental disabilities are protected by the same human rights law that protects all other individuals – including the provisions of binding human rights conventions. International human rights law creates a number of broad protections that provide important rights to people with mental disabilities.

So national governments including the United States of America have an obligation to “ensure and respect” human rights law, including the creation of safeguards for rights enforcement.

The major UN conventions, including the ICCPR and the ICESCR, create treaty-based supervisory bodies. Governments that ratify conventions agree to report regularly on the steps that they have taken to implement the convention – through changes in legislation, policy, or practice. Non-governmental organizations can also submit information for review by oversight bodies. Oversight bodies review both the official and non-governmental reports and publish their findings, which may include a determination that governments have not met their international obligations under the convention. The international oversight and reporting process thus provides an opportunity to educate the public about a specialized area of rights. This process can also be a powerful way to pressure governments to realize convention-based rights.

The international Human Rights Treaties we have today were in part a response to the horrors that happened during the Holocaust. The actions of the Nazi’s made many reconsider what the international community should have done to prevent the genocide and related human rights violations. The Nuremberg Code of Medical ethics was created as a result of the revulsion of the terrible human rights crimes that were perpetuated by the Nazi German regime camps during the 1940’s, during World War II and the Holocaust.  It was revealed that prisoners were coerced into participating and there was never any informed consent.  These victims of medical experimentation were not willing participants.  These offensive medical experiments resulted in death, disfigurement or permanent disability, and as such can be considered as examples of medical torture. At Auschwitz and other camps, these gruesome medical experiments were performed under the direction of Dr. Eduard Wirths, Dr. Aribert Heim, and Dr.  Josef Mengele. Carl Vaernet is known to have conducted experiments on homosexual prisoners in attempts to cure homosexuality.  The Nazi doctors involved in these crimes were tried after the war, at what became known as the Doctor’s Trial.  The American Nuremberg Military Tribunal, which began on October 25, 1946, put on trial twenty-three physicians, scientists, and other senior officials in the Nazi medical administration and the army, were put on trial. Seven of the accused were sentenced to death and executed; nine were sentenced to long prison sentences; and seven were acquitted. Several major perpetrators were never tried for their crimes - Josef Mengele and Horst Schumann.

At the Nuremberg Trials, there were war criminals who were doctors who stood accused of committing  murders, brutalities, cruelties, tortures, atrocities, and other inhuman acts. These doctors acting in concert with others unlawfully, willfully, and knowingly participated as leaders, organizers, investigators, and accomplices in the plans, and enterprises to commit, and which involved the commission of, war crimes and crimes against humanity.

At least seventy medical research projects involving cruel and often lethal experimentation on human subjects were conducted in Nazi concentration camps.  More than seven thousand victims of such medical experiments have been documented. Victims include Jews, Poles, Roma (Gypsies), political prisoners, Soviet prisoners of war, homosexuals, and Catholic priests.

Such experiments included, but were not limited to, the following:

(A) High-Altitude Experiments to investigate the limits of human endurance and existence at extremely high altitudes. The experiments were carried out in a low-pressure chamber in which atmospheric conditions and pressures prevailing at high altitude (up to 68,000 feet) could be duplicated. The experimental subjects were placed in the low-pressure chamber and thereafter the simulated altitude therein was raised. Many victims died as a result of these experiments and others suffered grave injury, torture, and ill-treatment.

(B) Freezing Experiments to investigate the most effective means of treating persons who had been severely chilled or frozen. In one series of experiments the subjects were forced to remain in a tank of ice water for periods up to 3 hours. Extreme rigor developed in a short time. Numerous victims died in the course of these experiments. After the survivors were severely chilled, rewarming was attempted by various means. In another series of experiments, the subjects were kept naked outdoors for many hours at temperatures below freezing. The victims screamed with pain as their bodies froze.

 (C) Malaria Experiments to investigate immunization for and treatment of malaria. Healthy concentration-camp inmates were infected by mosquitoes or by injections of extracts of the mucous glands of mosquitoes. After having contracted malaria the subjects were treated with various drugs to test their relative efficacy. Over 1,000 involuntary subjects were used in these experiments. Many of the victims died and others suffered severe pain and permanent disability.

(D) Lost (Mustard) Gas Experiments to investigate the most effective treatment of wounds caused by Lost gas. Lost is a poison gas which is commonly known as mustard gas. Wounds deliberately inflicted on the subjects were infected with Lost. Some of the subjects died as a result of these experiments and others suffered intense pain and injury.

(E) Sulfanilamide Experiments - Wounds deliberately inflicted on the experimental subjects were infected with bacteria such as streptococcus, gas gangrene, and tetanus. Circulation of blood was interrupted by tying off blood vessels at both ends of the wound to create a condition similar to that of a battlefield wound.  Infection was aggravated by forcing wood shavings and ground glass into the wounds. The infection was treated with sulfanilamide and other drugs to determine their effectiveness. Some subjects died as a result of these experiments and others suffered serious injury and intense agony.

(F)Bone, Muscle, and Nerve Regeneration and Bone Transplantation Experiments to study bone, muscle, and nerve regeneration, and bone transplantation from one person to another. Sections of bones, muscles, and nerves were removed from the subjects. As a result of these operations, many victims suffered intense agony, mutilation, and permanent disability.

(G) Sea-water Experiments to study various methods of making sea water drinkable. The subjects were deprived of all food and given only chemically processed sea water. Such experiments caused great pain and suffering and resulted in serious bodily injury to the victims.

(H) Epidemic Jaundice Experiments to investigate the causes of, and inoculations against, epidemic jaundice. Experimental subjects were deliberately infected with epidemic jaundice, some of whom died as a result, and others were caused great pain and suffering.

(I) Sterilization Experiments - The purpose of these experiments was to develop a method of sterilization which would be suitable for sterilizing millions of people with a minimum of time and effort. These experiments were conducted by means of X-ray, surgery, and various drugs. Thousands of victims were sterilized and thereby suffered great mental and physical anguish.

(J) Spotted Fever (Fleckfieber) Experiments to investigate the effectiveness of spotted fever and other vaccines. At Buchenwald numerous healthy inmates were deliberately infected with spotted fever virus in order to keep the virus alive; over 90 percent of the victims died as a result. Other healthy inmates were used to determine the effectiveness of different spotted fever vaccines and of various chemical substances. In the course of these experiments 75 percent of the selected number of inmates were vaccinated with one of the vaccines or nourished with one of the chemical substances and, after a period of 3 to 4 weeks, were infected with spotted fever germs. The remaining 25 percent were infected without any previous protection in order to compare the effectiveness of the vaccines and the chemical substances. As a result, hundreds of the persons experimented upon died. Experiments with yellow fever, smallpox, typhus, paratyphus A and B, cholera, and diphtheria were also conducted.

(K) Experiments with Poison to investigate the effect of various poisons upon human beings. The poisons were secretly administered to experimental subjects in their food. The victims died as a result of the poison or were killed immediately in order to permit autopsies. In or about September 1944 experimental subjects were shot with poison bullets and suffered torture and death.

(L) Incendiary Bomb Experiments to test the effect of various pharmaceutical preparations on phosphorous burns. These burns were inflicted on experimental subjects with phosphorous matter taken from incendiary bombs, and caused severe pain, suffering, and serious bodily injury.

The Standards

The human rights treaty system encompasses nine major treaties:

• the Convention on the Elimination of all forms of Racial Discrimination (in force 4 January 1969)
• the International Covenant on Civil and Political Rights (CCPR) (in force 23 March 1976)
• the International Covenant on Economic, Social and Cultural Rights (in force 23 March 1976)
• the Convention on the Elimination of all forms of Discrimination Against Women (in force 3 September 1981)
• the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (in force 26 June 1987)
• the Convention on the Rights of the Child (in force 2 September 1990)
• the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (in force 1 July 2003)
• Convention on the Rights of Persons with Disabilities (in force 3 May 2008)
• the International Convention for the Protection of all Persons from Enforced Disappearance (in force 23 December 2010).

The Treaty Bodies

The nine treaties are associated with nine treaty bodies which have the task of monitoring the implementation of treaty obligations. The treaty bodies meet primarily in Geneva, and are serviced by the Office of the UN High Commissioner for Human Rights (OHCHR). These are:

• the Committee on the Elimination of Racial Discrimination (CERD)
• the Human Rights Committee (HRC)
• the Committee on Economic, Social and Cultural Rights (CESCR)
• the Committee on the Elimination of Discrimination Against Women (CEDAW)
• the Committee Against Torture (CAT)
• the Committee on the Rights of the Child (CRC)
• the Committee on Migrant Workers (CMW)
• the Committee on the Rights of Persons with Disabilities (CRPD)
• the Committee on Enforced Disappearance (CED).

The "supremacy clause" is the most important guarantor of national union. It assures that the Constitution and federal laws and treaties take precedence over state law and binds all judges to adhere to that principle in their courts.

The High Commissioner recognizes that the United States Constitution makes treaties of the United States, along with the Constitution and federal statutes, part of the “supreme law of the land.” U.S. CONST. art. VI, cl. 2. The High Commissioner also recognizes that, consistent with the rule of international law that a State may not invoke its own law to excuse a failure to comply

with a treaty or other international obligation,( See Vienna Convention on the Law of Treaties art. 27, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter Vienna Convention]; Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, Annex, arts. 3-4, U.N. Doc. A/Res/56/83 (Dec. 12, 2001)  the United States Supreme Court has held, from its very beginnings, that the United States’s domestic law should be interpreted, if at all possible, to comply with the United States’s international obligations. See, e.g., Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains . . . .); RESTATEMENT § 114. The United States Constitution and this Court have thereby expressed their profound respect for the rule of pacta sunt servanda—a State must comply with its agreements—“perhaps the most important principle of international law.” RESTATEMENT § 321 cmt. a.

A State’s compliance with its obligations under the Covenant and other human rights treaties reflects its basic commitment to the rule of law. The High Commissioner’s experience accordingly has been that a State’s domestic courts, and in particular its courts of last resort, have a definitive role in vindicating human rights guarantees conferred under applicable international human rights treaties.

Basic principles of treaty interpretation, as well as consistent authoritative interpretation of the Covenant by the International Court of Justice, the United Nations Human Rights Committee,

and respected commentators, confirm that the treaty’s provisions apply extraterritorially to all persons within the power or effective control of a State Party. Moreover, because the rights protected by the Covenant are universal, they do not stand aside in times of armed conflict, and the provisions of the Covenant continue to apply. To the extent that provisions of international humanitarian law also apply, international human rights law informs their interpretation,  complements them, and frequently provides clarity and detail as to their requirements.

MR. JUSTICE MILLER delivered the opinion of the  U.S. Supreme Court  on the Head Money Cases 112 U.S. 580 on Dec. 8, 1884  that “The Constitution of the United States places such provisions as these in the same category as other laws of Congress by its declaration that

this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.

A treaty, then, is a law of the land, as an act of Congress is whenever its provisions prescribe a rule by which the rights of the private [p599] citizen or subject may be determined.”

Although the United States has not ratified the Vienna Convention, United States courts have recognized that its provisions codify customary international law. See, e.g., Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 433 (2d Cir. 2001); see also S. Exec. Doc. L, 92d Cong., 1st Sess. 1 (1971) (letter of submittal from Secretary of State to President) (“Although not yet in force, the Convention is already generally recognized as the authoritative guide to current treaty law and practice.”).

Under Article 31 of the Vienna Convention, the Covenant must “be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” See Reports of the International Law Commission to the General Assembly, [1966] 2 Y.B. Int’l L. Comm’n 217, 219-20, U.N. Doc. A/CN.4/SER.A/1966/Add.1 [hereinafter ILC Commentary] (official commentary of International Law Commission on Vienna  Convention) (“the application of the means of interpretation in [Article 31] would be a single combined operation”  involving all elements there specified). Applying that rule, a State Party’s obligations under the Covenant apply wherever it exercises authority capable of affecting enjoyment of Covenant rights by individuals subject to that authority or, put another way, whenever an  individual is within the State Party’s power or effective control. See U.N. Hum. Rts. C’ttee, General Comment No. 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, ¶ 11, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004) [hereinafter  General Comment No. 31].  Hence, Article 2(1) plainly extends the protections of the Covenant to all persons within a State Party’s territory and also to all persons within its jurisdiction.

No nation state may suspend or violate, even in times of public emergency:

(a)    the right to life;

(b)   freedom from torture or cruel, inhuman or degrading treatment or punishment and from medical or scientific experimentation;

(c)    the right not to be held in slavery or involuntary servitude; and,

(d)   the right not to be subjected to retroactive criminal penalties as defined in the Covenant.

Customary international law prohibits in all circumstances the denial of such fundamental rights.

All nation states who are parties to the human rights treaties must as part of their obligation to ensure the enjoyment of these rights to all persons within their jurisdiction and to adopt measures to secure an effective remedy for violations, shall take special precautions in time of public emergency to ensure that neither official nor semi-official groups engage in a practice of arbitrary and extra-judicial killings or involuntary disappearances, that persons in detention are protected against torture and other forms of cruel, inhuman or degrading treatment or punishment, and that no persons are convicted or punished under laws or decrees with retroactive effect. The ordinary courts shall maintain their jurisdiction, even in a time of public emergency, to adjudicate any complaint that a non-derogable right has been violated.