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The Temporal Problem in Declarations of Non-Self-Execution: A New Ap-proach to Judicial Enforcement of the International Covenant on Civil and

Political Rights in Juvenile Justice Cases ASIL International Law in Domestic Courts Interest Group Annual Workshop

University of Virginia School of Law (December 13, 2010) Stephen J. Schnably

University of Miami School of Law

Abstract

Part I of this Article sets out the standard approach to U.S. ratification of human rights treaties. The tendency has been to analyze the components of this approach separately. While their impact as a whole has been much remarked on, what has been lacking is an effort to understand them as a unified practice, one that informs the interpretation of the particular components. Applying to the package of conditions the kinds of interpretive techniques employed in interpreting a statute will, I argue, give greater insight into the proper interpretation of the conditions the Senate imposed on ratification of the ICCPR.

Part II argues that the best reading of the ICCPR prohibits the trial of juveniles as adults in the absence of prior, individualized judicial determination that such trial is appropriate. This conclusion is signifi-cant in light of the wave of state statutes since 1992 greatly expanding the possibilities for trying juve-niles as adults without any such determination. This interpretation of the ICCPR is vastly strengthened by specific language in the reservations and declarations the Senate adopted regarding the ICCPR’s criminal justice provisions.

Part III sets out the argument that the declaration of non-self-execution does not apply to statutes enacted after the ICCPR was ratified. Because there was a great expansion of state statutes providing for automatic trial of juveniles as adults in certain cases (or vesting discretion entirely in the prosecutor) were enacted after 1992, this conclusion has significant implications for judicial challenges to current juvenile justice policy.

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Introduction........................................................................................................................1Part I. The Standard Approach to U.S. Ratification of Human Rights

Treaties..............................................................................................................4Part II. The ICCPR and U.S. Law Concerning the Trial of Juveniles as

Adults ..............................................................................................................14 A. The Juvenile Justice System B. The ICCPR and the Trial of Juveniles as Adults 1. The Definition of a Minor 2. The ICCPR and the Trial of Juvenile Defendants as

Adults 3. The Senate’s Package of Conditions to the ICCPRPart III. Invoking the Protections of the ICCPR in Court........................................29 A. The Importance of Judicial Enforceability B. The Relationship Between the Content of the Reservations and

Understandings and the Declaration of Non-Self-Execution 1. The Temporal Problem 2. FederalismConclusion ........................................................................................................................51

Introduction

Fifteen years ago, Louis Henkin sagely remarked that the ghost of Senator Bricker haunts the U.S. approach to human rights treaties.1 The different versions of Bricker’s proposed amendment to the constitution had in common a provision making all treaties non-self-executing.2 More broadly, the proposed amendment reflected a deep mistrust of the domestic application of international law. As Professor Henkin observed, this mis-trust survived the demise of the segregationist system the Bricker amendment sought to defend from international scrutiny.3

The mistrust lives on in the Senate’s reluctance to ratify human rights treaties in the first place. In the latest instance, the 2010 mid-term elections have doomed, for now, any prospect that the Senate will approve the two treaties on disabilities and women’s rights for which the Obama Administration had promised to seek ratification.4 More im-portant, the ghost of Senator Bricker lives on in the approach the Senate consistently takes when it does ratify human rights treaties – an approach that ensures that they have no real domestic effect. There seems little reason to expect this approach to change any time the Senate takes up human rights treaties in the future.

Professor Henkin sought to exorcise the ghost.5 I aim to hear it out. The question I pose in this article is not whether the Senate’s standard package of reservations, under-

1 See Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 AM. J. INT’L L. 341 (1995). See also NATALIE HEVENER KAUFMAN, HUMAN RIGHTS TREATIES AND THE SENATE: A HISTORY OF OPPOSITION (1990); Natalie Hevener Kaufman & David Whiteman, Opposition to Human Rights Treaties in the United States Senate: The Legacy of the Bricker Amendment, 10 HUM. RTS. Q. 309 (1988). 2 KAUFMAN, supra note 1, at 103-06, 201-03; Kaufman & Whiteman, supra note 1, at 316-317. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 111(3) (1987) (“Courts in the United States are bound to give effect to international law and to international agreements of the United States, except that a ‘non-self-executing’ agreement will not be given effect as law in the absence of necessary implementation.”) [hereinafter “RESTATEMENT”]. 3 Henkin, supra note 1, at 348. To be sure, it is possible to treat the debates over the Bricker amendment as nothing more than a controversy over “the relationship between the United States and the United Nations, the effects within the United States of international agree-ments, and the proper balance between congressional and presidential authority in foreign affairs,” Duane A. Tanabaum, The Bricker Amendment Controversy: Its Origins and Eisen-hower’s Role, 9 DIPLOMATIC HISTORY 73, 93 (1985). But its connection to the defense of the segregationist system was deep. See CAROL ANDERSON, EYES OFF THE PRIZE: THE UNITED NATIONS AND THE AFRICAN AMERICAN STRUGGLE FOR HUMAN RIGHTS, 1944-1955, at 210-70 (2003). 4 The Senate Judiciary Committee held hearings on November 18, 2010, on the Convention on the Elimination of All Forms of Discrimination Against Women. See http://judiciary.senate.gov/hearings/hearing.cfm?id=4861. 5 Henkin, supra note 1, at 349-50. For less critical account of the U.S. practice, see David P. Stewart, United States Ratification of the Covenant on Civil and Political Rights: The Sig-nificance of the Reservations, Understandings, and Declarations, 42 DEPAUL L. REV. 1183 (1993).

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standings, and declarations – for simplicity I will call them conditions – is valid or wise, a question on which I have little to add to Henkin’s insightful analysis. Rather, it is whether the unified nature of the features in that package might itself provide guidance for interpretation of the treaties subject to that package. Using the example of the juve-nile justice provisions of the International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified in 1992, I argue that it does.

Those provisions, interpreted in light of language the Senate used in the condi-tions it attached to the treaty, are inconsistent with state statutes that permit the trial of juvenile defendants as adults without a prior judicial determination of the appropriateness of doing so in the specific case. Listening to the ghost strongly suggests that the Senate’s declaration that the ICCPR is non-self-executing does not apply to state statutes enacted after ratification. This conclusion rests in part on serious problems that arise if if the dec-laration is read as timeless. It also rests on a feature of a federal system – that the separa-tion of powers at the state level is not generally a subject of federal government direction.

Spectral communications are notoriously hard to decipher. It is possible that the true message of the Senate’s standard conditions is something quite different. Perhaps, in consistently attaching declarations of non-self-execution to human rights treaties, the po-litical branches are sending a signal to the courts to be quite cautious in treating any in-ternational human rights law claims (treaty-based or otherwise) as adjudicable. Reading the signals this way might seem compatible with the broader political environment, one that increasingly treats international law as alien to American law.6 If so, the prospects for success in persuading the courts to accept a narrower interpretation of the declaration are uncertain at best. Equally important, any success in the courts might breed a backlash in the Senate. One could imagine the Senate revising the declaration of non-self-execution that it attaches to future treaties to make explicit that it applies to all statutes, whenever enacted.

6 Oklahoma voters recently approved a state constitutional amendment that prohibits the courts from applying international law and foreign law (with specific reference to Sharia law) – a remarkable conflation of very different bodies of law that managed to encapsulate con-servative attacks on Islam, international law, and “activist” courts in one ballot proposition.

Another sign can be seen in the testimony of then-Judge Sotomayor before the Senate Judiciary Committee in July 2009. In the second day of her testimony she remarked that “American law does not permit the use of foreign law or international law to interpret the Constitution. That’s a given. . . . There is no debate on that question; there’s no issue about that question.” Sotomayor stands up to GOP grilling; Republicans plan to keep pressing her for signs that she’d bring a racial or gender bias to the Supreme Court, L.A. Times July 15, 2009. The final day of her testimony included a number of questions and remarks by Com-mittee members to the same effect, with further reaffirmation by Judge Sotomayor of the po-sition she stated two days earlier. See Sen. Patrick J. Leahy Holds a Hearing on the Nomina-tion of Judge Sonia Sotomayor to Be an Associate Justice of the U.S. Supreme Court, CQ Transcriptions, July 16, 2009 (available in Lexis). Here, too, the virtual equation of interna-tional law with foreign law that marked the exchanges between Judge Sotomayor and the Senators questioning her is striking in light of Article VI of the Constitution, which makes treaties “the supreme Law of the Land,” on par with federal law and subordinate only to the Constitution itself.



Why, then, press ahead? The effort in the courts seems worth it, because the U.S. has embarked on a major policy initiative dealing with youth crime that is inconsistent not just with its treaty obligations, but with the specific language the Senate employed in reservations and understandings to clarify those obligations. And read without any tem-poral limitation, the declaration of non-self-execution is inconsistent with other key ele-ments of a unified package of conditions the Senate adopted. So read, the declaration amounts to an intervention in state governmental structure inconsistent with the respect for federalism the Senate expressly recognized in its conditions, and it conflicts with the Senate’s systematic effort to ensure the congruence of domestic law with treaty law. Drawing the courts’ attention to this inconsistency, in an effort to shield defendants from the exercise of state power that is inconsistent with U.S. treaty obligations, seems worth-while.

Moreover, while the possibility of a backlash is real, one should not be too quick to assume there will be one. The political costs, domestically and internationally, of a forthright statement that the courts would be powerless to act no matter how inconsistent any future state statute might be with a treaty would be considerable. They might pre-clude adoption of such a declaration in connection with another treaty. And if they did not they might also increase the pressure on Congress to enact implementing legislation. Or they might signal the need for even more innovative approaches.7 In the end, though, even if success in the courts simply produced a more forthright rejection in the Senate of any real commitment to international human rights law on the domestic plane, the effort would be worth it. A forthright rejection is better than a hidden one.

Part I of this Article sets out the standard approach to U.S. ratification of human rights treaties. The tendency has been to analyze the components of this approach sepa-rately. While their impact as a whole has been much remarked on, what has been lacking is an effort to understand them as a unified practice, one that informs the interpretation of the particular components. Applying to the package of conditions the kinds of interpre-tive techniques employed in interpreting a statute will, I argue, give greater insight into the proper interpretation of the conditions the Senate imposed on ratification of the ICCPR.

Part II argues that the best reading of the ICCPR prohibits the trial of juveniles as adults in the absence of prior, individualized judicial determination that such trial is ap-propriate. This conclusion is significant in light of the wave of state statutes since 1992 greatly expanding the possibilities for trying juveniles as adults without any such deter-mination. This interpretation of the ICCPR is vastly strengthened by specific language in the reservations and declarations the Senate adopted regarding the ICCPR’s criminal jus-tice provisions.

7 Perhaps more optimistically, one might conclude from the failure of the approach described in this article – whether from rejection by the courts or the Senate – that domestic enforce-ment of U.S. obligations under human rights treaties (and others) requires significant depar-tures from current U.S. treaty practice. See, e.g., Edward T. Swaine, Does Federalism Con-strain the Treaty Power?, 103 COLUM. L. REV. 403 (2003) (proposing use of the Compact power in the form of hybrid treaty-compacts).



Part III sets out the argument that the declaration of non-self-execution does not apply to statutes enacted after the ICCPR was ratified. Because there was a great expan-sion of state statutes providing for automatic trial of juveniles as adults in certain cases (or vesting discretion entirely in the prosecutor) were enacted after 1992, this conclusion has significant implications for judicial challenges to current juvenile justice policy.

Part I. The Standard Approach to U.S. Ratification of Human Rights Treaties The fate of international human rights treaties in the political arena has remained

remarkably constant over the years. There is a great reluctance to ratify them in the first place. In many cases ratification of a human rights treaty has taken place years or even decades after the time a treaty was first opened for signature. To be sure, despite this re-luctance, the U.S. has, over the years, become party to an impressive number of human rights treaties. Still, it remains true that any attempts to ratify any additional human rights treaty almost certainly will spark major political battles.

Equally important is the Senate’s standard approach to ratifying those it does ap-prove. 8 First, the U.S. carefully tailors the treaty obligations it takes on so that they con-form to domestic U.S. law.9 For example, when the U.S. ratified the International Cove-nant on Civil and Political Rights (ICCPR),10 it took a reservation to the prohibition in Article 6(5) on the imposition of capital punishment for offences committed by persons under eighteen.11 This reservation reflected the state of constitutional law at the time,12 which did not flatly rule out such sentences. Another revealing example is one of the ob-jections three Republican members of the Senate Foreign Relations Committee made when the Committee’s Democratic majority voted over the Bush Administration’s objec-tion to recommend ratification of the Convention on the Elimination of All Forms of Dis-crimination Against Women (CEDAW) in 2002. They were concerned that no review of the compatibility of U.S. domestic law and CEDAW had been done since 1994 (when the Clinton Administration had sought ratification), opening up the possibility that subse-

8 For convenience, I speak here of the “Senate’s approach.” Of course, it is the President who submits the treaty to the Senate for consideration, typically (in the case of human rights treaties) with an elaborate set of proposed conditions. The Senate may modify, delete, or add to the proposed conditions, and the President is not required to proceed with ratification of the treaty if those changes are unacceptable. See RESTATEMENT, supra note 2, § 314, com-ment b. 9 See Henkin, supra note 1, at 342 (“By its reservations, the United States apparently seeks to assure that its adherence to a convention will not change, or require change, in U.S. laws, policies or practices, even where they fall below international standards.”). 10 International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Exec. Doc. E, 95-2 (1978), 999 U.N.T.S. 171 (ratified by the U.S. on June 8, 1992). 11 Text of United States Reservations, Understandings, and Declarations, United States Sen-ate Foreign Relations Committee Report: International Covenant on Civil and Political Rights, S. Exec. Doc. No. 102-123, ___d Cong., 2d Sess. 6-12 (1992), reprinted in 31 I.L.M. 645 (1992) [hereinafter “US ICCPR Conditions”]. 12



quent developments in U.S. law incompatible with CEDAW would not be addressed by reservations, understandings, or declarations.13

Second, the U.S. declares all the substantive obligations of the treaties to be “non-self-executing,” even though it seems likely that, in the absence of the declaration, the treaty provisions would be self-executing.14 The best interpretation of these declarations of non-self-execution is a matter of some controversy.15 However interpreted, though, as a practical matter they have severely constrained any invocation of the treaties in court other than as advisory. A declaration that a human rights treaty is non-self-executing has the effect of turning the treaty so ratified into, at best, “a jurisdictional convenience to be placed on the shelf for use by a future Congress or state legislature that might, some day, authorize the creation of causes of action,” to use the Supreme Court’s words in rejecting a reading of the Alien Tort Statute that would have had a similarly deflating impact on that law.16

Third, the Senate declares at the time of ratification that because U.S. law is in conformance with the treaty obligations (as modified in the course of ratification), no im-plementing legislation is contemplated. And for the most part, the U.S. has indeed en-acted no implementing legislation for human rights treaties. 17

13 The Committee had previously recommended ratification in 1994, adopting a set of condi-tions recommended by the Clinton Administration. In 2002, the Committee recommended the same conditions with no input from the Bush administration, which had sought delay in considering the treaty. The minority members objected that

neither the draft resolution of ratification . . . nor the explanation of CEDAW’s provi-sions reflects the state of relevant U.S. law [as of 1992] . . . . Eight years of U.S. fed-eral and state jurisprudence were not taken into account in preparation of the draft resolution of ratification. Precipitous action by the Senate . . . will lead to unneces-sary litigation in the United State of unknown proportions because the majority has no knowledge of the present vulnerability of U.S. domestic law to unintentional dis-placement. Even worse, the majority refused to wait for the Administration’s legal review to be completed and presented, thus turning its back on the only mechanism available to predict the severity of CEDAW’s disruptive impact and the protective measures necessary to avoid it.”

Additional Views of Senators Helms, Brownback, and Enzi, Senate Exec. Rep. 107-9, Con-vention on the Elimination of All Forms of Discrimination Against Women, Sept. 6, 2002, http://bulk.resource.org/gpo.gov/reports/107/er009.107.txt. 14 This statement assumes, of course, that the treaties would be self-executing in the absence of Senate declarations to the contrary. As discussed in Part Three below, however, this as-sumption seems entirely reasonable. 15 See generally David Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 YALE J. INT'L L. 129 (1999). 16 Sosa v. Alvarez-Machain, 542 U.S. 692, 719 (2004). 17 Congress has approved legislation providing for prosecution of individuals who commit torture or genocide, thereby implementing some obligations in the Genocide Convention and the Torture Convention. See Genocide Convention Implementation Act of 1987, Pub. L. 100-606, 102 Stat. 3045, codified at 18 U.S.C. §§ 1091-1093. As for torture, see 18 U.S.C. §§ 2340-2340A (criminalizing torture outside the U.S. where the victim or torturer is Ameri-



Fourth, the Senate adopts an interpretative declaration that implementation will be accomplished consistent with federalism. In the case of the ICCPR, for example, the Senate stated that the treaty would be “implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments.”18

Finally, the U.S. declines to submit itself to treaty bodies or international courts with the power to hear petitions brought against by individuals asserting that the U.S. has violated their rights under the treaty. The result is that there is no adjudicative or quasi-adjudicative body, domestic or international, with the power to hear individual com-plaints that the U.S. has violated its treaty obligations.19

The U.S. has taken the standard approach in the case of the ICCPR, the Conven-tion Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 20 the Convention on the Elimination of All Forms of Racial Discrimination,21 and two

can or the torturer is later present in the U.S.); H.R. Conf. Rep. No. 103-482, at 229 (1994) (sections 2340-2340A carry out U.S. obligations under CAT). See also S. Rep. 103-107, at 59 (1993) (stating that torture within the U.S. was already covered by existing statutes pro-hibiting murder and assault). Congress also asserted that the Torture Victim Protection Act, March 12, 1991, Pub. L. 102-256, 106 Stat. 73, codified at 28 U.S.C. § 1350 note, was de-signed to “carry out the intent of the Convention Against Torture,” S. Rep. No. 102-249 (1991). 18 CITE. What may save this declaration from flat inconsistency with Article 50 of the ICCPR (making the treaty applicable “to all parts of federal States without any limitations or exceptions”) is the additional statement in the declaration that “to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Cove-nant.” If one reads this declaration as a mandate to states to enact legislation consistent with the treaty, it might itself violate the anti-commandeering principle. See Carlos Manual Vásquez, Breard, Printz, and the Treaty Power, 70 U. COLO. L. REV. 1317, 1353-57 (1999). But see Swaine, supra note 7, at 425 n.96, 442-43; Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. PA. L. REV. 399, 455-56 (2000). 19 In ratifying the ICCPR, the U.S. did declare its acceptance of the jurisdiction of the Human Rights Committee to hear complaints filed against it by other state parties. There is little realistic prospect of another state using this procedure against the U.S., given the great strain doing so would place on its relations with the U.S. Cf. Scott Leckie, The Inter-State Com-plaint Procedure in International Human Rights Law: Hopeful Prospects or Wishful Think-ing?, 10 HUM. RTS. Q. 249 (1988) (noting that in general the procedure is “seen as a hostile and quite drastic response by a state desiring to address human rights questions in another state”). 20 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Pun-ishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85 [hereinafter CAT] (ratified by the U.S. ratified on October 21, 1994). 21 International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, S. Exec. Doc. C, 95-2 (1978), 660 U.N.T.S. 195, 212 [hereinafter CERD] (ratified by the U.S. on October 21, 1994).



treaties regarding children’s rights.22 As others have noted, the impact of the standard approach in the domestic sphere is substantial.23

First, it means that adoption of a human rights treaty entails no immediate sub-stantive change in the scope of protected rights. The very fact of tailoring the content of the treaty being ratified to current domestic law ensures this lack of change.

Second, the “deeply ambiguous”24 federalism condition casts into doubt – or con-fusion, at best – what level of government has the power to implement provisions of the treaty. The importance of this uncertainty may, ironically, be tempered by the assertion – subsequently observed in practice – that no implementing legislation is contemplated.

Third, the standard approach precludes any enforcement or even quasi-enforcement of treaty rights at the behest of the individuals the treaties are designed to protect. The tailoring of the treaty obligations to domestic law may make the absence of enforcement less of a problem at first, but it does nothing about the problem of later-enacted laws in conflict with the treaty. The non-self-execution declaration closes off any vindication of treaty rights in court, and the practice of refusing to accept the jurisdic-tion of treaty bodies like the Human Rights Committee forecloses the possibility of resort to individual petition mechanisms.

To be sure, there are some grounds for arguing that the effect of the standard ap-proach is not quite as severe as might first appear. First, as discussed in Part Three be-low, some of the Senate’s conditions might be invalid. Some reservations, for example, might be incompatible with the object and purpose of the treaty. There is, however, no sign that U.S. courts are likely to treat any of the conditions as invalid.

Second, however standard the conditions may be, they are not written in stone. The president (perhaps with the Senate’s consent25) could withdraw the existing declara-tions, and the Senate could cease making them at the time any future treaties were rati-fied. A related approach would be the enactment of comprehensive federal implementing legislation for any human rights treaty the U.S. ratifies.26 Developments along these lines, however, seem politically unlikely.

Third, treaties are not the only form of international law. Customary international law forms an important part of international human rights law. As the Restatement (Third) of the Foreign Relations Law of the United States notes, “customary international

22 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, May 25, 2000, 2173 U.N.T.S. 222 (ratified by the United States on December 23, 2002); Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, G.A. Res. 54/263, Annex II, at 6, 54 U.N. GAOR, Supp. No. 49, U.N. Doc. A/54/49 (2000) (ratified by the United States on December 23, 2002). 23 24 Henkin, supra note 1, at 346. 25 Cf. RESTATEMENT, supra note 2, § 314, Rep. Note 4 (“If the Senate consented to a treaty subject to a reservation by the United States, the President must request Senate consent to withdraw that reservation.”). 26



law, while not mentioned explicitly in the Supremacy Clause, . . . [is] also federal law and as such . . . [is] supreme over State law.”27 Moreover, courts may look to interna-tional law – particularly U.S. treaty obligations – for guidance in interpreting domestic law.28

The very power of courts to enforce customary international law on their own has, however, come under attack in recent years, as part of a broader skepticism about the status of international law as law. These views are not universally accepted, but they do seem to reflect a larger and more general point: It is may not be reasonable to expect courts to apply any aspect of international human rights law vigorously in a context where the political organs embrace it in such a tepid way in the first place. The narrow definition of customary international law that the U.S. Supreme Court adopted in Sosa v. Alvarez-Machain29 is hardly surprising in this context. The Court itself took note of the fact that “the Senate has expressly declined to give the federal courts the task of interpret-ing and applying international human rights law, as when its ratification of the Interna-tional Covenant on Civil and Political Rights declared that the substantive provisions of the document were not self-executing.”30 In this kind of context, there seems little reason to expect courts to give great weight to assertions of customary international law or jus cogens norms in interpreting statutes.

Finally, even if they are not effectively enforceable domestically, human rights treaties represent an official political commitment of the ratifying state to the rights pro-tected in the treaty. The very act of making this commitment may have some impact on domestic advocates and policymakers.31 For example, human rights treaties typically require states to submit periodic reports to oversight bodies. The submission of these re-ports can provide the occasion for domestic groups to submit their criticisms to an inter-national body with an official role in commenting on the consistency of U.S. policy with

27 RESTATEMENT, supra note 2, § 111, comment d. See also id. § 111, Rep. Note 3, at 50 (“the modern view is that customary international law in the United States is federal law”). For a critique of this view, see Curtis A. Bradley & Jack L. Goldsmith, Customary Interna-tional Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997). 28 RESTATEMENT, supra note 2, § 114 (“[w]here fairly possible, a United States statute is to be construed so as not to conflict with international law”) (citing Murray v. Schooner Charm-ing Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)). See also, e.g., Tara J. Melish, From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies, YALE J. INT’L L. 389, 403 & n.69 (2009). 29 542 U.S. 692 (2004). 30 542 U.S. at ____. This is not to argue that the fact that the Senate has consistently declared human rights treaties non-self-executing utterly precludes courts from applying customary international law. See, e.g., Abdullahi v. Pfizer, 562 F.3d 163, __ (2d Cir. 2009) (“Agree-ments that are not self-executing or that have not been executed by federal legislation, includ-ing the ICCPR, are appropriate considered evidence of the current state of customary interna-tional law.”). But the attitude of the district court in that case – which referred to the declara-tion of non-self-execution in rejecting any use of the ICCPR as evidence of an international law norm capable of being enforced in federal court, CITE – is more typical. 31 See Melish, supra note 28, at 404-16, 421-31.



the treaty. Any criticisms by the treaty body may give traction to advocacy groups’ ar-guments in the domestic arena. While political advocacy of this sort is important, though, the question I am addressing here is judicial enforcement.

The Supreme Court’s treatment of international law in recent years demonstrates the significant impact of the standard approach. Twice since 2005 the Court has ex-tended new constitutional protections to juvenile defendants. In Roper v. Simmons,32 the Court held the application of the death penalty for juvenile offenders unconstitutional. In Graham v. Florida,33 the Supreme Court ruled unconstitutional the sentence of life in prison without possibility of parole in the case of juvenile offenders convicted of non-homicide offenses. What is striking about both cases is that the Court declined to apply clear international law prohibitions of such punishments.

The ICCPR expressly prohibits the execution of persons for offences committed under the age of eighteen. Article 37 of the Children’s Rights Convention expressly pro-hibits imposing the sentence of life without possibility of parole on juvenile offenders. Applying either of these treaty provisions was out of the question, of course, because the U.S. has signed on to neither of them. The U.S. took a reservation to the ICCPR to per-mit imposing the death penalty on juvenile offenders, and has signed but not ratified the CRC.34

Nor was there any question in either case of applying customary international law protections of juvenile offenders. To be sure, the Court did look to international and for-eign sources in reaching its decision. But it treated those sources not as law, but simply as indications of the practices of other states or the views of the international community. And it turned to them only to confirm the conclusions reached under its constitutional analysis, not to reach them in the first place.

Even this kind of tepid discussion of non-U.S. sources typically evokes a strong reaction, as it did in Roper and Graham, as well as in other cases. When Justice Stevens argued in the Court’s recent Second Amendment case that other democracies’ sharp lim-its on the possession and use of firearms weaken the claim that the right to possess fire-arms is fundamental to liberty,35 Justice Scalia accused him of imposing a “follow-the-foreign-crowd requirement.”36

The U.S. also moved further away from any general prospect of treaty enforce-ment in domestic courts with the Supreme Court’s Medellín decision in 2008. 37 In that case the Court articulated a new approach to determining whether or not treaties are en-

32 543 U.S. 551 (2005). 33 130 S. Ct. 2011 (2010). 34 Other human rights treaties to which the U.S. is a party are relevant to the issue of life without parole: the ICCPR itself, the Convention on the Elimination of All Forms of Racial Discrimination, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. But the Senate declared all of them non-self-executing in the course of approving them. 35 McDonald v. City of Chicago (Stevens, J., dissenting). 36 Id. (Scalia, J., concurring). 37 Medellín v. Texas, 552 U.S. 491 (2008).



forceable in courts in the absence of implementing legislation. The Medellín Court’s ap-proach was to look for a clear indication in the text of the treaty of an intent by the parties to the treaty that it be self-executing.

If applied widely, the Supreme Court’s approach in Medellín could result in very few treaties being held to be non-self-executing. For the most part it makes no sense to look for any such intent in the text of the treaty in the first place.38 Particularly in the case of multilateral treaties, differences among the parties in the way treaty obligations become enforceable as domestic law mean that it would often be impractical to address the question of self-execution in the treaty.39 Thus, in practice Medellín could result in few if any treaties being enforceable in state and federal courts in the absence of Con-gressional legislation to implement them.40

Equally important is the Medellín court’s emphasis on the language in Article 94 of the U.N. Charter, in which the parties “undertake to comply” with judgments of the ICJ. The Court read this language as indicating an intent that Article 94 not be self-executing. In fact, many human rights treaties, including the ICCPR, routinely start out with such language.41

There is, then, a remarkable parallel between the Senate’s actions and the Su-preme Court’s in the case of human rights treaties. The Senate has routinely placed them outside the purview of the courts’ enforcement powers; and the Supreme Court’s has adopted an approach to determining whether treaties ratified without such a declaration are self-executing that greatly lessens the likelihood that the courts will be found to have the power to enforce them. 38See ABA/ASIL Joint Task Force on Treaties in U.S. Law, Report, at 6-7 (March 16, 2009) (noting that this approach could result, in effect, in a presumption against self-execution) [hereinafter “ABA/ASIL Treaty Report”], available at http://www.abanet.org/leadership/2010/midyear/daily_jourmal/108C.pdf. 39 See ABA/ASIL Treaty Report, supra note 38, at 18 (“in international negotiations, the fo-cus is on the substance of the treaty obligation being negotiated and not on what mechanism each state party will use to implement that obligation in its domestic system”). On variations in how different countries implement treaties domestically, see, e.g., IAN BROWNLIE, PRINCI-PLES OF PUBLIC INTERNATIONAL LAW 47-48 (7th ed. 2008); John H. Jackson, Status of Trea-ties in Domestic Legal Systems: A Policy Analysis, 86 AMER. J. INT’L L. 310, 328 (1992); Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmak-ing in the United States, 117 YALE L.J. 1236, 1362-1372 (2008). For example, in the U.K., Australia, and Canada, for example, implementing legislation is required for treaty rights to be enforceable in court. Jackson, supra, 86 AMER. J. INT’L L. at 319-320. Chinese law is less clear, but it appears that it takes the same approach as the U.K. See Björn Ahl, Exploring Ways of Implementing International Human Rights Treaties in China, 28 NETH. Q. HUM. RTS 361, 365-67 (2010). In The Netherlands, France, and Japan, treaties typically apply of their own force, without the need for implementing legislation. Jackson, supra, 86 AMER. J. INT’L L. at 320. 40 41 ICCPR, art. 2(1) (“Each State Party to the present Covenant undertakes to respect and en-sure” the rights protected by the Covenant). See ABA/ASIL Treaty Report, supra note 38, at 5-6.



The prospects for any significant judicial enforcement of human rights norms seems limited indeed. One might conclude this apparent congruence of the Court and the Senate that any effort to achieve judicial enforcement of a human rights treaty is fruitless. In my view, however, such a conclusion would be premature, particularly because there is one aspect of the standard approach that has remained insufficiently explored, and which may suggest a basis for limited judicial enforcement.

The conditions that make up the standard approach are more than an agglomera-tion of specific provisos that, taken together, have a substantial impact on the status of the treaty and its relation to domestic law. Precisely because they recur together with such regularity, it is useful to ask whether, in interpreting any one part of the package, refer-ence to the other parts of it, and the overall structure of the package, is useful. The aim of this Article is to show that it is.

In a sense, this approach treats the standard package of conditions (somewhat) like a statute. Of course, “treating the standard package of conditions like a statute” could mean any number of things, given the many competing approaches to statutory construction.42 In particular, I mean only to refer to two relatively uncontroversial prin-ciples.

The first is that just as it makes sense to consider any one part of a statute in light of its other provisions and overall structure, so it is illuminating to consider, in interpret-ing any particular condition, what implications the package as a whole, as well as other conditions, may have for interpreting that condition. As Justice Scalia has put it:

Statutory construction . . . is a holistic endeavor. A provision that may seem am-biguous in isolation is often clarified by the remainder of the statutory scheme – because the same terminology is used elsewhere in a context that makes its mean-ing clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.43

The second is that some resort to presumptions in construing statutes can be help-ful. Of most relevance are presumptions that accord with the substance of important as-pects of the statute. In the case of the Senate’s standard approach to ratifying human rights treaties, for example, the inclusion of the federalism declaration makes appropriate the application of interpretive presumptions that protect state authority against federal intrusion. 42 For useful overviews, see FRANK B. CROSS, THE THEORY AND PRACTICE OF STATUTORY INTERPRETATION (2009); WILLIAM D. POPKIN, STATUTES IN COURT: THE HISTORY AND THE-ORY OF STATUTORY INTERPRETATION (1999). 43 United Savings Association v. Timbers of Inwood Forest, 484 U.S. 365, 370 (1988) (cita-tions omitted). See also United States National Bank of Oregon v. Independent Insurance Agents of America, Inc., 508 U.S. 439, 455 (1993) (Souter, J.) (in interpreting a statute, court “must not be guided by a single sentence, but look to the provisions of the whole law, and to its object and policy”) (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122 (1849)); id. (“at a minimum, we must account for a statute’s full text, language as well as punctuation, structure, and subject matter”). This approach bears some similarity to the ap-proach the Court took to treaty interpretation in Abbott v. Abbott, 130 S. Ct. 1983, 1995 (2010) (looking to treaty’s “objects and purposes”).



It is typically assumed that an inquiry into the structure or purpose of a statute as a whole makes sense.44 Can we make that assumption with the package of conditions? There does seem to be a legal text in the most conventional sense; the package of condi-tions consists of carefully phrased provisions in numbered sections, and was accompa-nied by a committee report on the treaty and the conditions.

But perhaps this “statutory interpretation” approach is mistaken in taking as a se-rious legal text what might be thought a mish-mash of conditions cobbled together to en-sure that the treaty could achieve the necessary two-thirds majority. In her detailed ac-count of the history of the conditions added to the ICCPR, Natalie Kaufman characterizes the conditions as the product of a “reservations game”:

The game’s objective was to foresee any possible objection that might be raised within the Senate; the strategy was to identify each potential objection and oblit-erate it with the broadest possible attachment. . . . By trying to second guess the Senate, the drafters of the attachments raised some issues that probably would not otherwise have been raised and reinforced the sense of controversy that the oppo-sition had settled over the treaties in the 1950s. . . . The impact of these recom-mendations was to create an aura of defectiveness rather than desirability . . . .45

“The end result,” she concludes, “was a set of recommended attachments in which the players were engaged in an exercise of one-upsmanship.”46 Treating the result of such a process as a coherent whole, reference to which aids in the interpretation of particular conditions, might seem a futile or even naïve endeavor. Nevertheless, the effort seems justified. Similar observations could probably be made about the political process that typically gives rise to statutes. What counts is whether there is some account of the product that makes sense of it – and, as I will argue, there is.47

Applying the two interpretive principles, this Article will focus on a temporal problem with the Senate’s declarations of non-self-execution – a problem that will only become more pronounced with time, and for which the narrowest remedy is one that is sensitive to federalism. The Article will illustrate the problem and the proposed solution in a concrete context: the circumstances under which trial of a juvenile defendant as an adult is consistent with the ICCPR. The general approach the Article takes could be ap-plied in the case of other treaties as well. But an intensive focus on one important issue

44 Even with a statute, there can be questions about regarding it as a whole. When a statute has been amended a number of times, for example, there is always the possibility that later legislatures used a term in different way from the original legislature, or sought to change the “object and policy” of the statute. See CROSS, supra note 42, at 51. And a “text” might in-clude more than one statute, encompassing related legislation. See POPKIN, supra note 42, at 87; cf. Vienna Convention on the Law of Treaties, art. 31(2) (text of treaty to be interpreted in light of other treaties made in connection with it). These considerations suggest that the text of the ICCPR itself needs to be considered along side the package of conditions. More-over, reference to the set of conditions attached to one human rights treaty may be relevant, by comparison and contrast, to interpreting the set of conditions attached to another. 45 KAUFMAN, supra note 1, at 151. 46 Id. 47 See p. 34 infra.



regarding this one treaty is the best way to make the parameters of the problem and the solution clear.

The temporal problem relates to the impossibility, at the time when a treaty is rati-fied, of anticipating all future legislative and policy developments. Suppose, that is, that the standard approach largely ensures that the U.S. was largely in compliance with its ob-ligations under the ICCPR when it ratified the treaty. The combination of no judicial en-forcement and no implementing legislation would be unremarkable under those circum-stances.

But even if one makes this optimistic assumption, there is a problem that can only get worse over time, especially in a federal system. Whatever judgment the Senate could have made in 1992 regarding the consistency with the ICCPR not only of federal law but also the mass of state constitutional provisions, statutes, regulations, and practices, it could not easily be thought to have predicted all future domestic legal developments, state and federal, and to have passed on the consistency of all of them with U.S. obliga-tions under the ICCPR.

In the face of these two facts – the Senate’s statement that it had no intention of enacting implementing legislation and a record of inaction extending nearly two decades – the conclusion that there is a problem is unavoidable.

What this article will attempt to show is that this temporal problem is not merely theoretical. It shows up in force in the question of state statutes that permit juveniles to be tried as adults without a prior individual, judicial determination that doing so is appro-priate.

Essentially, the U.S. Senate attached reservations and understandings to its ratifi-cation that, as will be shown below, do allow juvenile defendants to be tried as adults, but only after an individualized, judicial hearing. The Senate’s actions accurately reflected the main (though not exclusive) thrust of state law on the matter as it then existed. Thus the reservation and understanding embodied the standard approach, which was to make sure that any U.S. treaty obligations would be tailored to the current state of U.S. law.

Just at the time the U.S. ratified the treaty, however, a significant shift in the treatment of juvenile offenders gained force. The 1990s saw a wave of new legislation aimed at getting tough on juvenile offenders. New state statutes were enacted making it far easier than before to try minors as adults.

The result is a temporal problem. The content of the reservation and understand-ing reflects the general state of the law as of 1992. But the law has significantly changed since then, in ways that are difficult to square with the specific obligations the Senate so carefully tailored.

This Article concludes that the most sensible resolution of the problem – one that is genuinely consistent with any reasonable intention the Senate may have had when it ratified the ICCPR – is to interpret the declaration of non-self-execution to exclude state laws that were enacted after the time the U.S. ratified the treaty. As discussed in Part Three, the approach finds additional support in the “narrow reading” presumption that courts have applied in determining the scope of express Congressional preemption of state regulation.



Granted, there is no question of “preemption” here in the usual sense. States re-main free to legislate on matters covered by the treaty (though if they do so inconsistently with the treaty, they may place the U.S. in violation of its international obligations). But the declaration of non-self-execution amounts to a federal intervention into separation of powers matters at the state level, favoring state legislatures over state courts in the matter of ensuring conformity with the ICCPR.

The question whether intervention of this sort is within the federal government’s treaty powers does not arise with respect to statutes enacted before 1992; the Senate’s work in removing any inconsistency between the ICCPR and domestic law was aimed at ensuring that there would be nothing to implement domestically. But this kind of inter-vention should not be presumed for the period after ratification in the absence of an ex-press statement to that effect.

Part II. The ICCPR and U.S. Law Concerning the Trial of Juveniles as Adults

A. The Juvenile Justice System The juvenile justice system in the U.S. has undergone considerable changes since

the creation of the first juvenile court in Illinois in 1899.48 The overwhelming number of juveniles who are tried are handled in state courts, not federal courts.49 While the history of juvenile courts is broadly similar throughout the country, state systems vary in impor-tant respects.

By 1925, almost all states had created juvenile courts. Typically these courts handled all criminal charges against individuals under 18, unless the court made an indi-vidualized determination to waive jurisdiction and allow the defendant to be tried as an adult.50 This determination could be made without a hearing or an opportunity for the defendant’s counsel to object.51

Juvenile courts operated much more informally than did other courts handling criminal cases. Procedural formalities, attorneys, and due process protections were all modified or dispensed with in the name of taking a flexible approach aimed at rehabilitat-ing rather than punishing the juvenile. Sanctions or treatment could not extend beyond age 21.52

The informality of the system was significantly changed in the late 1960s through a series of Supreme Court decisions beginning with In re Gault.53 In these decisions the Supreme Court held that defendants in juvenile courts were entitled to a number of basic 48 2006 National Report 94. 49 2006 National Report 117. For a description of how juveniles are handled in the federal system, see id. at 117-118. 50 “Most juvenile courts had exclusive original jurisdiction over all youth under age 18 who were charged with violating criminal laws. Only if the juvenile court waived its jurisdiction in a case could a child be transferred to a criminal court and tried as an adult. Transfer deci-sions were made on a case-by-case basis using a “best interests of the child and public” stan-dard, and were thus within the realm of individualized justice.” 2006 National Report 94. 51 52 2006 National Report 94-96. 53 387 U.S. 1 (1967). See also In re Winship, 397 U.S. 358 (1970).



due process protections (including rights against self-incrimination and to confront wit-nesses, but not a right to a jury trial).54 In Kent v. United States, the Supreme Court also held that where state law provides for juvenile courts to waive jurisdiction, the Constitu-tion requires a hearing.55

Despite these inroads into the informality of juvenile courts, they still have sig-nificant differences from adult criminal courts. Procedure is still more informal. Juve-nile court proceedings are often protected by some type of confidentiality statute, though the extent of confidentiality varies by state.56 And most significantly, juvenile defen-dants found guilty are typically subject to very short sentences – until they reach the age or majority or some other specified age, such as 21.

Given the significant differences between the criminal justice system and the ju-venile justice system, the decision to try a juvenile as an adult has major consequences. One consequence has been the subject of the most attention: the possibility of life im-prisonment without possibility of parole. The Supreme Court determined last term in Graham v. Florida57 that such a sentence is unconstitutional in non-homicide cases where the defendant was a juvenile at the time of the crime. Graham does not, however, preclude such sentences in the case of juvenile defendants charged with homicide.58

54 2006 National Report 96: Formal hearings were now required in waiver situations, and delinquents facing pos-sible confinement were given protection against self-incrimination and rights to receive no-tice of the charges against them, to present witnesses, to question witnesses, and to have an attorney. Proof “beyond a reasonable doubt” rather than merely a “preponderance of evi-dence” was no required for an adjudication.” See also McKeiver v. Pennsylvania, 403 U.S. 528 (1971) (plurality opinion) (holding that rights in juvenile court do not include trial by jury). 55 Kent v. United States, 383 U.S. 541 (1966). See also Breed v. Jones, 421 U.S. 519 (1975). 56 2006 National Report 108-09. 57 58 There is good reason to believe that such sentences violate international law. The Chil-dren’s Rights Convention includes a flat ban on imposing life imprisonment without possibil-ity of parole on defendants who were juveniles when they committed the crime. CRC Art. 37(a). See also CRC art. 37(b) (any imprisonment of someone who was a juvenile at the time of the crime “shall be used only as a measure of last resort and for the shortest appropriate period of time”). The U.N. Human Rights Committee has taken the position that such sentencing is also not consistent with the United States’ obligations Article 24(1) of the ICCPR. Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: United States of America – Concluding Observations, ¶ 34, U.N. Human Rights Committee, Eighty-seventh session, 10-28 July 2006, CCPR/C/USA/Q/3/CRP.4. Article 24(1) provides:

Every child shall have, without any discrimination as to race, colour sex, language, religion, national or social origin, property or birth, the right to such measures of pro-tection as are required by his status as a minor, on the part of his family, society and the State.



Even if a life sentence is not at issue, juveniles who are tried as adults face much longer sentences than the juvenile justice system can mete out. As juveniles, their incar-ceration may well end after a relatively brief period, such as 18 or 21, though state stat-utes may provide for longer terms. Another consequence is that juveniles who are tried as adults may be subject to felony murder statutes. Whether the application of felony murder statutes to juveniles is consistent with international law is unclear,59 but in any case it represents a serious consequence for the defendant. Additionally, juveniles who are tried as adults may be imprisoned in an adult prison if convicted (or detained in an adult facility pending trial). Article 10 of the ICCPR requires segregation of juvenile of-fenders from adults before and after conviction. Yet another consequence in many states is a permanent loss of juvenile status in the criminal justice system. A number of states have statutes providing that juvenile who are treated as an adult for a particular crime forever lose their status as juveniles.

Today there are three basic ways in which a person under 18 at the time of the al-leged offense might be tried as an adult: pursuant to an individualized judicial determina-tion; at a prosecutor’s sole discretion; or the full or partial elimination of juvenile court jurisdiction.

The individualized judicial determination approach is the one that state statutes typically took for many years, and it was by far the predominant approach at the time the ICCPR was up for ratification.60 As of 2004, 45 states and the District of Columbia had statutes giving juvenile courts the power to make an individualized determination whether to waive jurisdiction so that the defendant can be tried as an adult in criminal court.61 In 2000, there were approximately 6,000 cases of juvenile waiver nationwide. In six states, these judicial waiver provisions are the only means by which individuals subject to the jurisdiction of the juvenile court can be tried as an adult in criminal court. The rest of the states that have judicial waiver provisions also have other means (de-scribed below) by which juveniles may be tried as adults in some instances.62

The factors the court considers in making the determination are generally pre-scribed by statute. One major factor is the “amenability” of the defendant to treatment; a lack of amenability is a reason to waive jurisdiction.63 Other factors can include “the availability of dispositional alternatives for treating the juvenile, the time available for sanctions, public safety, and the best interest of the child.”64 Some states prescribe “mandatory waiver” of juvenile court jurisdiction in certain cases. In these mandatory waiver cases, the court has no discretion whether to waive jurisdiction and bind the de-

59 The U.S. Supreme Court has noted the extent to which the felony murder doctrine has been rejected or never adopted in the first place in many Commonwealth countries and Europe. See Enmund v. Florida, 458 U.S. 782, 796 n.22 (1982). 60 Neelum Arya, Using Graham v. Florida to Challenge Juvenile Transfer Laws, 71 LA. L. REV. 99, 108-09 (2010). 61 2006 National Report 112. 62 2006 National Report 116 (referring to Hawaii, Kansas, Maine, Missouri, New Hampshire, and Texas). 63 2006 National Report 110-112. 64 2006 National Report 112-113.



fendant over to criminal court to be tried as an adult. In substance these statutes are the same as statutes that mandate trial of juveniles as adults in prescribed cases, with the added procedural step of transferring the case from juvenile court to criminal court.65 Roughly half the states prescribe a minimum age below which juvenile defendants cannot be transferred to criminal court. This age ranges from 10 to 15, with 14 being the most common.66

The individualized judicial determination approach was the predominant one for many years. In the late sixties and early seventies, in reaction to Kent’s requirement of a hearing in cases of judicial waiver, some jurisdictions did create some limited excep-tions.67 But it was the wave of “get tough on crime” statutes in the 1990s that carved most deeply into the former approach of a prior judicial determination.68 As Neelum Arya puts it,

Although youth have been prosecuted as adults since the beginning of the juvenile court system, many of the juvenile transfer laws were significantly expanded dur-ing the 1990s as part of a “moral panic” that seemed to take over the country. Ex-ploiting the public’s fears about juvenile “superpredators” and rising juvenile homicide rates, conservative politicians passed legislation in nearly every state be-tween 1992 and 1999, making it easier for youth to be prosecuted in the adult criminal system. As a result, every year an estimated 200,000 youth are prose-cuted, sentenced, or incarcerated as adults across the United States instead of be-ing adjudicated in the juvenile justice system.69

These statutes reflected a move away from an exclusive emphasis on treatment and rehabilitation towards inclusion of other goals such as promoting accountability and protecting the public.70 There has also been a trend to limit confidentiality of juvenile court proceedings and make them more open to the public.71 Mostly the trend has been selective, taking the form of a broadening of the possible ways in which certain juveniles might be tried as adults in criminal court. In a few states the trend was much broader. As a result, while the age limit that determines whether an individual is subject to the juris-diction of the juvenile court remains 18 in most states, it is 16 in three states and 17 in 10 states.72

65 2006 National Report 112. 66 2006 National Report 114. 67 On Kent, see text accompanying note 55 supra. These exceptions typically took the form of the “prosecutorial determination” and “statutory exclusion” approaches discussed below. See pp. 18-20 infra. 68 Some states also enacted statutes imposing mandatory sentences for certain crimes on de-fendants convicted in juvenile court. 2006 National Report 96. 69 See Arya, supra note 60, at 107-08. See also Robert E. Shepherd, Jr., Challenging Change: Legal Attacks on Juvenile Transfer Reform, 12(3) CRIM. JUST. 55, 55 (“Since 1995, all but 10 jurisdictions have greatly eased the ability of the state to try juveniles as adults.”). 70 2006 National Report 98-99. 71 2006 National Report 108-09. 72 2006 National Report 103.



The trend took the form of a vast increase in the range of two other approaches to trying juveniles as adults, approaches which had previously been used on a limited basis. The two approaches go by a number of different names; for convenience I will call them “prosecutorial determination” and “statutory exclusion.”

First, in some instances – a minority of states – a juvenile might be tried as an adult based purely on a prosecutorial determination. In these states the juvenile and the adult criminal courts have concurrent jurisdiction over certain offenses committed by mi-nors. The criteria triggering concurrent jurisdiction vary, but typically include violence, use of firearms, or a history of prior offenses.73 Because the courts have concurrent ju-risdiction, prosecutors have discretion whether to charge juveniles as adults or juveniles. There may be a lower age limit to the availability of such a mechanism.74

Second, in other states a juvenile might be tried as an adult through a statute that fully or partially eliminates juvenile court jurisdiction. These “statutory exclusion” stat-utes are also called “direct transfer” or “direct file” statutes. In these instances the statute mandates that the defendant be tried in criminal court as an adult. There is no discretion in the decision to do so. This result is achieved in either of two ways.

One is by a limited statutory exclusion for serious offenses committed by juve-niles above a certain age. The most common type of legislation passed in the wave of efforts to get tough on juveniles in the 1990s was statutes that (at least formally) elimi-nate any discretion in the decision whether to charge juveniles as adults. They eliminate juvenile court jurisdiction for prescribed serious offenses.75 These statutes typically have an age limit ranging from 13 to 16.76 Typically this minimum age is the same for all the included serious offenses, but it varies by offense in a few states.77

The other way the full or partial elimination of juvenile court jurisdiction can be achieved is through a general statutory exclusion for all offenses committed by juveniles under above a certain age. In most states, juvenile courts have jurisdiction over all de-fendants under the age of 18, subject to the exceptions here discussed. As of 2006, how-

73 2006 National Report 113. 74 2006 National Report 113. Florida has such a statute. Under this statute, there is no judi-cial review of the determination to charge a juvenile as an adult, so long as the statutory crite-ria are met. CITE. The number of juveniles so charged in 2001 was 2,000 in Florida alone. There are no national statistics on this point. National Report 113. 75 2006 National Report 113-14. 76 2006 National Report 114. 77 To be sure, it might be argued that such cases do not count as instances of trying juveniles as adults, given that the affected individuals are not subject to the juvenile court’s jurisdiction at all. But to take this view would be to mistake one question – what is the jurisdiction of the juvenile court? – for another – at what age does the law provide for an individual to become an adult? That the drinking age is set by state law at age 21 does not, for instance, mean that the individual is not an adult until that point. In all 13 states that limit juvenile court jurisdic-tion to those under 16 or 17 (instead of those under 18), the law still generally provides for 18 as the age of majority. [Connecticut, New York, North Carolina (16); Georgia Illinois, Lou-isiana, Massachusetts, Michigan, Missouri, New Hampshire, South Carolina, Texas, and Wisconsin (17).]



ever, 3 states limited the jurisdiction of juvenile courts to defendants under 16, and 10 states to defendants under 17.78 Thus any juvenile 15 or 16 or older (depending on the state) charged with an offense must be tried as an adult.79

The difference between the two approaches, then, concerns the prosecutor’s dis-cretion. In the former approach, the prosecutor chooses the court in which to prosecute juveniles charged with certain serious offenses; in the latter approach, a prosecutor who charges a juvenile defendant with certain serious crimes has no choice but to bring the defendant before the adult criminal court.

We might leave it as this, since this is how the statutes are written – discretion in one case, and no discretion in the other. This description, however, somewhat overstates the difference. In practice, prosecutors always have discretion when charging any defen-dant, minor or adult. Even if the facts might, in the prosecutor’s view, support the most serious charge available, a prosecutor might unilaterally decide it was more appropriate to press lesser charges, or might make that decision as part of a plea bargain. In this sense, even in states that take a statutory exclusion approach, a prosecutor could be said to retain some discretion as to whether the juvenile defendant will be tried as an adult.

Still, there is an important difference between the prosecutorial determination statutes and the statutory exclusion statutes. Consider a prosecutor faced with a minor who, the prosecutor has concluded based on a review of the facts, has committed a seri-ous crime such as murder. Under prosecutorial determination statutes, the prosecutor has complete freedom to bring that case before the juvenile court rather than the criminal court if the former appears most appropriate to the prosecutor in light of the juvenile’s circumstances. The prosecutor has the power to make a fully individualized determina-tion.

In a statutory exclusion jurisdiction, on the other hand, the prosecutor can bring the minor before the juvenile court only by charging him with a crime significantly less serious crime than the prosecutor has concluded the minor committed. Even from a prac-tical perspective, then, the statutory exclusion statutes give prosecutors significantly less discretion than do the prosecutorial determination statutes. The prosecutor has discretion, 78 2006 National Report 103. 79 While no definitive statistics are available, it may well be, as the Justice Department has noted, that the number of juveniles tried as adults as a result of this general statutory exclu-sion in these 13 states exceeds the combined number of juveniles tried under all the other provisions. 2006 National Report 114. 2006 National Report 114. Number so tried: [2006 National Report gives no figures].

It should also be noted that even where state law provides for some means for juveniles to be tried as adults without a prior judicial determination, various “fail-safe” mechanisms may create some opportunity for a juvenile who is subject to adult criminal court jurisdiction to seek a juvenile court disposition. Some states have enacted “reverse waiver” mechanisms. As of 2006, twenty-five states permit juveniles under the jurisdiction of criminal courts to petition to transfer the case back to juvenile court. 2006 National Report 116. Another mechanism is “blended sentencing.” Seventeen states permit blended sentencing, under which juveniles convicted in criminal court may seek a juvenile disposition. 2006 National Report 116. [Explain.]



but cannot make a fully individualized determination of whether it is most appropriate to charge the defendant as an adult. Since the courts in such jurisdictions will typically not have that discretion, either, there is no actor who can make a fully individualized deter-mination.

Obviously, the system is complex, and generalizations are difficult. What can be said with certainty is that in some instances there may be some opportunity for a judicial determination of the appropriateness of trying the juvenile defendant as an adult, but there are other instances where no such ruling is ever possible. And in those situations where there is no judicial determination, prosecutors may have the power to make a fully individualized determination, and in others, not. It may help to give some specific exam-ples of the range of statutory schemes.

One example would be a state with a general age of majority of 18 and a statute entirely excluding 16 or 17 year-old defendants from the jurisdiction of the juvenile court. A statute of this sort would give neither judge nor prosecutor any discretion as to whether it was appropriate to try the defendant as a juvenile or an adult.80

A second example would be a state that statutorily excludes certain offenses from the jurisdiction of the juvenile court, and also provides no fail-safe.81 Here, too, neither judge nor prosecutor would have the power to make a fully individualized determination of whether it was most appropriate to try a juvenile defendant as an adult.

A third example would be a state with a prosecutorial determination law. If such a state had no fail-safe mechanism, the prosecutor but not the judge would have the power to make a fully individualized determination.82 If the state did have a fail-safe mechanism, then (depending on the details of the fail-safe mechanism), both the judge and the prosecutor would have the power to make a fully individualized determination.83

What bearing does the ICCPR have on these various possibilities? That is the question to which we now turn.

B. The ICCPR and the Trial of Juveniles as Adults The ICCPR is binding on the U.S, which ratified it in 1992. It accords some im-

portant protections to juveniles in the criminal justice system. The most well-known is the prohibition on applying the death penalty to offenders who were under 18 at the time of the offense. But there are a number of other provisions as well. These protections ap-ply, broadly speaking, to juveniles. Before setting out the provisions relating to the trial of juveniles as adults, it may be worthwhile to address exactly whom these provisions protect.

1. The Definition of a Minor

The ICCPR uses a variety of terms to describe protected individuals – “juvenile offenders,” “juvenile persons,” “minor,” and “child.” There is no definition of any of

80 The same would be true in a state with mandatory judicial waiver. See p. 16 supra. 81 See note 79 supra. 82 [Cite.] 83 [Cite.]



these terms in the treaty, nor any indication that the different terms carry different mean-ing. Obviously, if the very fact that an individual is tried as an adult in a state’s criminal justice system meant that he or she no longer qualified as a minor entitled to the ICCPR’s protections, those protections would be illusory.

The ICCPR would offer the greatest protection if it simply set age 18 as the minimum age of majority for all purposes. Nothing in the ICCPR, however, suggests such a bright line rule. Moreover, customary international law, which is relevant to in-terpreting treaties, suggests that states have some flexibility in this regard.

To be sure, a number of instruments adopt age 18 as the point at which an indi-vidual ceases to be a minor. Eighteen is the default age set in Article 1 of the Children’s Rights Convention. 84 The UN Rules for the Protection of Juveniles Deprived of Their Liberty, adopted by the U.N. in 1990, define a juvenile as anyone under 18.

These provisions do not, however, establish that 18 is the minimum age of major-ity under international law. The Children’s Rights Convention makes the default age 18, but it does say that a person under 18 may not be a “child” under the convention if the particular state designates some earlier age as the age of majority. Another example is the “Standard Minimum Rules for the Administration of Juvenile Justice” (the Beijing Rules), which the UN adopted in 1985. The Beijing Rules do not define “juvenile” in terms of a specific age; on the contrary, they recognize that national systems may vary.85

It seems clear, than, that customary international does not set age 18 as an abso-lute point of majority. Some variation from one state to another is allowed. What inter-national law does not permit a state to do, though, is set a lower age of majority for par-ticular classes of criminal offenses, or for criminal offenses in general, than it does for the age of majority in general. It is clear, for example, that the reference to the age of “ma-jority” in Article 1 of the CRC refers to an individual’s full legal capacity86 -- not just for purposes of a particular prosecution. Accordingly, while it is true, as discussed below, that under some circumstances a state may try someone as an adult even if that individual is of an age that generally qualifies that individual as a juvenile, a state cannot justify that action simply by classifying that individual as an “adult” for purposes of prosecution.

In nearly all U.S. states, age 18 is the general age of majority.87 This means that anyone under 18 who comes under the purview of the criminal justice system is a minor – even in those states that have eliminated juvenile court jurisdiction for individuals 16 or 17 or older.

84 “For purposes of the present Convention, a child means every human being below the age of eighteen unless under the law applicable to the child, majority is attained earlier.” 85 See Art. 2(2) and art. 4. 86 See SHARON DETRICK, A COMMENTARY ON THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 59 (1999). 87 See RICHARD A. LEITER, ED., NATIONAL SURVEY OF STATE LAWS 564-574 (6th ed. 2008). The age of majority is set at 19 in Alabama and Nebraska, at 21 in Mississippi, and at 18 in Kansas but at 16 if married. CITE STATUTES. All states also have specific provisions re-lating to a variety of matters, such as emancipation, contracting, bringing suit, and consent to medical treatment. See Leiter, supra.



2. The ICCPR and the Trial of Juvenile Defendants as Adults

The protections the ICCPR accords juveniles in the criminal justice system reflect two basic principles. One is treatment in accordance with the best interests of the juve-nile.88 Article 24(1) of ICCPR requires states to provide “[e]very child” with “such measures of protection as are required by his status as a minor.” Article 10(3) of the ICCPR provides that “[j]uvenile offenders shall be segregated from adults and accorded treatment appropriate to their age and legal status.” Article 10(2)(b) mandates that “[a]ccused juvenile persons . . . be separated from adults and brought as speedily as pos-sible for adjudication.” And Article 14(4) provides that “[i]n the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of pro-moting their rehabilitation.”

The second governing principle is treatment of persons in the criminal justice sys-tem in accordance with human dignity. Article 10(1) of the ICCPR provides that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” Article 7 prohibits “cruel, inhuman or degrading treatment or punishment.”

Do these provisions of the ICCPR ever permit trial of a juvenile as an adult in criminal court? In one sense the question is unanswerable in the abstract. The ICCPR does not by its express terms require the establishment of a separate juvenile justice sys-tem. This stands in contrast to the American Convention on Human Rights, which pro-vides that minors be “brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.”89 What the ICCPR does require is that the two principles of best interests and human dignity be observed in each case – whatever the state’s particular system may be. In theory, a state might satisfy these two principles through a unitary system that was designed to ensure their imple-mentation in every case involving a juvenile defendant. But in a system (like that in the

88 There are other provisions giving juveniles special protections, not here discussed, but which might be relevant. E.g., Art. 14(1). 89 American Convention art. 5(5). Conceivably this seemingly absolute mandate may be sub-ject to qualification in light of Article 30, which recognizes the possibility of restrictions on rights if those restrictions are embodied in “laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.” More likely, though, Article 30 is itself intended to structure the exercise of restrictions that Chap-ter II (“Civil and Political Rights”) expressly permits. Some rights in the American Conven-tion are expressed in absolute terms – e.g., Art. 5(2) (the right not to be subjected to torture) and Art. 6(freedom from slavery) – while others expressly contain limitations – e.g., Art. 12(3) (permitting restrictions on freedom of religion only where “prescribed by law” and where “necessary to protect public safety, order, health, or morals, or the rights and freedoms of others.” The requirement in Article 5(5) that minors be tried before specialized tribunals is expressed in absolute terms. When the Carter Administration proposed ratification of the American Convention, it noted that U.S. laws permitted juveniles to be tried as adults in some cases, and proposed a reservation that the U.S. “reserves the right in appropriate cases to subject minors to procedures and penalties applicable to adults.” Four Treaties Pertaining to Human Rights: Message from the President, 95th Cong., 2d Sess. at XVIII (1978).



U.S.) which uses a separate juvenile court system to ensure that the two principles are satisfied, the question is meaningful.

Given the severity of the impact on juvenile defendants of being tried as adults, it might be plausible that transferring them to adult courts can never be consistent with the two principles prescribed by the ICCPR. It is not, after all, clear that any reliable system or procedure can be developed to distinguish, in a non-arbitrary way, juvenile offenders who might be amenable to rehabilitation (or who otherwise would best be handled within the juvenile justice system) from juvenile offenders who are incorrigible (or who are oth-erwise deserving of treatment as adults). The traditional mechanism for making this de-termination had been, as noted, an individualized hearing. But neither judges nor psy-chologists may be able to predict in any meaningful way into which category an individ-ual falls; by virtue of their immaturity, juvenile defendants may not work effectively with their lawyers; and judges are not necessarily immune to emotion or even strong public opinion in sensational cases.90 A system that operates with a high degree of arbitrariness can hardly be said to operate in the best interests of the child or accord juvenile defen-dants any dignity.

Moreover, these kinds of problems were cited by the Court in Graham as reasons for adopting a categorical ban on sentencing juvenile offenders to life in prison without parole, rather than imposing constitutionally based requirements for the availability of that sentence in particular cases.91 One might well ask, if that is so, why anything short of a flat ban on trying juvenile offenders as adults will escape the charge of arbitrari-ness.92

On the other hand, states have legitimate interests in punishing crime and in pro-tecting the public by deterring future violations and removing convicted offenders from the general public. That these interests might justify trying some juveniles as adults would not seem to be out of the question. The long history of judicial waiver in this country, moreover, might suggest caution about any conclusion that trial of juveniles as adults is never appropriate. And while deep skepticism about courts’ ability to make meaningful, non-arbitrary determinations as to whether to permit transfer of particular juvenile defendants to criminal court is warranted, it seems likely that prosecutorial dis-cretion and statutory exclusion approaches result in even greater arbitrariness.

In any event, whatever may be the best interpretation of the ICCPR as unmodi-fied by any condition, the answer in the case of the United States is clear, given the con-ditions the Senate imposed: trial of juveniles as adults is permitted under the treaty, but only upon an individualized judicial determination that doing so is appropriate.93

3. The Senate’s Package of Conditions to the ICCPR

90 For an excellent account of these difficulties, see Arya, supra note 60, at 129-33. 91 See id. 92 See id. at 147-48 (arguing that even judicial waiver procedures are unconstitutional, given the arbitrariness of the determinations). 93 Still, it is worth noting that compliance with a treaty is not necessarily sufficient to ensure compliance with constitutional requirements, which in some cases can be more protective of rights than are human rights treaties.



The U.S. was sufficiently concerned that the ICCPR might preclude trial of a ju-venile as an adult that it took a reservation to Articles 10 and 14. The Carter Administra-tion took note of the requirements in paragraphs (2) and (3) of Article 10 that accused persons be separated from convicted, that juveniles be segregated from adults and tried as speedily as possible, and that rehabilitation constitute the essential aim of the prison sys-tem. Observing that “[p]ractice and policy in United States prisons does not fully accord with these standards,”94 it proposed that the U.S. declare that it considered the rights in Article 10(2) and 10(3) “as goals to be achieved progressively rather than through imme-diate implementation.” 95 Though it proposed reservations to other parts of Article 14, the Carter Administration did not propose a reservation to Article 14(4), which requires that procedures for juveniles “shall be such as will take account of their age and the de-sirability of promoting their rehabilitation.”96

The Bush Administration took a different approach in 1991. Taking note of the provisions in Article 10(2) and 10(3) regarding juveniles, as well as 14(4),97 it stated:

Although current domestic practice generally is in compliance with these provi-sions, it is important that flexibility remain to address exceptional circumstances in which trial or incarceration of juveniles as adults is appropriate: for example, trial of certain juveniles as adults based on their criminal histories or the nature of their offenses, and incarceration of particularly dangerous juveniles as adults in order to protect other juveniles in custody. Moreover, special treatment cannot be guaranteed by the military justice system to those who volunteer for the service while under age 18.98

It went on to propose a reservation that stated that the

policy and practice of the United States are generally in compliance with and sup-portive of the Covenant’s provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in ex-ceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article 14. The United States further reserves to these provisions with respect to individuals who volunteer for military service prior to age 18.99

94 Four Treaties Pertaining to Human Rights: Message from the President, 95th Cong., 2d Sess. at XII (1978). QUOTE. 95 Four Treaties Pertaining to Human Rights: Message from the President, 95th Cong., 2d Sess. at XII (1978). See KAUFMAN, supra note 1, at 161-64. QUOTE. 96 Four Treaties Pertaining to Human Rights: Message from the President, 95th Cong., 2d Sess. at XIII (1978). QUOTE. 97 [Quote.] 98 99 [Go through reaction of parties testifying.]



The Senate adopted the Bush proposal. 100

In general, when a country takes a reservation to a treaty, that reservation limits the scope of the obligation, so long as the reservation is valid. The reservation is proba-bly not invalid.101 And it clearly leaves open the possibility of trying juveniles as adults. Thus, regardless of how the ICCPR might be interpreted in the absence of the reservation, for the U.S. the reservation precludes any conclusion that trying juveniles as adults al-ways violates the treaty.

What the U.S. reserved, however, was the power to try juveniles as adults in “ex-ceptional circumstances.” The key question is what this phrase means. The proper ap-proach to determining the meaning of this phrase looks to an interpretive “understanding” adopted by the Senate when it ratified the ICCPR. The most important point, generally overlooked to date, is that this understanding essentially requires a case-by-case determi-nation.

The U.S. did not define the term in connection with its reservation to Articles 10 and 14. Logically, moreover, there could be some ambiguity. “Exceptional circum-stances” could refer either to case-by-case determinations (perhaps the most natural read-ing), or to classes of unusual cases.

A second ambiguity relates to the meaning of the term “exceptional.” It might re-fer to the number of instances, or it might refer to the character of the circumstances. For example, the Human Rights Committee has said that the U.S. is not observing that limita-tion adequately, given reports of some 2,225 youthful offenders serving terms of life sen-tences without parole.102 This criticism treats the “exceptional circumstances” require-ment at least in part as a numerical one gauged by results: the circumstances cannot be “exceptional” if they take place too often. Still, the Committee’s reading of the ICCPR is not definitive.

As a purely logical matter, then, it is conceivable that classification-based schemes (e.g., statutory exclusion statutes) could be compatible with U.S. obligations un-der the ICCPR. The argument would be that a first degree murder by a juvenile is an ex-ceptional circumstance.

However, the U.S. did define the term in connection with another related provi-sion of the ICCPR, and it did so in such a way as to remove the ambiguity. Article 10(2)(a) states that accused persons shall be kept separate from convicted persons, “save

100 U.S. Reservations, Understanding, and Declarations, ICCPR, ¶ I(5), 138 Cong. Rec. 8068 (1992): “That the policy and practice of the United States are generally in compliance with and supportive of the Covenant’s provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in exceptional circum-stances, to treat juveniles as adults, notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article 14. The United States further reserves to these provisions with respect to individuals who volunteer for military service prior to age 18.” 101 [Discuss]. 102 See Consideration of Reports Submitted by States Parties Under Article 40 of the Cove-nant: United States of America – Concluding Observations, para. 34, U.N. Human Rights Committee, Eighty-seventh session, 10-28 July 2006, CCPR/C/USA/Q/3/CRP.4.



in exceptional circumstances.” Thus the ICCPR refers to “exceptional circumstances” in a related context.

Significantly, the Bush administration noted that the “reference to ‘exceptional circumstances’ is drawn from Article 10, paragraph 2(a), which permits the incarceration of accused adults with convicted adults under such conditions.”103 Thus, it expressly tied the meaning of “exceptional circumstances” in this reservation to the meaning of “excep-tional circumstances” in Article 10(2)(a).

And the U.S. entered an “understanding” that “exceptional circumstances” under Art. 10(2)(a) means that an accused person might be kept with convicted persons in light of his or her overall dangerousness.104 The phrase, “an individual’s overall dangerous-ness,” strongly suggests a case-by-case determination. In particular, the word “overall” makes the most sense as a reference to the totality of factors that might indicate a per-son’s dangerousness.

Thus, in framing the reservation that permits trial of juveniles as adults, the U.S. adopted a restrictive condition – it could be done only in “exceptional circumstances” – that is used elsewhere within the same article of the ICCPR, and which the U.S. itself de-fined in a way that is most easily read to refer to individualized determinations. It is not that by adding conditions the Senate supplemented the obligations of the ICCPR; rather, the conditions clarify those obligations with respect to the U.S.

There remains a significant question: Must these case-by-case determinations be judicial determinations? Why would not a prosecutor’s individualized review suffice? At the outset, it is worth noting that even if a prosecutorial case-by-case determination were sufficient, there would be problems with the compatibility of U.S. obligations under the ICCPR and statutory exclusion statutes. As noted earlier, the discretion left to prosecu-tors is significantly constrained in ways that have nothing to do with the best interests and dignity requirements.105

But there are good reasons in terms of the text of the ICCPR to conclude that the case-by-case determination must be made by a judge, at least in the great majority of cases. Article 14(1) of the ICCPR states that “[a]ll persons” (including, of course, juve-niles) are entitled to a “fair and public hearing by a competent, independent, and impartial tribunal established by law” (emphasis added) in the “determination of any criminal charge.” They are also entitled to appellate review by a “higher tribunal.”106

103 See US ICCPR Conditions, supra note 11. See also Stewart, supra note 5, at 1195 (not-ing that “[t]he reference to ‘exceptional circumstances’ is drawn from Article 10, paragraph 2(a), which permits the incarceration of accused adults with convicted adults under such con-ditions”). 104 The Senate declared that it understood this provision of the ICCPR to “permit the impris-onment of an accused person with convicted persons where appropriate in light of an individ-ual’s overall dangerousness.” U.S. Reservations, Understanding, and Declarations, ICCPR, ¶ II(3). 105 See p. 19 supra. 106 ICCPR Art. 14(5) (emphasis added).



A blanket deprivation of judicial review of serious youthful offender status or of judicial or jury consideration of the juvenile’s circumstances is also inconsistent with the mandate in ICCPR art. 14(4) that the procedure for each juvenile “be such as will taken account of their age and the desirability of promoting their rehabilitation.” Precluding consideration by the court of the individual juvenile’s maturity, vulnerability to pressure, background, and the like is contrary to the best interests of the child, and so degrades him or her.

This interpretation of U.S. obligations – to require an individualized judicial de-termination of the appropriateness of trying a juvenile as an adult – has so far been based primarily on the text of the package of conditions and its relation to the text of the ICCPR. Treating the package of conditions like a statute, one might take the position that its plain language is all we need to consult. The Senate used a term – “exceptional circumstances” – that it defined relatively clearly in a closely related context. The lan-guage of the text indicates that many state statutes designed to dispense with an individu-alized judicial determination as to whether to try a juvenile defendant as an adult are in-consistent with U.S. obligations under that treaty. From a plain language approach, what the Senate may have had in mind is beside the point.

There is, though, an argument for looking beyond the text, and trying to determine what the Senate may have intended in adopting the conditions.107 The whole point of the standard approach to ratifying human rights treaties has been to bring treaty language into conformity with existing U.S. (state as well as federal) law. That effort in turn, requires an assessment of existing U.S. law at the time of ratification. What would this assess-ment have looked like to the Senate in 1992?

Before we can answer this question, it is important to determine what kind of as-sessment the Senate might realistically be expected to have engaged in. One might, for example, attribute a high degree of comprehensiveness to the Senate’s review of existing legislation. And there were, as of 1992, some statutes on the books inconsistent with the reading of the ICCPR and conditions that I have advanced here. Neither prosecutorial discretion nor statutory exclusion statutes were unknown in 1992. As noted earlier, some states – reacting to Kent amidst a turn to toughness on crime in the late 1960s and early 1970s – had enacted such statutes, with fairly limited scope. Congress itself, legislating for the District of Columbia, enacted a statute in 1970 providing for statutory exclusion of juvenile defendants charged with murder or four other offenses.108

One might take the position that, while the plain language of the package of con-ditions may indicate otherwise, the Senate could not have intended to cast doubt on any statutes that existed in 1992 – even statutes that formed exceptions to the general treat-ment of juvenile defendants at that time. The whole point of the standard approach is to bring the treaty into conformity with existing legislation. The most robust version of this 107 Cf. Medellín v. Texas, 552 U.S. at 506-07 (“The interpretation of a treaty, like the inter-pretation of a statute, begins with its text. . . . Because a treaty ratified by the United States is ‘an agreement among sovereign powers,’ we have also considered as ‘aids to its interpreta-tion’ the negotiation and drafting history of the treaty as well as ‘the postratification under-standing” of signatory nations.’). 108 See United States v. Bland, 472 F.2d 1329, 1330 (D.C. Cir. 1972).



approach would draw no distinction between state or federal statutes. In this version, one would have to conclude that nothing in the treaty, as modified by the package of condi-tions, precludes dispensing with an individualized judicial determination. A slightly less robust approach would assume that the Senate would be particularly aware of federal leg-islation, and conclude that statutory exclusion approaches are compatible with the treaty as modified by the package of conditions.

The defect in the first approach – relying simply on the plain language of the con-ditions – is that it seemingly requires us to ignore an important aspect of what the stan-dard approach is all about: conforming treaty language to current domestic law. The de-fect in the second approach – rejecting any interpretation of the conditions that might cast doubt on any statute on the books in 1992 – is that it leaves one wondering why the Sen-ate would adopt language that so strongly suggests an individualized judicial determina-tion. The Senate, after all, could always have adopted a reservation simply providing that U.S. adherence to Articles 10 and 14 was subject to existing state and federal laws re-garding the trial of juveniles as adults. For example, in 2002, the Senate Foreign Rela-tions Committee approved a reservation to Articles 2, 3, and 5 of CEDAW rejecting “any obligation under the Convention to enact legislation or take any other action with respect to private conduct except as mandated by the Constitution and laws of the United States.”109 But in approving the ICCPR, rather than simply exempt all existing laws re-garding the trial of juveniles as adults from the reach of the treaty, the Senate carved out a substantive standard that reflected the then-predominant approach in U.S. law, which was one of individualized judicial determinations.

The best resolution of these twin defects is to acknowledge the potential for a lim-ited degree of uncertainty about the Senate’s intentions. There is no definitive way to resolve whether the Senate thought that some limited departures from the predominant model of dealing with the trial of juveniles as adults were consistent with the language it adopted – or instead believed instead that any inconsistencies with that language were sufficiently limited in scope and importance as to cast no doubt on the United States’ substantial (not perfect) compliance with the treaty as modified by the conditions. All that can be said is that the Senate was sufficiently satisfied with the congruence between treaty law and domestic law to approve a non-self-execution declaration that would pre-clude judicial challenges to the statutes in existence at the time, leaving such statutes in place. What is a more pressing question is whether it makes sense to assume that the Senate meant to go beyond that, and exclude from judicial scrutiny all statutes that might be enacted in the future – even if they departed greatly from the approach predominant in 1992, and transformed the landscape (as in fact happened with the great expansion of ex-ceptions to the judicial model of waiver). That is the question to which we now turn.

109 Senate Exec. Rep. 107-9, Convention on the Elimination of All Forms of Discrimination Against Women, Sept. 6, 2002, at 11 (emphasis added), http://bulk.resource.org/gpo.gov/reports/107/er009.107.txt. It is clear from the accompany-ing report that the Committee was not simply concerned with avoiding placing the U.S. in a position where conforming to constitutional limits would mean violating its treaty obliga-tions. It meant to preserve current aspects of statutes – it cited Title VII’s exemption of em-ployers with fewer than 15 employees as one example – that might conflict with CEDAW.



Part III. Invoking the Protections of the ICCPR in Court A. The Importance of Judicial Enforceability

As noted earlier, the practical significance of any interpretation of the ICCPR is likely to be limited so long as the non-self-execution declaration is read to preclude any enforcement of the treaty in domestic courts. Granted, the declaration would not matter if the ICCPR or other human rights treaties would be non-self-executing in the absence of the declaration. There are two factors that might suggest such a conclusion.

As noted earlier, Medellín’s approach to determining whether a treaty is self-executing suggests that there is a real question, at the very least, whether the Court would find the human rights treaties the U.S. has ratified to be self-executing in the absence of the Senate’s declaration. A second factor is the State Department’s assertion, when the ICCPR was submitted to the Senate, that the ICCPR was non-self-executing, and that the proposed declaration to that effect would simply clarify the point.110

The most reasonable conclusion, however, is that the obligations in the human right treaties the U.S. has ratified would typically be self-executing in the absence of Senate declarations to the contrary, at least for purposes other than criminal liability.111 To be sure, the treaties do not by their terms require judicial enforcement of all the rights they recognize. And there is also language in each of the treaties that speaks to other branches of the government as well. For example, in Article 2(2) of the ICCPR, each state party promises to “take the necessary steps . . . to adopt such legislative or other measures as may be necessary” to implement the treaty.

Still, foreclosing any possibility of judicial enforcement of the treaties hardly seems consistent with their central purpose. Two basic factors point to self-executing status for the substantive provisions of the treaties the U.S. has ratified. One is the nature of the substantive provisions in the treaties. One of their key purposes is to provide pro-tections to individuals against their own governments. The rights recognized by these

110 [cite]. 111 Some human rights treaties provide for individual criminal liability. For example, Article 4 of the Convention Against Torture requires each state party to “ensure that all acts of tor-ture are offences under its criminal law.” A state party might fulfill this obligation by mak-ing the CAT self-executing. Under the U.S. constitution, however, domestic criminal law obligations can be created only by statute. See RESTATEMENT, supra note 2, § 111(c) (treaty not self-executing “if implementing legislation is constitutionally required”); id. comment (i) and Reporter’s Note 6. It is also worth noting that framing the issue in terms of whether “a treaty” is self-executing is not entirely accurate. As the Restatement notes, “[s]ome provisions of an inter-national agreement may be self-executing and others non-self-executing.” Id. comment (h). Cf. ABA/ASIL Treaty Report, supra note 38, at 19 (proposing that, in transmitting treaty to Senate, the President indicate, provision by provision, the recommended status as self-executing or not). Indeed, a particular treaty provision might be self-executing in some re-spects and non-self-executing in other respects. That said, most of the substantive provisions of the ICCPR (in Part II) would likely be enforceable in court were it not for the Senate’s declaration.



treaties are, for the most part, rights of the sort that courts routinely protect.112 And the treaties themselves uniformly recognize the key role of courts in protecting rights.

The other factor is that one of the strongest reasons for not declaring a treaty self-executing is absent here. As the Medellín Court noted, in some instances a judgment may need to be made to act inconsistently with a treaty. Responding to a determination by an international tribunal that the U.S. has violated a treaty obligation might be one such in-stance. Medellín was frank in acknowledging that the U.S. might sometimes choose to act inconsistently with its international law obligations.113 Those judgments might best be left to the political branches. If the U.S. were to accept the competence of the various human rights treaty bodies to hear individual complaints – which it has not – and if those treaty bodies could render legally binding judgments – which, typically, they cannot – one might foresee a similar argument for declining to treat the judgments of those bodies (or rather, the treaty provision governing the obligation to respect those judgments) as self-executing. But it is hard to see how any of these concerns might justify reading the ICCPR itself to be unenforceable in U.S. courts. The idea that the U.S. would want to retain discretion to negotiate with other countries as to how it treats its own citizens is not plausible. Accordingly, it does appear that the Senate’s declaration of non-self-execution makes a real difference to the enforceability of the ICCPR in U.S. courts.

Given the validity of the declaration of non-self-execution, is there any room for a judicial role in enforcing the ICCPR’s obligations? Some commentators have put forth a number of ways that the Senate’s declaration could be read more narrowly or even set aside. In theory, one might argue that the declarations of non-self-execution are invalid under international law, and thus without effect in domestic court.114 International law does forbid reservations that are incompatible with the object and purpose of a treaty. While international law does not require states to make treaties self-executing, it is possi-

112 The Covenant on Economic, Social and Cultural Rights might appear to be an exception. Even this treaty, however, contains provisions that would be as suitable for judicial enforce-ment as any provision of the ICCPR. 113 See, e.g., Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 602 (1889) (“The question whether our government is justified in disregarding its engage-ments with another nation is not one for the determination of the courts”). 114 Cf. Henkin, supra note 9, at 343 (“Reservations designed to reject any obligation to rise above existing law and practice are of dubious propriety: if states generally entered such res-ervations, the convention would be futile. The object and purpose of the human rights con-ventions, it would seem, are to promote respect for human rights by having countries – mutu-ally – assume legal obligations to respect and ensure recognized rights in accordance with international standards. Even friends of the United States have objected that its reservations are incompatible with that object and purpose and are therefore invalid.”). See also Stefan A. Riesenfeld & Frederick M. Abbott, The Scope of U.S. Senate Control over the Conclusion and Operation of Treaties, 67 CHI.-KENT L. REV. 571 1991); Stefan A. Riesenfeld, The Doc-trine of Self-Executing Treaties and GATT: A Notable German Judgment, 65 AM. J. INT’L L. 548, 550 (1970); Stefan A. Riesenfeld, The Doctrine of Self-Executing Treaties and U.S. Postal: Win at Any Price?, 74 AM. J. INT’L L. 892, 896 (1980). [As of 1995 – at least 10 states had objected to one or more RUDs. Henkin, supra note 1, at 343 n.11. [update. ALSO – cite comment by committee (at 343 n.11).]



ble that the entire package of conditions might be invalid on the ground that rendering the treaty without domestic effect is inconsistent with the object and purpose of a treaty de-signed to protect individual rights, including the right to a remedy for violations of the treaty rights. Even were that so – and it is hardly a foregone conclusion – the question of the validity of those conditions in domestic law is distinct. It is hard to imagine a court setting aside the express statement of the President and the Senate about the domestic ef-fect of the treaty on the basis of an international law argument that is far from open and shut.

Alternatively, declarations of non-self-execution might be held apply in federal but not state courts. It might be possible to view the issue of non-self-execution as relat-ing less to whether substantive rights are created and more to whether courts have juris-diction to apply the treaty in question. If one views non-self-execution this way, then the scope of Article III becomes crucial. Article III, which gives Congress the power to regulate the jurisdiction of the courts, does so only with respect to federal courts. Con-gress, by this view, has the power to put adjudication of claims based on treaties beyond the federal courts’ jurisdiction, but lacks any basis for doing so with regard to state courts. 115

Finally, another distinction might turn on whether the treaty is used as a shield rather than a sword. For example, the declaration might not apply when a defendant in a criminal case asserts that the prosecution violates a right protected by one of the human rights treaties the U.S. has ratified. Regarding such a treaty as not creating an affirma-tive right on the part of plaintiffs to go to court to seek judicial relief is one thing. But if the government asks a court to permit a criminal prosecution that violates a treaty, then it is asking the court to play a role in executive conduct that is inconsistent with the su-preme law of the land. 116

The Supreme Court’s recent grant of certiorari in Bond v. United States is particu-larly relevant to this argument. The Court will review – and one suspects, reverse – the Third Circuit’s holding that a criminal defendant prosecuted under a federal statute en-acted to implement U.S. treaty obligations lacked standing to assert that the statute vio-lated the Tenth Amendment.117 The Third Circuit relied on Tennessee Electric Power Co. v. Tennessee Valley Authority, in which the Court held that private electricity compa-nies lacked standing to assert that the Tennessee Valley Authority Act violated the Tenth Amendment.118

115 One might imagine other similar approaches as well. Justice Thomas’s view that “States have unfettered authority to determine whether their local courts may entertain a federal cause of action” fell only one vote short of a majority in Haywood v. Drown, 129 S. Ct. 2108, 2118, 2122 (2009) (Thomas, J., dissenting). 116 See Sloss, supra note 15. 117 United States v. Bond, 581 F.3d 128, 132-33 (3d Cir. 2009), cert. granted, 78 U.S.L.W. 3629 (No. 09-1227 Oct. 12, 2010). 118 306 U.S. 118, 144 (1939).



Whether all of Tennessee Electric Power survives New York v. United States is open question.119 In any event, the connection between the interests of the private electric companies in avoiding competition bore little connection to the claimed violation of the Tenth Amendment.120 In contrast, a defendant who claims that her prosecution is based on a statute that exceeds the federal government’s constitutional power has a very direct stake in resolution of the issue. To bar her from raising the Tenth Amendment issue would seem inconsistent with the idea that the Tenth Amendment is, after all, law. One might draw the same conclusion about treaties; barring defendants from raising defenses to criminal prosecutions based on any treaty, self-executing or not, seems inconsistent with Article VI, which makes treaties the supreme law of the land along with federal stat-utes.

Nevertheless, courts have read the Senate’s declaration quite broadly, typically with little analysis. Courts have regularly dismissed treaty-based arguments with curt observations that the Senate declared the ICCPR to be non-self-executing.121 What might seem the strongest argument – the distinction between raising a shield to prosecution in-consistent with a treaty and invoking a treaty as a basis for an affirmative claim – has not been accepted. Indeed, the language of Medellín gives no indication that the Supreme Court would draw this distinction.122

As noted, one could imagine a holding in Bond v. United States providing some analogous support to the distinction in the treaty context, but it is far from clear that the effort would succeed. One particular reason for skepticism is that Medellín comes close to stripping non-self-executing treaties of any true character as domestic law.123 In Medellín, the Court decided that the President’s Memorandum requiring review of the claims of Mexican nationals that their treaty rights had been violated fell into the third category of Justice Jackson’s tripartite schema. The first category of that schema en-compasses executive action taken with Congressional authorization; the second, execu-tive action taken in the absence of any Congressional action; and third, executive action

119 Tennessee Electric Power emphasized that the states had no objection to the operation of the TVA. Id. at 144. To the extent that this amounts to a “waiver” of Tenth Amendment claims, it would appear inconsistent with the Court’s rejection of such a waiver in New York v. United States. 120 The power companies’ claim was that by selling power in competition with state-regulated private companies, and by selling power to the private companies with restrictions on the price at which they could resell the electricity, the TVA would undermine states’ power to regulate rates. 306 U.S. at 143. 121 122 See ABA/ASIL Treaty Report, supra note 38, at 11 (noting that the Court “implicitly re-jected the argument that had been made by some academic commentators that deeming a treaty non-self-executing merely means that it fails to provide a private right of action so that it can be enforced by courts when such a cause of action is not necessary, such as when a treaty is invoked defensively in a criminal case or when a statute, like 42 U.S.C. § 1983, pro-vides for a general cause of action”). See also Curtis A. Bradley, Intent, Presumptions, and Non-Self-Executing Treaties, 102 AM. J. INT’L L. 540, 547-48 (2008). 123 See ABA/ASIL Treaty Report, supra note 38, at 11-12 (noting ambiguity of Court’s opin-ion in this respect).



taken in conflict with Congress’s will. The president’s authority is at its peak in the first, and at its weakest in the third.124 Executive action to implement a treaty approved by the Senate might seem to fall within the first category. But, reading the declaration of non-self-execution as an affirmative statement on the Senate’s part that the treaty “is not to have domestic effect of its own force,”125 the Court treated it as falling within the third. This approach to a non-self-executing treaty comes very close to regarding it as simply not domestic law at all.126

The courts’ treatment of the issue of self-execution might be justified as resting on respect for democracy. Members of the judiciary are either unelected or largely insu-lated from direct political accountability. Treaty bodies like the Human Rights Commit-tee – charged with overseeing implementation of the ICCPR – are neither democratically elected nor accountable to any one state’s people. Like constitutions, human rights trea-ties typically include many broadly phrased provisions, potentially giving bodies charged with their interpretation significant power. This concern could be amplified by the possi-bility that domestic courts might, in directly implementing broad human rights treaty provisions, give great weight to the particular interpretations that treaty bodies give to those broad provisions.127

Still, concerns about a democratic deficit are themselves vulnerable to criticism. Taken as a whole, the language in human rights treaties is no broader than that of the constitution. We live with judicial rulings based on the constitution – rulings that can be overturned only by the cumbersome process of constitutional amendment. It is hard to see how democracy would be any more undermined by judicial rulings based on a treaty – rulings that could be overturned by statute. Similarly, the concerns about unaccount-able courts following decisions by unelected, obscure treaty bodies seem exaggerated. Even if the ICCPR were self-executing, U.S. courts would have no obligation to agree with the views expressed by the Human Rights Committee on the interpretation of the treaty.128

The other concerns about democracy also seem beside the point. A worry about precluding more democratic means of giving specific content to broad treaty-based norms assumes that there is some democratic debate and deliberation to displace. Yet in ratify-

124 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-638 (Jackson, J., concur-ring). 125 Medellín, 552 U.S. at 527. 126 See Carlos Manuel Vásquez, Less Than Zero?, 102 AM. J. INT’L L. 563, 569-70 (2008). 127 Cf. Melish, supra note 28, at 441 (“Widely employed by democracies around the world to ensure democratic deliberation around the meaning of broadly worded treaty norms, . . . dec-larations [of non-self-execution assert that ratified treaty norms do not create private causes of action for direct enforcement by the domestic judiciary”). 128 Cf. Laurence R. Helfer and Alice M. Miller, Sexual Orientation and Human Rights: To-ward a United States and Transnational Jurisprudence, 9 HARV. HUM. RTS. J. 61, 82 (1996) (noting that “a U.S. court considering a Covenant-based challenge to state sodomy statutes is not compelled to follow the Committee’s views and can advance a different interpretation of the treaty”).



ing these treaties, the Senate has stated that no implementing legislation is contemplated – that is, that no such debate is contemplated.

B. The Relationship Between the Content of the Reservations and Understandings and the Declaration of Non-Self-Execution

However hard to justify, the courts’ refusal to entertain limiting interpretations of the declaration of non-self-execution is daunting.129 Given these obstacles, is there any prospect of a success in seeking to enforce rights under the ICCPR? The Supreme Court’s renewed emphasis on federalism – often, and not unreasonably, viewed as a po-tential obstacle to U.S. fulfillment of its international law obligations – might provide one possible route to judicial enforcement of its obligations. The argument here is specifi-cally tailored to the issue of trying juvenile defendants as adults, but it could well have broader implications.

Key to understanding this approach is regarding the set of standard conditions as more than a group of provisions that happen to be attached to a treaty’s ratification. It is easy, for example, to view the question of how to interpret the treaty in light of the Sen-ate’s reservations and understandings as separate and apart from the question of whether the treaty obligations are self-executing, and to regard both as separate from the declara-tion on implementation consistent with federalism. But the issues look very different if we regard – as we should – the various conditions as part of a unified package adopted pursuant to a consistent and thought-out practice.

In the case of trying juveniles as adults, one implication of this approach is that the proper understanding of the substance of US obligations under the ICCPR has special meaning for the proper interpretation of the declaration of non-self-execution. The con-nection makes it appropriate to consider the temporal problem – the fact that the great wave of “get tough on juvenile crime” statutes came after the US ratified the ICCPR – in interpreting the scope of the declaration of non-self-execution. And it points to a conclu-sion that the declaration should be interpreted not to apply to state statutes enacted after the US became a party to the treaty.

In addition to the support provided by the temporal problem, the Senate’s own declaration regarding federalism provides crucial support for interpreting the declaration of non-self-execution not to apply to post-ratification state statutes.

1. The Temporal Problem

Consider the most sympathetic argument for the standard approach to ratifying human rights treaties. According to this argument, U.S. law already adequately protects whatever rights the treaty at issue covers. The constitution itself forms the centerpiece of this argument, though the wide range of statutory and other non-constitutional protections of human rights is important as well.

129 Cf. Jackson, supra note 39, at 329 (“It seems safe to conclude that the U.S. constitutional practice and status is that the treaty-making officials, as a unilateral matter, will control the determination of ‘self-executing’ in the domestic legal system.”)



Closely related to this assertion is the premise that where U.S. law does differ from international human rights law, the former strikes a better balance.130 And because the U.S. takes its international obligations seriously, where there are differences between U.S. law and the treaty being ratified, the U.S. should take care not to take on any treaty obligation in that regard. Thus, for example, the U.S. took a reservation to Article 4 Convention on the Elimination of All Forms of Racial Discrimination providing that it would not take on any obligations under the treaty that would restrict rights protected by the U.S. Constitution.131

Given the congruence of the treaty and U.S. domestic law (thanks to extensive reservations, understandings, and declarations), there simply is no need for domestic ju-dicial enforcement. The Restatement notes, for example, that while a state is generally obligated to enact implementing legislation if the treaty does not apply domestically of its own force, that obligation does not apply where existing domestic law is “fully adequate to give effect” to the treaty.132 Finally, if for some reason any further implementing ef-forts are needed, they are best left to the political branches rather than the courts, given that treaties involve foreign affairs matters that may not be best handled by judges.

There are, however, problems with this sympathetic account of the standard ap-proach. The foreign policy concerns seem inapposite in the context of human rights trea-ties, which focus primarily on domestic matters. Controversial judicial interpretations of

130 The plausibility of the assertion that U.S. law strikes a better balance in particular cases varies, depending on the difference. One might, for example, come to one conclusion about which strikes the better balance in dealing with Article 4 of the Convention on the Elimina-tion of All Forms of Racial Discrimination requires states to suppress racist propaganda that might fall within the First Amendment’s protections – and a different conclusion in dealing with the how the U.S. criminal justice system deals with juvenile offenders. 131 See [cite]:

(1) That the Constitution and laws of the United States contain extensive protections of individual freedom of speech, expression and association. Accordingly, the United States does not accept any obligation under this Convention, in particular under Arti-cles 4 and 7, to restrict those rights, through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States.

Similarly, in ratifying the Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277, on November 25, 1988, and the CAT, the U.S. was careful not to take the final step in acceding to the treaties – the deposit-ing the instruments of ratification with the U.N. – until it had enacted the required legislation, ensuring that it was at all times in conformity with its treaty obligations. 132 RESTATEMENT, supra note 2, § 111, comment (h). See also ABA/ASIL Treaty Report, supra note 38, at 10 n.49 (“[T]he Executive and Senate have often consented to treaties on the assumption that prior law can also suffice as a treaty’s implementing legislation.”). Cf. JACK L. GOLDSMITH & ERIC POSNER, THE LIMITS OF INTERNATIONAL LAW 128 (2005) (liberal democracies find the cost of ratifying the ICCPR small “because, after RUDs, they can com-ply simply by following their prior domestic practices”).



a human rights treaty are unlikely to foment a foreign relations crisis.133 Indeed, as the controversy over Guantánamo has shown, what are far more likely to create foreign rela-tions problems are significant violations of basic human rights (such as the right to be free from torture). And any effort to limit judicial enforcement of treaty based rights is likely to make the matter even more controversial.

Moreover, precisely because the attachment of extensive conditions largely elimi-nate any difference between U.S. law and the treaty obligations being taken on, it is diffi-cult to see what is gained by barring the courts from entertaining treaty-based claims. The closest to an explanation the U.S. has offered is the potential “confusion” of having two rights regimes adjudicated by the courts – one constitutional, the other treaty-based.134 But this explanation is particularly striking in a federal state like the U.S. Courts already deal with two regimes that are similar, but not identical: state and federal constitutional law. There is no reason to think that they could not handle claims based on a international human rights treaties as well.

What most strains credibility, however, is the implicit claim that, once the U.S. has ratified the treaty, there could never be state legislation inconsistent with it. This claim is very much implicit in the combination of non-self-execution with the near-complete absence of any implementing legislation over a long period.

The credibility problem is not a matter of belief or disbelief in the government’s intentions or good faith. It is built into the structure of a federal system. As noted ear-lier, the Senate could at most review existing federal and state legislation and approve appropriate reservations to ensure that there would be no conflict between existing do-mestic law and the new treaty obligations. How could the Senate be sure that future leg-islation would pose no problem? Given the Senate’s commitment to the treaty, it might assume that it would block any future proposed federal legislation inconsistent with it. In this context, simultaneously declaring the treaty to be non-self-executing and stating that no implementing legislation was intended would be consistent with each other.135

133 See Note, The Charming Betsy Canon, Separation of Powers, and Customary Interna-tional Law, 121 HARV. L. REV. 1215, 1230-31 (2008). Cf. Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004) (“It is one thing for American courts to enforce constitutional limits on our own State and Federal Governments’ power, but quite another to consider suits under rules that would go so far as to claim a limit on the power of foreign governments over their own citizens, and to hold that a foreign government or its agent has transgressed those lim-its.”). 134 [Footnote on State Department’s concern about potential “confusion” of two regimes.] 135 Of course, this assumption does not capture the reality of much legislation – that it ema-nates from the executive branch in the form of rule-making. Congress does have oversight of rule-making, but the Senate could not expect that it would, by itself, overturn any future ad-ministrative regulations that might conflict with the treaty. As noted earlier, though, see note 8 supra, what ultimately counts is not simply the Senate’s intent, but the intent of the political branches – including the President – responsible for the ratification of the treaty. Or, to put it another way, the Senate might reasonably expect that the President, charged with carrying out U.S. policy, would not lightly advance federal regulations that conflict with the treaty.



The assumption of the Senate as guardian against future treaty violations breaks down entirely in the case of state legislation, though. Even if one believes that the Senate was committed for the future to approve no federal legislation that it believed would be inconsistent with the ICCPR, it obviously was in no position to make such a judgment or commitment as to what state legislatures might do in the future.

There are two grounds for this conclusion. One is that the Senate does not have any supervisory power over state legislation. Of course, Congress as a whole has the power to preempt state statutes – that power lies in its authority to enact legislation to im-plement a treaty, which Article VI of the Constitution makes the supreme law of the land.136 But that power lies in the legislative process as a whole, not the Senate (or the Senate and the President). The Senate alone (or the President) can block proposed federal legislation, but it cannot bring about the enactment of federal legislation without the con-currence of the House.

The other is that even if one took the view that the Senate could expect the House and the President to go along with its views on compatibility with the treaty, it is entirely unrealistic to expect Congress and the President to take on a general, continuing function of reviewing state legislation for consistency with a treaty. Congress cannot carry out this function when it comes to something even more likely to be viewed as pressing – namely, the consistency of state legislation with the constitution and federal law. That Congress has the power to enact legislation preempting state laws inconsistent with the constitution or federal law does not mean that it has the practical capacity to keep watch over them and enact corrective legislation. That is why, for example, judicial enforce-ment of the dormant commerce clause is so important.137

Thus, in giving its consent to ratification of the ICCPR, the Senate could realisti-cally set itself up as a guardian against future federal legislation inconsistent with the treaty, but not against any such future state legislation. In turn, this means that the most sensible way to reconcile the declaration of non-self-execution with the statement that no implementing legislation was planned is that the declaration was not intended to apply to post-ratification state statutes.

Indeed, this reading is supported by the Senate’s declaration that “to the extent that state and local governments exercise jurisdiction over such matters, the Federal Gov-ernment shall take measures appropriate to the Federal system to the end that the compe-tent authorities of the state or local governments may take appropriate measures for the 136 This assumes that there are no federalism-based limits on Congress’s power to enact im-plementing legislation. But even if there were, there would still be no temporal problem. Any federalism-based limits on Congress’s power to enact implementing legislation for a treaty would presumably be the same as limits on the federal government’s power to impose treaty-based obligations on states through a self-executing treaty. 137 See Duckworth v. Arkansas, 314 U.S. 390, 400 (1941) (Jackson, J., concurring in the re-sult) (noting the “sluggishness of government, the multitude of matters that clamor for atten-tion, and the relative ease with which men are persuaded to postpone troublesome decisions” as reasons for vigorous judicial enforcement of the dormant commerce clause); id. at 401 (re-jecting approach of “allow[ing] the states to establish the restraints and let commerce struggle for Congressional action to make it free”).



fulfillment of the Covenant.” Taking this declaration at its word, the courts should read the declaration of non-self-execution to permit state and local governments (including state courts) to take “appropriate measures for the fulfillment of the Covenant” where an inconsistency arises after its ratification.

Finally, it is worth emphasizing that what is at stake here is an interpretation of the Senate’s intent, not the power of the Senate to set itself up as the guardian against in-consistent state legislation. Returning to the analogy with the commerce clause, nothing in the practice of judicial enforcement of the dormant commerce clause strips Congress of its power to regulate commerce. It takes no more than passage of a federal statute to overturn any judicial invalidation of a state law under the dormant commerce clause. In-deed, if Congress so chooses, it can authorize state discrimination against interstate commerce in a specified areas. If subsequent state legislation proves more of a burden on interstate commerce than anticipated, Congress can always withdraw or modify its con-sent.

So, too, would it be within the Senate’s power with respect to future treaties to state that the declaration of non-self-execution would apply to challenges to all statutes, state or federal, regardless of the time of their enactment. And reading the non-self-execution declaration to the ICCPR not to apply to post-ratification state statutes would leave Congress free to approve a federal statute overturning any judicial invalidation of a state law on the ground of incompatibility with the ICCPR. Congress could even exempt whole areas (such as criminal justice) from treaty-based judicial scrutiny and take on the task of monitoring state laws. The question with regard to the ICCPR is not whether the Senate could take on such a function with respect to the treaty as a whole – it could – but whether it makes sense to conclude that it did.

Interpreting the declaration of non-self-execution not to apply to post-ratification state statutes would mean that a large number of the state laws providing for juveniles to be tried as adults without a prior judicial determination would be subject to a significant ICCPR-based challenge in court. As a general matter, the distinction between pre- and post-ratification state statutes makes sense in light of the standard approach to ratifying treaties. The declaration of non-self-execution was part and parcel of a standard ap-proach that involved tailoring the obligations of the treaty to match then-existing U.S. law. As noted earlier, the great wave of state statutes permitting trial of juvenile defen-dants as adults without a prior judicial determination came after the ICCPR was ratified.

There is no gainsaying, however, that this approach lacks a certain neatness. As noted earlier, there were instances of state laws that would appear to have permitted trial of juveniles as adults without a prior judicial determination even before 1992. This fact might lead to two different objections to the argument advanced here.

One is that it produces a practical anomaly: a statute in one state might be subject to challenge in court (if enacted after 1992), while a similar statute enacted before ratifi-cation would not. The other objection, discussed earlier,138 is that the existence of stat-utes permitting trial as an adult without prior judicial approval in a relatively limited

138 See p. 27 supra.



range of cases implies that the Senate must have thought such an approach is consistent with the ICCPR, in which case the whole case for a temporal problem disappears.

Neither of these objections undermines my argument, though. Neatness is desir-able but not decisive.139 The important point to see is that at best, these objections pro-vide grounds for criticizing the standard approach itself – but not for working out the most sensible way to interpret it when the Senate does employ it.

The Senate’s practice of tailoring human rights treaty obligations to current do-mestic law is a sensible one, if one assumes that the treaties have nothing to add to the protection of rights under current domestic law. Under the standard approach to ratifying human rights treaties, the review of domestic law that needs to be made must necessarily be comprehensive and careful. To be more demanding – to insist that such a review reach a level of perfection that encompasses every possible instance of a state or federal statute or regulation that might be implicated by a human rights treaty – is not realistic. In short, the Senate might reasonably proceed on the assumption that, acting on the basis of a comprehensive and careful review, it has achieved its basic purpose in eliminating any major inconsistency between the treaty and domestic law. That was the case with respect to the trial of juvenile defendants as adults, when the Senate clarified that, consis-tent with the largely predominant practice at the time, it specified that a prior individual-ized judicial determination was needed.

That such a review might leave a relatively small number of instances of conflict between the treaty and domestic law is undeniable. It would not constitute a shocking disrespect for international law if the Senate were to conclude that that prospect did not justify making the treaty self-executing as to existing law. Reading the Senate’s intent as directed to precluding judicial action on pre-ratification treaties is therefore reasonable; what counts is that the Senate believed it had brought the treaty and existing domestic law into substantial conformity, obviating the need for courts to entertain claims or de-fenses based on the treaty. In contrast, in the absence of a clear indication to this effect, it would not be a reasonable reading of the Senate’s intent engage in a major disrespect for the United States’ international treaty obligations. Yet precisely that would result if the Senate were understood to have left the courts powerless to address a mass of later state statutes that moved well away from the individualized approach that predominated in 1992, while proclaiming – as the Senate did – that no implementing legislation was con-templated, and following up on that statement with nearly two decades of non-action on implementation.

2. Federalism

While the temporal problem is key, there is a more general federalism issue as well – one that does not depend so critically on the temporal problem, though it can inter-sect it at points. The scope of international human rights law overlaps strongly with that

139 Cf. Curtis A. Bradley & Jack L. Goldsmith, Federal Courts and the Incorporation of In-ternational Law, 111 HARV. L. REV. 2260, 2270 (1998) (“the existence of shades of gray does not detract from the fact that much is black and white”) (regarding the question whether political branches have approved incorporation of customary international law in particular cases).



of matters traditionally thought to be handled by states.140 The ICCPR could thus have significant implications for the regulatory authority of state governments – though, it must be said, no more so than do the rights-protecting provisions of the U.S. constitution itself.

In this context, the revival of judicial enforcement of federalism since Lopez141 could pose a wide range of potential barriers to fulfillment of U.S. treaty obligations. Conceivably, the scope of the treaty power could be constrained by the same limits the Court has found to apply in the case of the commerce clause; the federal government’s power to force states to act in compliance with treaty obligations might be limited by the anti-commandeering principles of New York v. United States142 and Printz v. United States;143 and state sovereign immunity might pose a barrier to enforcement of treaty ob-ligations.144

The Senate’s adoption of an interpretative declaration on federalism might be thought to reflect a concern for federalism complementing – even anticipating – the Su-preme Court’s revival of judicially enforced federalism.145 The separate declaration that the treaty is non-self-executing could also be viewed as a complement to this concern for federalism: By one argument, making human rights treaties directly enforceable in courts would too easily upset the balance between state and federal power in favor of the lat-ter.146

The concern over federalism is real. But if read as timeless, the declaration of non-self-execution is especially odd in this context. Indeed, it is the fundamental incon-sistency of that declaration with federalism that is so striking. The inconsistency here is not with substantive limits on the scope of the federal government’s powers. Rather, it is structural: Read as timeless, the Senate’s declaration of non-self-execution constitutes an intervention in a separation of powers matter between state courts and state legislatures. This intervention is evident in the following examples.

Suppose a juvenile defendant asked a state court to hold a state direct transfer statute invalid as applied to him because it was inconsistent with the ICCPR. By the pre-dominant reading of the non-self-execution declaration, the court would lack any basis for doing so. It might, in theory, find for the defendant on the basis of a federal or state constitutional claim or a federal statute, interpreting the constitution or statute in a way that made it consistent with the ICCPR. But it could not simply hold for the defendant on the basis of the ICCPR.

140 For a useful discussion of the federalism implications of this trend in the context of cus-tomary international law, see Curtis A. Bradley & Jack L. Goldsmith, supra note 27, at 840-41, 846-47, 861-70. 141 United States v. Lopez, 514 U.S. 549 (1995). 142 505 U.S. 144 (1992). 143 521 U.S. 98 (1997). 144 For a useful discussion of these problems, see Swaine, supra note 7, at 415-41. 145 See text accompanying note 18 supra. 146 There is, however, something odd in an argument that the courts will not adequately pro-tect states’ role in a federal system, given the Supreme Court’s own attention to the issue.



Suppose, instead, that a state legislature repealed a direct transfer statute and re-quired an individualized judicial hearing before a juvenile charged with a crime could be transferred to adult court. Obviously, state courts would now follow the new statute – unless the new statute were invalid. Could there be a federalism-based objection to it? Certainly, state statutes that have been found to interfere with the federal government’s ability to carry out its foreign policy obligations have been invalidated on preemption grounds. Massachusetts’ attempt to extend the boycott on Burma is one example.

Conceivably, one could treat a state statute regarding direct transfer the same way. Since the matter of how juvenile offenders are tried is now a matter of the United States’ treaty obligations, state legislation should be regarded with suspicion and examined closely for potential interference with the foreign policy powers of the federal govern-ment. To do so, however, would be to regard the very ratification of the ICCPR as a de-termination that all matters relating to it were now peculiarly concerns of the federal gov-ernment (at least until the latter expressly permitted the states to legislate). This approach would read the ratification of the ICCPR as a massive shift in favor of federal power – hardly the Senate’s intention in ratifying the treaty. It is hard, then, to imagine that such a statute would be preempted.

Suppose, alternatively, that the state legislature included a preamble in the statute repealing the direct transfer provisions, to the effect that it was being approved in order to implement U.S. obligations under the ICCPR. It is hard to see how the addition of this motivation could now transform a statute that would otherwise be within the state’s pow-ers into one that interfered with the powers of the federal government.

Finally, if state legislation implementing the ICCPR in a particular respect would be constitutional, it is hard to see why a state statute generally declaring the ICCPR to be self-executing in that state’s courts would suffer from any constitutional infirmity. One might imagine a state statute providing that the ICCPR or other human rights treaties to which the U.S. is a party will be self-executing in state courts to the extent that the courts find it appropriate.147

It might be objected that such a statute interfered with the federal government’s power to manage foreign relations. It is the federal government, not state governments, that decides whether to enter into a treaty, and it is the federal government that needs to decide how it is to be implemented.

That is clearly the case with some, more outward-looking treaties. In Zschernig v. Miller,148 for example, the Supreme Court held that an Oregon statute limiting a for-eigner’s inheritance rights was preempted by the federal government’s foreign affairs au-thority.149 But human rights treaties for the most part deal with a nation’s treatment of its

147 Cf. Medellín v. Texas, 552 U.S. at 533, 536 (responsibility to implement “the ICJ's deci-sion falls on each of the States as well as the Federal Government”) (Stevens, J., concurring in the judgment). 148 389 U.S. 429 (1968). 149 Cf. Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) (federal statute re-garding sanctions on Burma preempts Massachusetts statute on sanctions, because the latter undermined the carefully tailored scheme Congress had adopted).



own nationals. It is hard to see how a U.S. state’s decision to make the ICCPR self-executing as applied to its own statutes would interfere with the conduct of foreign rela-tions.150 The Senate, in fact, indicated that it saw no such problem when it approved rati-fication of the ICCPR. How else could one make sense of the federalism declaration ex-cept as a statement that the federal government does not need full control over the im-plementation of the ICCPR?

What this hypothetical does not address, it should be noted, is the jurisdiction of the federal courts to enforce the ICCPR against states that declared it self-executing. Whether a state implementing statute could vest power in federal courts to consider the consistency of that state’s laws with the ICCPR is an interesting question. If one regards questions of Senate control over self-execution as a matter of control of judicial jurisdic-tion, then it could not. State legislatures do not control federal court jurisdiction. But this argument proves too much. If the question of self-execution were essentially a mat-ter of determining the courts’ jurisdiction, on what basis could the Senate determine that state courts lack jurisdiction over treaty claims in the first place? As noted earlier, Arti-cle III gives Congress no such power.151 To the extent that the Supremacy Clause gives that power to Congress, then as noted, the federalism declaration seems to preclude any conclusion that the Senate in fact meant to shut the states out of the business of imple-menting the treaty. The most one could say, with regard to the Senate’s intent, is that it meant to shut state courts, but not state legislatures, out of that business.

Any such favoring of state legislatures over state courts, however, seems pro-foundly at odds with federalism. Why, one might ask, should it be up to Senate to decide whether, internally, it should be the state legislature or the state courts that take action to implement the treaty? It is at this point that that the Supreme Court’s “narrow reading” approach to express preemption becomes relevant.

Congress has the power, grounded in the Supremacy Clause of Article VI, to pre-empt state legislation. In some instances a court may find that Congress has expressly preempted state legislation. In other instances preemption may be found because it is not possible to comply with both federal and state law, or because the state law would im-pede achievement of a federal objective (implied conflict preemption). In still other in-stances a court may find that Congress enacted such a comprehensive legislative scheme for a certain area of regulation that it intended to preempt all state laws in that area.152

The law of preemption is nowhere near as neat as this tripartite schema might in-dicate. The question whether a federal statute constitutes an express preemption, for ex-ample, can itself be a matter of controversy. And where there is preemption, the question of what field of regulation is closed off to the states can equally difficult to determine. What is clear, though, is that once Congress has preempted a particular field, the effect is

150 See Bradley & Goldsmith, supra note 140, at 866-68. 151 See text accompanying note 115 supra. 152 See generally Christopher J. Schroeder, Supreme Court Preemption Doctrine, in PREEMP-TION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM’S CORE QUESTION 119 (Wil-liam W. Buzbee, ed., 2009) [hereinafter “PREEMPTION CHOICE”].



drastic: “states lose their power to act at all, regardless of any conflict with federal law.”153

Is the law of preemption, however, at all relevant to the Senate’s declaration of non-self-execution? One ground for questioning its relevance might be that the Senate’s action does not constitute legislation under the Constitution.154 That objection is not of great concern, though. Where the Senate approves a treaty that is self-executing, it has, in effect, approved legislation without the involvement of the House – an action entirely consistent with the Constitution, which gives the Senate the exclusive power to give its advice and consent to ratification of a treaty. More broadly, given the consistency of the practice, the Senate’s action in approving the conditions is at least analogous to approval of a statute.155

The more important objection is that the notion of preemption is inapplicable here, not because it is being applied to a package of conditions, but because nothing has been preempted. Plainly, the Senate’s declaration does not preempt state action in the fields covered by the ICCPR; nor could it conceivably have been intended to. The ICCPR touches on a wide range of matters traditionally (if not necessarily exclusively) regulated by the states. For example, the ICCPR, as noted in Part Two, places restric-tions on how a state may try a juvenile defendant: it requires an individualized determi-nation as a predicate for trying the defendant as an adult. The displacement of state au-thority through federal law (the ICCPR) is manifest. But these restrictions have nothing to do with the declaration of non-self-execution. Or, to put it in the language of preemp-tion, nothing in the declaration of non-self-execution preempts state legislation in the area of the trial of juvenile defendants as adults. The direct transfer statutes are invalid under the ICCPR not because they relate to a matter now reserved to the federal government through its treaty power, but because they are inconsistent with the treaty, which is the supreme law of the land.

Still, the declaration of non-self-execution is something like express federal field preemption, if one understands the “field” correctly. At first glance the field might be thought to be “implementation of the ICCPR.” If implementation is going to take place, it will have to be done by Congress, not by the courts. But if, as argued earlier, there is no ground for holding that a state legislature lacks the power to implement the substan-tive provisions of the treaty, then this statement of the field that is preempted is inexact. It would be more accurate to describe the field as “implementation by state courts (as op-posed to state legislatures).”

Viewed this way, questions about the scope of the declaration of non-self-execution grow out of federalism concerns, just as does preemption doctrine. As the Su-preme Court put it in Rice v. Santa Fe Elevator Corp.:

Congress legislated here in field which the States have traditionally occupied. . . . So we start with the assumption that the historic police powers of the States were

153 Stephen A. Gardbaum, The Nature of Preemption, 79 CORN. L. REV. 767, 771 (1994). See also id. at 811-12. 154 INS v. Chadha, 462 U.S. 919 (1983). 155 See pp. 11-12 supra.



not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.156

Especially in light of Congress’s broad power to regulate under the commerce clause and other provisions of the constitution, there is reason to be concerned that being too quick to read a statute as preempting state legislation could seriously diminish the states’ role.

This concern undergirds an interpretive principle: Where Congress expressly pre-empts state action in a certain field, the courts will interpret Congress’s intent as to the scope of preemption narrowly if the field affected is one in which states traditionally have exercised their police powers.157 To be sure, this “narrow reading” approach does not preclude Congress from preempting state legislation even in a field in which the state has traditionally regulated, but it does require that Congress speak unequivocally to do so.

In Cipollone, for example, the Court was faced with a provision of federal law that forbade any state law regulation of cigarette advertising with respect to cigarettes that met federal labeling law requirements. The Court held that the “narrow reading” ap-proach applied in determining whether this provision precluded state damage awards against the tobacco companies based on failure to warn or fraudulent misrepresenta-tion.158

How strongly the Court in fact applies any presumption against preemption – in the express preemption context or elsewhere159 – is open to question.160 Moreover, the 156 331 U.S. 218, 230 (1947). See generally Betsy J. Grey, Make Congress Speak Clearly: Federal Preemption of State Tort Remedies, 77 B.U. L. REV. 559, 568-69 (1997). 157 See Cipollone v. Liggett Group, 505 U.S. 504, 518 (1992) (citing Rice); Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (same); California Division of Labor Standards Enforcement v. Dillingham Constr., 519 U.S. 316, 330-32 (1997) (). 158 Cipollone, supra, 505 U.S. at 504. Four justices went on to find that the preemption pro-vision did cover such claims; Cipollone, supra, 505 U.S. at ___ (plurality opinion); three jus-tices concluded that it did not, id. at _____ (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part). Cipollone also seemed to imply that the pres-ence of an express preemption clause in a statute would preclude any finding of implied pre-emption as well. This aspect of its approach was soon questioned, see Freightliner Corp. v. Myrick, 514 U.S. 280, 288-89 (1995), and in later cases the Court has focused more on im-plied preemption analysis. See Davis, supra note 160, at 1005-13. 159 The presumption against finding preemption in areas states have traditionally occupied is not confined to claims of express preemption. See Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009) (applying presumption in ruling on claim that compliance with both state tort law and federal drug labeling law would be impossible and that permitting state tort liability would stand as an obstacle to achieving Congressional purposes). 160 See Grey, supra note 156, at 611 (plurality in Cipollone gave only “lip service to the pre-sumption against preemption”); Mary J. Davis, Unmasking the Presumption in Favor of Pre-emption, 53 SO. CAR. L. REV. 967, 1028 (2002) (close examination of Court’s cases shows that “there is a presumption in favor of preemption”); id. at 1021-28. See also Robert R.M. Verchick and Nina Mendelson, Preemption and Theories of Federalism, in PREEMPTION CHOICE, supra note 152, at 13, 28-30 (presumption too easily manipulated); Schroeder, in PREEMPTION CHOICE, supra note 152, at 123 (“what the presumption against presumption ac-tually requires in practice is frequently a matter of disagreement among the justices”).



“narrow reading” approach to express preemption has been criticized on a number of grounds – in particular that the Court should approach the determination of Congressional intent without any presumption one way or the other,161 and that employing a presump-tion is a diversion from the true task of determining the proper balance between state and federal powers.162 Finally, the determination of whether an asserted federal preemption would intrude on traditional state powers is not always free from controversy.163

Still, there is much to be valued in the approach. It has much in common with the Court’s requirement in other contexts that Congress clearly indicate its intent to regulate in areas traditionally handled by states.164 And in contexts where the Court is willing to recognize federal authority, but concerned about the impact of its exercise on federalism, it is a valuable tool for forcing Congress to consider matters more carefully. Even in Cuomo v. Clearing House Association, L.L.C.165 – in which the Justice Scalia, writing for the majority, expressly avoided any reliance on a presumption against preemption in reading a federal regulation not to prohibit state attorneys general from enforcing certain state laws against banks – the Court still gave weight to “the incursion that the Comptrol-ler’s regulation makes upon traditional state powers.”166

Finally, the “narrow reading” approach has particular relevance to interpreting the declaration of non-self-execution in light of Medellín. A major thrust of the Court’s opinion in that case was that the political branches should take primary responsibility for

161 Cipollone, 505 U.S. at 544, 545-46 (Scalia, J., concurring the judgment and dissenting in part); Altria Group, Inc. v. Good, 129 S. Ct. 538, 556 (2008) (Thomas, J., dissenting). But see Grey, supra note 156, at 620 (“this argument ignores the point that express preemption clauses are rarely free of ambiguity”). 162 See Viet Dinh, Reassessing the Law of Preemption, 88 GEO. L.J. 2085, 2117 (2000) (“Re-defining the proper balance of legislative powers between Congress and the states is better accomplished directly, through an insistence on the limits of Congress’s enumerated and lim-ited powers under Article I, rather than circuitously and ineffectually through some vague and ill-conceived presumption against preemption under the Supremacy Clause.”). 163 In Cuomo v. Clearing House Association, L.L.C., 129 S. Ct. 2170 (2009), for example, the Court was closely divided over whether a federal banking regulation intruded on the tradi-tional power of the states. See 129 S. Ct. at 2720 (yes); id. at 2722, 2732 (Thomas, J., dis-senting) (no). 164 See generally William N. Eskridge, Jr. & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking, 45 VAND. L. REV. 593, 596-98 (1992); Grey, supra note 156, at 607-11. Justice Scalia’s view is that “certain presumptions and rules of construction that load the dice for or against a particular result,” ANTONIN SCALIA, A MAT-TER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 27 (1997), are at best of limited value. Id. at 28. Even so, he finds something like a presumption appropriate in some in-stances: “For example, since congressional elimination of state sovereign immunity is such an extraordinary act, one would normally expect it to be explicitly decreed rather than off-handedly implied – so something like a ‘clear statement’ rule is merely normal interpreta-tion.” Id. at 29. 165 129 S. Ct. 2170 (2009). 166 Id. at 2720. See Ernest A. Young, The Continuity of Statutory and Constitutional Inter-pretation: An Essay for Phil Frickey, 98 CAL. L. REV. 1371, 1378-79 (2010).



determining the domestic applicability of treaties. Accompanying this approach with a clear statement rule insofar as the effect of the Senate’s declarations on federalism issues would be entirely appropriate.

There is, then, a strong case for applying an analogue to the “narrow reading” pre-sumption in the case of the ICCPR. As noted, the ICCPR potentially has a profound im-pact on state regulatory authority. Assuming the federal government could occupy those fields through its treaty power, there is no good reason to be too quick to assume it meant to make all matters covered by the treaty exclusively federal matters.167 That is particu-larly so considering that it was the Senate – the body most likely to be sensitive to state interests – that handled approval of the ICCPR.168

Not surprisingly, the Senate was at pains to reject any inference of intent to dis-place states from regulating matters covered by the treaty. As part of the package of con-ditions it adopted a federalism declaration, providing that states would play a role in the implementation of the ICCPR consistent with their traditional regulatory responsibilities. Given this express respect for states’ regulatory authority, even regarding treaty obliga-tions the U.S. took on, it would be surprising to regard the Senate as having intended to engage in a different kind of “preemption” – that is, of implementation by state courts as opposed to state legislatures.169

167 Similarly, Bradley and Goldsmith, writing before Lopez was decided, invoked the “plain statement” approach to federalism in arguing against the position that customary international law is part of federal common law and thus automatically prevails over inconsistent state law or preempts it. Bradley & Goldsmith, supra note 140, at 868 (“the Court has policed the fed-eralism balance between Congress and the states in a variety of contexts through the interpre-tive mechanism of a strict plain statement rule” under which Congress must make clear its intention to regulate an area traditionally left to states). While there is an overlap between their position and mine, in terms of working out the implications of the fact that human rights treaties address matters that were in the past thought to be domestic, nothing in the argument I make here necessitates any conclusion, one way or the other, as to the status of customary international law in domestic law. 168 Of course, as noted earlier, no proposition relating to a presumption in statutory interpreta-tion is free from doubt. One might argue that the Senate is likely to be too sensitive to state interests, and that therefore application of any interpretive presumption in favor of state autonomy is inappropriate. See Jack Goldsmith, Statutory Foreign Affairs Preemption, 2000 SUP. CT. REV. 175, 186. Or one might argue that the whole effort to apply federalism-protecting interpretive presumptions or canons is a misguided attempt to avoid confronting the issues posed by any effort to impose substantive, federalism-protecting limitations on Congress’s power. See WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 286-89, 292-94 (1994). 169 This understanding of what the preemption question is about helps clarify why one poten-tial objection to applying the presumption is inapplicable here. As the Court noted in United States v. Locke, 529 U.S. 89, 108 (2000), “[a]n ‘assumption’ of nonpreemption is not trig-gered when the State regulates in an area where there has been a history of significant federal presence.” See also Cuomo v. Clearing House Ass’n, 129 S. Ct. at 2722, 2732. The fact that it is the scope of a declaration of non-self-execution that is in question here might be thought to argue against applying the preemption, since the treaty power is historically a power of the



One might argue that such preemption is simply beyond Congress’s powers. The most radical argument of this sort would be a doctrine of “reverse preemption,”170 hold-ing that Congress lacks any power to favor state legislatures over state courts in the way that the non-self-execution declarations do. This kind of argument might be rooted in the Ninth Amendment171 or the Guarantee Clause.172 And certainly the courts (including the Supreme Court) have remarked on a number of occasions on the power of states to de-termine for themselves how to allocate power among the different branches of state gov-ernment.173 In rejecting a challenge to a Virginia statute on the ground that it unlawfully delegated legislative power to an executive agency, the Supreme Court said in Highland Farms Dairy v. Agnew that “[h]ow power shall be distributed by a state among its gov-ernmental organs is commonly, if not always, a question for the state itself.”174 Also rele-vant is the Court’s turn, in New York v. United States175 and Printz v. United States,176 to an institutional approach that protects state organs from being commandeered by the fed-

federal government. But the issue here is not the exercise of the treaty power. As far as the treaty power is concerned, there is no question about the substantive effect of the ICCPR on state statutes that permit trial of juvenile defendants without an individualized judicial deter-mination (assuming the interpretation offered in Part Two is correct): The treaty is supreme over inconsistent state statutes. The question here, though, is the balance of powers between state legislatures and courts. 170 See Calvin R. Massey, The Anti-Federalist Ninth Amendment and Its Implications for State Constitutional Law, 1990 WIS. L. REV. 1229, 1233 (1990) (arguing for “reverse pre-emption” of Congressional power). See also Vincent Martin Bonventre, Beyond the Reemer-gence – “Inverse Incorporation” and Other Prospects for State Constitutional Law, 53 ALB. L. REV. 403, 415-18 (1989). 171 See Massey, supra note 170, at 1246:

Just as Congress may not use its legislative power to establish a state religion, it may not use its legislative power to trench upon ninth amendment rights. Since the sub-stance of those rights is to be found in state constitutions, the citizens of a state, through the medium of their constitutions, possess the apparent authority to disable Congress from limiting any rights the states specify as worthy of constitutional pro-tection.

172 See Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1, 41 (1988):

The guarantee clause . . . grants states control over their internal governmental ma-chinery. States, for example, should be free to allocate power among branches of state government; to set terms of office for state officials; and to regulate the internal affairs of governmental bodies.

See generally id. at 40-50. 173 For a useful discussion, see Merritt, supra note 172, at 41-42. 174 300 U.S. 608, 612 (1937). See also Morgan v. South Bend Community School Corp., 797 F.2d 471, 477 (7th Cir. 1986) (noting that “the Court has not held that Congress may decide who within a state’s government has the authority to act on behalf of that government”). 175 505 U.S. 144 (1992) 176 521 U.S. 898 (1997).



eral government. This turn to respect for a state’s own institutional integrity is consistent with the “narrow reading” approach put forth here.177

There is, however, no need here for a sweeping argument about limits to federal powers. On the contrary, we may assume for the sake of argument that Congress has the power to preempt particular state constitutional provisions and even aspects of structural features of state constitutions, such as separation of powers, where necessary to achieve a federal purpose.178 The question here is not the existence of power, but whether it has been exercised.179 Courts should not read the Senate’s declarations of non-self-execution more broadly than they need to for federalism purposes. There is no conceivable foreign

177 To be sure, the anti-commandeering principle does not apply to state courts, which can be required to hear federal claims. [CITES.] It would be a mistake to read this exclusion as evi-dencing some broad power on the federal government’s part to control state separation of powers issues whenever state court jurisdiction is involved. Requiring state courts to hear federal claims does not upset the balance of power within a state. 178 See Merritt, supra note 172, at 44-49 (pointing to the Fourteenth and Fifteenth Amend-ments and the spending power as bases for federal intervention into state government struc-ture); Morgan, 797 F.2d at 477 (noting the “sweeping authority” Congress enjoys under sec-tion 5 of the Fourteenth Amendment “over the operation of state governments”). There seems no reason to limit Congressional power in this respect to those bases; the commerce clause or the treaty power might equally serve. For other explorations of the importance of state autonomy, but with equal emphasis on the legitimacy of a federal role in shaping state government, see Charlton C. Copeland, Ex Parte Young: Sovereignty, Immunity, and the Constitutional Structure of American Federalism, 40 U. TOL. L. REV. 843 (2009); Charlton C. Copeland, Federal Law in State Court: Judicial Federalism Through a Relational Lens, WILLIAM & MARY BILL OF RIGHTS J. (forthcoming 2010) (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1586378).

Nor is it realistic to overlook that federal courts may in other contexts favor one branch over the other when it comes to state governments. As Justice Blackmun pointed out in his dis-sent, the Court’s decision in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), effectively favored judicially fashioned land use regulation in the form of nuisance over statutory regulation. See Lucas, 505 U.S. at 1052 n.52 (Blackmun, J., dissenting) (noting that the majority’s recognition of a nuisance exception to the prohibition of the deprivation of all economically valuable uses of property is limited to nuisances as determined by state courts, not state legislatures). Drawing on Art. II, § 1, cl. 2, Chief Justice Rehnquist concluded in Bush v. Gore, 531 U.S. 98 (2000), that the Florida Supreme Court had intruded on the Flor-ida legislature’s power. 531 U.S. at 112, 114-22 (Rehnquist, C.J., concurring); see id. at 123 (Stevens, J., dissenting) (criticizing the concurrence’s reading of Article II as resulting in an unwarranted intrusion into state separation of powers matters). 179 Compare Garnett v. Renton School Dist. 403, 987 F.2d 641 (9th Cir. 1993) (in providing for equal access to public schools, Congress preempted a California constitutional provision barring sectarian control or influence of public schools) with Wheeler v. Barrerra, 417 U.S. 402 (1974) (in providing funding for programs to assist educationally deprived children in public and private schools, Congress made clear its intention not to preempt state constitu-tional proscriptions against state provision of educational services in private schools).


http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1586378


policy goal in the kind of institutional intervention represented by favoring state legisla-tures over state courts in implementation of the ICCPR.180

There remain two major issues about the approach. One set of questions concerns the scope of the declaration of non-self-execution under this approach. The other con-cerns the advisability of attempts to protect federalism through the courts rather than the political process.

With regard to the scope of the non-self-execution declaration, there are three ma-jor issues. First, it might be argued that the narrow reading approach favors denying the applicability of the declaration of non-self-execution to state courts entirely (regardless of whether the issue concerned pre- or post-ratification state statutes). As discussed ear-lier,181 though, with regard to pre-ratification state statutes the problem to which preemp-tion might be a solution simply did not arise. The Senate, that is, made a determination that it had brought the treaty and domestic law into conformity as of the time of ratifica-tion. It had no reason to expect or intend any need for judicial challenges to pre-ratification statutes, because it had engaged in a systematic effort to eliminate any dis-crepancy between the ICCPR and then-current domestic law. The problem of its intent – the question of whether it meant to intervene in state separation of powers matters to fa-vor state legislatures over courts – could arise only with respect to post-ratification state statutes.182

Second, one might ask why state courts should be precluded from hearing treaty-based challenges to post-ratification federal statutes. State courts do, routinely, adjudi-cate federal claims. As noted earlier, however, the Senate itself could reasonably expect 180 For a different but somewhat similar version of a presumption against preemption in cases where preemption would intervene in a state’s internal structure, see Trevor W. Morrison, The State Attorney General and Preemption, in PREEMPTION CHOICE, supra note 152, at 81, 81-82 (“Given the electoral accountability of most state attorneys general and their long-standing mandates to enforce state laws in pursuit of the public interest, I suggest that un-elected federal agencies should be particularly reluctant, absent a clear statutory mandate, to displace the work of state attorneys general. Instead, federal law should preempt the work of state attorneys general only by express statutory language.”). The proposal is similar in that it analyzes the effect of federal preemption on the internal structure of state governments. It is different in that the proposal rests on the claim that state attorneys general, being “signifi-cant institution[s] in state government,” deserve “special consideration” in preemption analy-sis. Id. at 97. This would appear to be a use of a judicial presumption not to leave the inter-nal structure of state governments to each state (in the absence of an express Congressional intent to do otherwise), but rather to use it to bolster a particular actor within state govern-ments. 181 See p. 39 supra. 182 In this sense, the “narrow reading” approach has a temporal dimension. It bears some re-semblance to the “vexing problem [that] arises when an older federal statute containing an express preemption clause confronts regulatory issues that were unanticipated at the time of the federal enactment.” Schroeder, in PREEMPTION CHOICE, supra note 152, at 135 (discuss-ing issue of whether preemption clause of 1975 federal statute on automotive mileage stan-dards, intended to reduce dependence on foreign oil, covers recent state statutes designed to reduce greenhouse gas emissions).



to be the guardian against enactment of future federal statutes inconsistent with the treaty. Moreover, state legislatures have no power to enact statutes overriding federal statutes; the absence of state judicial power to hold federal statutes invalid on grounds of inconsis-tency with the ICCPR does not constitute an intervention into state separation of powers matters.

Third, one might ask why federal courts should have any power to enforce the ICCPR as to post-ratification state statutes. The concerns about the Senate unduly inter-vening in the balance of powers at the state level would not necessarily ground any objec-tion to the Senate’s telling the federal courts not to enforce the treaty. There are two re-sponses to this observation.

One would be to leave the matter to state courts. In practice, though not in con-ception, this would come close to treating the ICCPR as approved by the Senate as a mat-ter of state law. 183 In one sense, this is neither unworkable nor surprising. After all, if a state legislature were to enact implementing legislation as set out earlier, the statute would be a state statute. Federal courts would have diversity jurisdiction over claims un-der that statute, but not federal question jurisdiction. A similar approach could work if the implementation proceeded by state courts: how exactly the ICCPR was implemented might vary from state to state. If the state-by-state variation ultimately proved unwieldy, the federal government would have ample means for addressing the problems. It could enact specific implementing legislation which, barring some alleged Tenth Amendment violation,184 would override any inconsistent state law. Or it could always withdraw the declaration of non-self-execution, opening the way for federal courts to interpret and ap-ply the treaty.

The better response, in my view, would be to read the declaration of non-self-execution as simply not applying to post-ratification statutes, at the federal or state court level. Once again, the question here is not one of power, but of the Senate’s intent. To read a temporal limitation into the declaration of non-self-execution – a limitation that reflects the Senate’s own efforts to make sure the treaty did not conflict with existing state law – is one thing. It is another thing to assume the Senate meant to embark on a whole new path of having some treaty obligations enforceable only in state courts. The very point of the “narrow reading” presumption is to interpret Congressional intent in

183 Before Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), customary international law was regarded as a matter of state law. See RESTATEMENT, supra note 2, Introductory Note, at 40-42. Today it is typically regarded as part of federal common law. See Harold Hongju Koh, Commentary: Is International Law Really State Law?, 111 HARV. L. REV. 1824 (1998). But see Bradley & Goldsmith, supra note 140 (arguing that even after Erie, customary interna-tional law was not part of federal common law unless Congress so provided). In contrast, given the language of the Article VI of the Constitution, there seems little ground, in contrast, for doubting the status of treaties as part of federal law. 184 Cf. United States v. Bond, 581 F.3d 128, 132-33 (3d Cir. 2009) (noting that district court had rejected a Tenth Amendment challenge to a conviction for using chemical weapons based on a federal statute implementing the 1993 Chemical Weapons Convention, and de-clining to rule on the constitutional question on the ground that the defendant lacked stand-ing), cert. granted, 78 U.S.L.W. 3629 (No. 09-1227 Oct. 12, 2010).



light of expectations grounded in the federal structure. Congress – including the Senate – can innovate, but it is reasonable to expect it to say that when it does so.

A final question relates to the implicit assumption here that the courts have a use-ful role to play in protecting federalism, rather than leaving the matter largely to the po-litical branches, as Garcia v. San Antonio Metropolitan Transit Authority,185 suggests. Even if a broad reading of the declaration of non-self-execution amounts to a federal in-tervention into an internal state separation of powers matter, one might ask, why not leave the remedy for that intervention – if states perceive it to be a problem – to the po-litical process?

To some extent, this way of posing the issue begs the question. Whether or not there is a problem for the political process to remedy depends on how one interprets the declaration in the first place. Only if one reads it as its broadest does the problem of in-tervention into internal state structure arise. There is no way for courts to escape the question of how best to interpret the declaration.

In making that interpretation, courts need to consider the inhibiting impact of a broad reading of the declaration on the possibility of a political response. Any image of “states” seeking a political remedy in Congress for an intrusion into their structural integ-rity is misleading. There is always the question of who will act on behalf of the states, pressing Congress to act. If the non-self-execution declaration is read to disable state courts from implementing the treaty, but not state legislatures, then the one branch whose members are capable for pressing for change at the political level in Congress has already had its relative power enhanced. The nature of the intrusion itself tends to under-cut any realistic prospect for political pressure to change it.

In short, the fact that states could always try to get the political branches to retreat from an unjustified intrusion into their internal structures is not a reason to refrain from assuming, in the absence of a clear signal to that effect, that the Senate intended to effect such an intrusion.

Conclusion

In a sense, the standard approach to ratifying human rights treaties presaged Medellín’s emphasis on charging the political branches with primary responsibility for determining the domestic effect of treaties.186 As advocates of a presumption against self-execution have put it, “the President and Congress possess institutional capabilities and resources that render them superior to the courts in shaping how the nation should live up to its treaty commitments.”187 How well these capabilities work in practice, though, turns out to be tied in to the question of how the political branches shape the sub-stantive contours of the treaty obligations the U.S. takes on. 185 469 U.S. 528 (1985). 186 552 U.S. at 516 (political branches should have “the primary role in deciding when and how international agreements will be enforced” domestically). This does not mean that Medellín unequivocally establishes a presumption against self-execution, but it does raise the real possibility that the Court will take such an approach in the future. 187 John C. Yoo, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, 99 COLUM. L. REV. 2218, 2248 (1999); see id. at 2255.



In theory, the Senate has a powerful instrument to ensure compliance with a treaty that relates to matters covered by domestic law: It uses conditions to bring the treaty ob-ligations the U.S. takes on into conformity with the domestic law. At the very least, the analysis of the juvenile justice conditions shows that there are two very different ways to go about achieving this conformity. One is to make the treaty obligations subject to U.S. law, whatever it may be, now or in the future. This is the approach the U.S. has taken on constitutional matters and some statutes.188 The other is to specify a substantive standard thought to represent the state of domestic law at the time of treaty ratification. This is the approach the U.S. took with respect to the juvenile justice provisions of the ICCPR.

As is evident, there is a big difference between the two when domestic law changes, as it can – whether the domestic law is constitutional or statutory, state or fed-eral. A declaration of non-self-execution adopted on the express premise that domestic law conforms to the treaty can be practically cut adrift if domestic law subsequently changes in ways that seem incompatible with the treaty obligations (as modified by the conditions). It can also have federalism implications that have been insufficiently recog-nized – implications not for the balance of regulatory power between the states and the federal government, but for federal intervention into the structure of state governments. In the case of the ICCPR, the best way to deal with the problems this approach can cre-ate– while recognizing the political branches’ authority to define the scope of a declara-tion of non-self-execution as they see fit – is to give the declaration of non-self-execution a “narrow reading,” exempting state statutes enacted after ratification.

188 See TAN 109 and note 109 supra.


the temporal problem in declarations of non-self …...proposed amendment to the constitution had in...

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