The University of New Hampshire Law Review
42 U.S.C. § 1983: A Legal Vehicle with No International Human Rights Treaty Passengers
[Excerpt] “How do international human rights treaties interact with the domestic civil rights law of the United States and, particularly, 42 U.S.C. § 1983? How should international human rights treaties interact with the domestic civil rights law of the United States? ―International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. The United States is obligated to respect the international treaties it ratifies, whether they are fully implemented in domestic law or not. In practice, however, exactly how has this been done, or not done, regarding 42 U.S.C. § 1983 and international human rights treaties?
This article begins with an examination of the three most recent international human rights treaties ratified by the United States of America: 1) the International Covenant on Civil and Political Rights; 2) the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; and 3) the International Convention on the Elimination of All Forms of Racial Discrimination. This article also addresses the conditions upon which the United States ratified these three conventions. Next, this article addresses the international reaction to the United States’ position with regard to the ratification of international human rights treaties. This article then analyzes the applicability of 42 U.S.C. § 1983 as an appropriate legal vehicle for the domestic litigation of international treaty violations. Next, this article discusses, in more detail, exactly what it means for a treaty to contain a non-self-executing declaration and how such a declaration directly affects the attempted use of 42 U.S.C. § 1983 to litigate international treaty violations in domestic courts. Finally, this article sets forth a few theories for why the United States has not ratified human rights treaties on an all-inclusive basis and concludes that, nevertheless, the ratification of international human rights conventions by the United States is a positive first step. However, it is now time for the United States to take the next logical step in promoting civil and human rights by withdrawing its reservations, understandings, and declarations to the international human rights conventions it has ratified.”
Matthew J. Jowanna, 42 U.S.C. § 1983: A Legal Vehicle with No International Human Rights Treaty Passengers, 9 U.N.H. L. REV. 31 (2010), available at http://scholars.unh.edu/unh_lr/vol9/iss1/5