IGARTÚA v. U.S

See, e.g., Abbott v. Abbott, ___ U.S. ___, 130 S.Ct. 1983, 1990, 176 L.Ed.2d 789 (May 17, 2010) ("The interpretation of a treaty . . . begins with its text.") (citation omitted); Medellin v. Texas, 552 U.S. 491, 562, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (explaining that "explicit textual expression" is the focus of the self-execution analysis); United States v. Alvarez-Machain, 504 U.S. 655, 663, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992) (stating that courts look first to a treaty's terms to determine their content); United States v. Stuart, 489 U.S. 353, 365-66, 109 S.Ct. 1183, 103 L.Ed.2d 388 (1989) ("The clear import of treaty language controls unless application of the words of the treaty according to its obvious meaning effects a result inconsistent with the intent or expectations of the signatories.") (internal quotation and citations omitted); see also Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976) ("In determining whether a treaty is self-executing courts look to the intent of the signatory parties as manifested by the language of the instrument, and, if the instrument is uncertain, recourse must be had to the circumstances surrounding its execution.").

(iv) The legal import of the Senate's declaration regarding the ICCPR

Notwithstanding these established rules, the Government's contentions regarding the alleged non-self execution of the ICCPR rely exclusively on statements made in the ratification process of the ICCPR before the Senate. The Government contends that the Senate's declaration, purporting to establish that the substantive provisions of that treaty would not be self-executing, ipso facto results in making the treaty non-self-executing, and argues that this declaration by the Senate is binding on the courts. The government is wrong for several reasons.

See S. Exec. Rep. No. 102-23 (1992), reprinted in 31 I.L.M. 645, 657 (conditioning the Senate's consent on the United States' declaration that the treaty be non-self-executing); see also id. at 660 (reprinting a letter from the President to the Senate requesting ratification of the ICCPR). But see 138 Cong. Rec. 8070 (1992) (statement of Sen. Daniel Moynihan) ("Even though the Convention is non-self-executing, the[] [provisions of the ICCPR] will now become binding obligations of the United States.").

First of all, a declaration is a statement of position by the Senate that "is not presented to the other international signatories as a request for a modification of the treaty's terms." Igartúa III, 417 F.3d at 190 (Howard, J., dissenting). Thus a declaration is not part of the treaty, but instead "is directed primarily toward United States courts to express `the sense of the Senate' that the treaty should . . . be interpreted [in the manner proposed by the Senate]." Id.

In the case of the ICCPR, the Senate also made several reservations, which were specifically directed at Articles 7, 10, 15 and 20 of the ICCPR. A reservation is a "unilateral statement . . . whereby . . . [a State] purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State." Vienna Convention on the Law of Treaties, art. 2(1)(d) (May 23, 1969), 1155 U.N.T.S. 331. In contradistinction with a declaration, a reservation has an actual effect on the terms of the treaty. See Michael J. Glennon, The Constitutional Power of the United States Senate to Condition Its Consent to Treaties, 67 Chi.-Kent L. Rev. 533, 542 n. 63 (1991) (noting that in exchange for ratification the Senate can require the President to enter a reservation to the treaty and to obtain the other signatory's consent to this change). There is no question that the Senate may hinge its consent to ratify a treaty on a reservation. See Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35, 19 L.Ed. 571 (1869); see also Restatement (Third) of Foreign Relations Law of the United States § 314 cmt. d (1986) (noting that when the United States accedes to a treaty with reservations, this statement has domestic legal effect, whereas other indications that the President or Senate assigned a distinct meaning to the treaty, such as declarations, are only pertinent to treaty interpretation in "the same way that the legislative history of a statute is relevant").

See 138 Cong. Rec. 8070-71 (stating that the United States would not take any steps to comply with Article 20 that would infringe on the right to free speech and association, deeming the ICCPR article 7 prohibitions against cruel, inhuman, or degrading treatment or punishment to apply only to treatment deemed "cruel and unusual" under domestic constitutional law, declining to adhere to ICCPR article 15, paragraph 1, and reserving the right to treat juveniles as adults under certain circumstances, notwithstanding the provisions of ICCPR article 10, paragraphs 2(b) and 3, and article 14, paragraph 4).

It is important to note that the Senate made no reservations regarding the rights provided for in Article 25, or Article 2 paragraphs l, 2, and 3.

"Every citizen shall have the right and the opportunity . . . [t]o vote . . . at genuine periodic elections which shall be by universal and equal suffrage." ICCPR art. 25.

The United States "undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind." Id. art. 2, para. 1.

"Where not already provided for by existing legislation] . . . each State Party . . . undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant." Id. art. 2, para. 2.

The United States agreed to an enforcement mechanism to realize and secure the rights recognized by the Covenant, and undertook "[t]o ensure that any person whose [ICCPR] rights or freedoms . . . are violated shall have an effective remedy" and to ensure that these rights are "determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal systems of the State and to develop the possibilities of judicial remedy." Id. art. 2, para. 3.

The Senate's declaration that the ICCPR is non-self-executing is ultra vires with respect to the ratification process and as such that declaration is not binding on the courts, who are required to exercise their independent judicial power under the Supremacy Clause in interpreting the meaning and import of all treaties entered into by the United States.

[T]he Senate lacks the constitutional authority to declare the non-self-executing character of a treaty with binding effect on U.S. courts. The Senate has the unicameral power only to consent to the ratification of treaties, not to pass domestic legislation. A declaration is not a part of a treaty in the sense of modifying the legal obligations created by it. A declaration is merely an expression of an interpretation or of a policy or position. U.S. courts are . . . not bound to apply expressions of opinion adopted by the Senate (and concurred in by the President). The courts must undertake their own examination of the terms and context of each provision in a treaty to which the United States is a party and decide whether it is self executing. The treaty is law. The Senate's declaration is not law. The Senate does not have the power to make law outside the treaty instrument.

Stephan A. Riesenfeld Frederick M. Abbott, Foreword: Symposium on Parliamentary Participation in the Making and Operation of Treaties, 67 Chi.-Kent L. Rev. 293. 296-97 (1991). This is the unanimous view of treaty-law scholars.

See, e.g., Louis Henkin, Foreign Affairs and the Constitution of the United States, 202 (2d ed. 1996) (describing the Senate's practice of declaring treaties non-self-executing as "anti-Constitutional in spirit"); Henkin, supra note 15, at 346 (arguing that non-self-executing declarations by the Senate may be unconstitutional); Cinotti, supra note 13, at 1291 (contending that "the President and the Senate do not have constitutional authority to make a non-self-execution declaration legally binding"); Jordan J. Paust, Avoiding "Fraudulent" Executive Policy: Analysis of Non-Self Execution of the Covenant on Civil and Political Rights, 42 Dapple L. Rev. 1257, 1265 (1993) (quoting with approval the International Law Association's statement that it "may well be that a non-self-executing declaration . . . does not bind the judicial branch"); John Quigley, The International Covenant on Civil and Political Rights and the Supremacy Clause, 42 Dapple L. Rev. 1287, 1298 (1993) (arguing that courts, rather than the Senate, should determine whether or not a treaty is non-self-executing); see also Charles Dearborn, III, Note, The Domestic Legal Effect of Declarations that Treaty Provisions Are Not Self-Executing, 57 Tex. L. Rev. 233, 251 (1979) (arguing that declarations might be "an invalid attempt by the Senate to enact domestic legislation without the concurrence of the House").

It is also the conclusion reached in the only case to have directly passed upon this specific issue, Power Auth. of N.Y. v. Fed. Power Commission, 247 F.2d 538 (D.C. Cir. 1957), vacated as moot, 355 U.S. 64, 78 S.Ct. 141, 2 L.Ed.2d 107 (1957). In this case, the District of Columbia Court of Appeals held that a "reservation" by the Senate in a bilateral treaty with Canada was ineffective because the "reservation" (i.e., declaration) only involved U.S. domestic law. Id. at 541. For the reservation (i.e., declaration) to be binding on the judiciary, the court reasoned, it had to constitute an actual part of the treaty:

Although the opinion uses the term "reservation" throughout, it is clear that what is involved is a "declaration" by the Senate. Power Auth. of N.Y., 247 F.2d at 541 (calling the Senate's statement a "reservation" but noting that the statement "made no change in the treaty" and "was not a counter-offer").

A true reservation which becomes part of a treaty is one which alters "the effect of the treaty in so far as it may apply in the relations of (the) State or States which may be parties to the Treaty." It creates "a different relationship between" the parties and varies "the obligations of the parties proposing it."

Id. (internal citations omitted). Because the "reservation" (i.e., declaration) was merely an expression of the Senate's views concerning domestic policy, it was not part of the treaty; and, ergo, it did not become domestic law under the Supremacy Clause. Accordingly, it was not binding on the court. See also N.Y. Indians v. United States, 170 U.S. 1, 23, 18 S.Ct. 531, 42 L.Ed. 927 (1898) ("The power to make treaties is vested by the Constitution in the president and senate, and, while this proviso was adopted by the senate, there is no evidence that it ever received the sanction or approval of the president. It cannot be considered as a legislative act, since the power to legislate is vested in the president, senate and house of representatives. There is something, too, which shocks the conscience in the idea that a treaty can be put forth as embodying the terms of an arrangement with a foreign power or an Indian tribe, a material provision of which is unknown to one of the contracting parties, and is kept in the background to be used by the other only when the exigencies of a particular case may demand it.").

More recently, the Supreme Court has affirmed the separate and distinct roles assigned to the Senate and Executive by the Constitution under Article II. In Medellin, the Court held that an executive memorandum purporting to grant individuals rights under a non-self-executing agreement was invalid because, while "[t]he President has an array of political and diplomatic means available to enforce international obligations . . . unilaterally converting a non-self-executing treaty into a self-executing one is not among them. The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress," through, for example, the enactment of implementing legislation. 552 U.S. at 525-26, 128 S.Ct. 1346. The Court explained:

The requirement that Congress, rather than the President, implement a non-self-executing treaty derives from the text of the Constitution, which divides the treaty-making power between the President and the Senate. The Constitution vests the President with the authority to "make" a treaty. If the Executive determines that a treaty should have domestic effect of its own force, that determination may be implemented in "mak[ing]" the treaty, by ensuring that it contains language plainly providing for domestic enforceability. If the treaty is to be self-executing in this respect, the Senate must consent to the treaty by the requisite two-thirds vote, consistent with all other constitutional restraints.

Id. at 526, 128 S.Ct. 1346 (emphasis added) (internal citation omitted). Thus, as the Supreme Court has reinforced, the constitutional prerogative to "make" treaties, and to set their domestic legal effect, falls in the first instance to the executive. While the Senate's views regarding self-execution may be relevant to the interpretation of an ambiguous treaty, see Stuart, 489 U.S. at 366-8,109 S.Ct. 1183; Restatement (Third) of Foreign Relations Law of the United States § 314, cmt. d (1987) ("indication that . . . the Senate ascribed a particular meaning to the treaty is relevant to the interpretation of the treaty by a United States court in much the same way that the legislative history of a statute is relevant to its interpretation"), those views are not capable of supplanting the plain language of an agreement. Stuart, 489 U.S. at 373, 109 S.Ct. 1183 (Scalia, J., concurring) ("Only when a treaty provision is ambiguous have we found it appropriate to give authoritative effect to extratextual materials."); see also Air France v. Saks, 470 U.S. 392, 399-400, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985); Nielsen v. Johnson, 279 U.S. 47, 52, 49 S.Ct. 223, 73 L.Ed. 607 (1929).

Nonetheless, as Justice Scalia points out in his concurrence in Stuart:

Of course the Senate has unquestioned power to enforce its own understanding of treaties. It may, in the form of a resolution, give its consent on the basis of conditions. If these are agreed to by the President and accepted by the other contracting parties, they become part of the treaty and of the law of the United States. If they are not agreed to by the President, his only constitutionally permissible course is to decline to ratify the treaty, and his ratification without the conditions would presumably provide the basis for impeachment. Moreover, if Congress does not like the interpretation that a treaty has been given by the courts or by the President, it may abrogate or amend it as a matter of internal law by simply enacting inconsistent legislation. But it is a far cry from all of this to say that the meaning of a treaty can be determined, not by a reservation attached to the President's ratification at the instance of the Senate, nor even by formal resolution of the Senate unmentioned in the President's ratification, but by legislative history of the sort that we have become accustomed to using for purpose of determining the meaning of domestic legislation.

Stuart, 489 U.S. at 375, 109 S.Ct. 1183 (Scalia, J. concurring) (emphasis added).

In conclusion, the declaration by the Senate to the effect that the ICCPR is non-self-executing is not binding on the courts, which are required by the Supremacy Clause to make an independent judgment of that issue, based on the language of the treaty and, if that is not clear, on the negotiating history of the treaty in question.

The en banc court's reliance on dicta in the Supreme Court's Sosa decision to conclude otherwise was plainly erroneous. See Igartúa III, 417 F.3d at 150. In relevant part, the issue in Sosa was whether the petitioner's detention violated customary international law and not the ICCPR. See 542 U.S. at 735, 124 S.Ct. 2739. The question of the ICCPR's self-execution was never presented to the Court; indeed, the petitioner expressly conceded that "this treaty is not self-executing and may not be relied upon by individuals in domestic court proceedings." Brief of Petitioner, Sosa v. Álvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), No. 03-339, 2004 WL 162761 at 41. As Chief Justice Marshall aptly observed, "[i]t is extremely dangerous to take general dicta upon supposed cases not considered in all their bearings, and, at best, inexplicitly stated as establishing important law principles." Alexander v. Baltimore Ins. Co., 8 U.S. (4 Cranch) 370, 379, 2 L.Ed. 650 (1808). The lead opinion's reliance on Sosa illustrates his point. In its haste to dispose of Appellant's treaty-based claims, the en banc majority all but abandoned the Supreme Court's established plain-text approach to questions of self-execution, and turned on its head the Treaty Clause's careful separation of powers. See U.S. Const., art. II, § 2, cl. 2 ("[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. . . .")

Even the lead opinion recognizes that Sosa `s statement that the ICCPR is non-self executing is dicta. See op. at 605-06.

It is appropriate at this time to bypass and correct this decision not only because, as admitted by the lead opinion, it was based on dicta in Sosa, see op. at 605-06, but also because more recent Supreme Court precedent places its bare majority conclusions in serious doubt. The political ties between the United States and its territories have continued to evolve and have become ever more integrated. Cf. Boumediene, 553 U.S. at 758, 128 S.Ct. 2229 ("It may well be that over time the ties between the United States and any of its unincorporated Territories strengthen in ways that are of constitutional significance."). The only thing that has not changed is the political inequality of the class of United States citizens residing in Puerto Rico. I would hold that the task of determining whether the ICCPR is self-executing, and gives rise to enforceable rights, is for the courts. The lead opinion's reliance on dicta in Sosa essentially prevents that examination. As will be shown, recourse to the plain language of that treaty, and to its drafting history, demonstrates that it is in fact a self-executing agreement that, upon ratification, became the Law of the Land and thus must be enforced by this court.

(b) The plain language of the ICCPR counsels that individual rights were created and that the United States agreed to provide a forum and remedies for the vindication of those rights to those of its citizens who claim a violation of those rights.

The text of the ICCPR unequivocally spells out individual rights and establishes the obligations of the contracting parties regarding their enforcement by individual citizens who claim violations of these rights. A straightforward reading of this language should leave little doubt that the United States has entered into an international agreement creating individual rights ipso facto: at a minimum, the United States has agreed that "[ e]very citizen shall have the right and opportunity . . . [t]o vote . . . at genuine and periodic elections which shall be by universal and equal suffrage." ICCPR art. 25, para, b (emphasis added). Upon ratification of this treaty by the Senate, these rights have become the supreme law of the land. Further, the United States has agreed to provide an effective remedy for the violation of these rights. Id. art. 2, para. 3 (emphasis added). Moreover, the United States "undercook] to respect and ensure [the right to vote of] all individuals within its territory and subject to its jurisdiction . . . without distinction . . ." Id. at art. 2, para. 1. Further, it agreed "that any person claiming such a remedy shall have the right thereto determined by competent, judicial, administrative, or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop possibilities of judicial remedies." Id. art. 2, para. 3 (emphasis added). Nonetheless, in contravention of these obligations, the United States government has not only failed to act in support of the same, but it has actively obstructed their realization. See Igartúa III, 417 F.3d at 175 (Torruella, J., dissenting) ("[I]t is an undisputed fact that, contrary to the requirements of Article 2, Paragraph 2 of the ICCPR, the United States has taken no steps, to date, to implement the obligations undertaken therein.").

There is nothing "aspirational" or "precatory" in the language used by the treaty. See Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872, 881 (D.C. Cir. 2006) (explaining that one way courts may find a treaty non-self-executing is if its "provisions are precatory, aspirational, or otherwise too vague to be judicially enforceable"); see also Edye v. Robertson, 112 U.S. 580, 598-99, 5 S.Ct. 247, 28 L.Ed. 798 (1884) ("A treaty . . . is a law of the land as an act of [C]ongress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute." (emphasis added)). Rather, it speaks to the establishment of specific individual rights. Compare ICCPR art. 25'("Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions . . . [t]o vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage. . . .") (emphasis added), with Jogi v. Voges, 480 F.3d 822, 833-4 (7th Cir. 2007) (holding that Article 36.1(b) of the Vienna Convention, which "states, plainly enough, that authorities ` shall inform the person concerned without delay of his rights under this sub-paragraph'" confers "individual rights," notwithstanding general language of preamble providing that "the purpose of [the Convention's] privileges and immunities is not to benefit individuals"), and British Caledonian Airways, Ltd. v. Bond, 665 F.2d 1153, 1161 (D.C. Cir. 1981) (use of language "shall have the right" to codify rights under the so-called Chicago Convention means that the treaty's provisions "may not be qualified or modified through legislation or administrative regulations enacted by the individual signatory nations" and are, therefore, self-executing). It is as precise and as mandatory as any law on the subject would be, had it been enacted directly by Congress. Cf. Medellin v. Dretke, 544 U.S. 660, 687, 125 S.Ct. 2088, 161 L.Ed.2d 982 (2005) (O'Connor, J., dissenting from dismissal of writ of certiorari as improvidently granted) ("[I]f [like Article 36 of the Vienna Convention] a statute were to provide, for example, that arresting authorities `shall inform a detained person without delay of his right to counsel,' I question whether more would be required before a defendant could invoke that statute to complain in court if he had not been so informed.").

The ICCPR's language requiring the United States to provide a remedy for violations is no less clear and capable of giving rise to enforceable rights. Compare ICCPR art. 2 (United States undertakes to "ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy," and that "any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities," and "ensure that the competent authorities shall enforce such remedies when granted"), with People of Saipan by Guerrero v. U.S. Dep't of Interior, 502 F.2d 90, 97 (9th Cir. 1974) (holding that Article 6 of Trusteeship Agreement with Micronesia, which "require[d] the United States to `promote the economic advancement and self-sufficiency of the inhabitants, and to this end . . . regulate the use of natural resources' and to `protect the inhabitants against the loss of their lands and resources'" gave rise to "rights enforceable by an individual litigant in a domestic court of law" to challenge proposed construction of hotel on Trusteeship territory).

The ICCPR's language certainly does not countenance the narrow interpretation advocated by the government and by the lead opinion. See, e.g., Stuart, 489 U.S. at 368, 109 S.Ct. 1183 ("[A] treaty should generally be construe[d] . . . liberally to give effect to the purpose which animates it and . . . [e]ven where a provision of a treaty fairly admits of two constructions, one restricting, the other enlarging, rights which may be claimed under it, the more liberal interpretation is to be preferred. . . .") (internal quotation marks omitted); Asakura v. City of Seattle, 265 U.S. 332, 342, 44 S.Ct. 515, 68 L.Ed. 1041 (1924) ("Treaties are to be construed in a broad and liberal spirit, and, when two constructions are possible, one restrictive of rights that may be claimed under it and the other favorable to them, the latter is to be preferred.").

That these commitments did not require implementing legislation to give rise to enforceable, individual rights is further evidenced not only by the plain language of the treaty but also by the representations of the Executive Branch which, in negotiating the treaty on behalf of the United States, indicated that "existing U.S. law generally complies with the Covenant, hence, implementing legislation is not contemplated." See S. Exec. Rep. No. 102-23, at 19 (1992), reprinted in 31 I.L.M. 645 (1992); see also id. at 10 ("In general, the substantive provisions of the Covenant are consistent with the letter and spirit of the United States Constitution, and laws, both state and federal.").

Congress has in fact acted in partial compliance with its obligations under the ICCPR when, in 1961, just a few years after the United Nations first ratified the ICCPR, it amended our fundamental charter to allow the United States citizens who reside in the District of Columbia to vote for the Executive offices. See U.S. Const. amend. XXIII. Indeed, a bill is now pending in Congress that would treat the District of Columbia as "a congressional district for purposes of representation in the House of Representatives," and permit United States citizens residing in the capitol to vote for members of the House of Representatives. See District of Columbia House Voting Rights Act, S. 160, 111th Cong, (passed by Senate, February 26, 2009) (2009). However, the United States has not taken similar "steps" with regard to the five million United States citizens who reside in the other U.S. territories, of which close to four million are residents of Puerto Rico. This inaction is in clear violation of the United States' obligations under the ICCPR.

Further, in 1977, the year in which the Carter administration first submitted the ICCPR to the Senate for ratification, Congress passed a proposed constitutional amendment that would have granted the District of Columbia congressional voting representation "as if it were a state." See H.R.J. Res. 554, 95th Cong., 92 Stat. 3795 (1978).

A similar bill was introduced in the House of Representatives on January 6, 2009. H.R. 157, 11 lth Cong. (2009).

Further, the conclusion that the ICCPR creates individual rights, enforceable in the courts of the United States, is abundantly clear from the negotiating history of the Treaty. See generally Bossuyt, supra note 34. Illustrative of this is the Report of the Commission on Human Rights, 5th Session (1949), 9th Session (1953), which addresses the formulation of political rights under what eventually became article 25 of the ICCPR. The report states:

Two formulae were proposed: "Every citizen . . . shall be guaranteed by the State the right and the opportunity [to vote]" and "Every citizen shall have the right and the opportunity [to vote]," the former emphasizing the obligation of the State, the latter the rights of the citizen. The latter wording was adopted.

Bossuyt, supra note 34, at 471 (internal citations omitted).

In a later discussion of Article 25, paragraph (b) (providing the right "[t]o vote . . . at genuine periodic elections which shall be by universal and equal suffrage"), the Report states:

The various requirements of the article that elections must be "genuine," "periodic," "by universal and equal suffrage," and "by secret ballot" did not give rise to much discussion, except for the words "universal and equal suffrage." The opinion was expressed that the word "universal" was redundant in the light of the introductory clause, "Every citizen shall have the right;" so was the word "equal", in view of the reference to the non-discrimination clause of article 2. The majority, however, considered that the principle of "universal and equal suffrage" was a most fundamental one, and decided to include it in the article. This provision, it was thought, would leave States parties to the Covenant free to regulate their own electoral system, provided each vote carried equal weight.

Id. at 474-75 (internal citations omitted). Article 25 was approved at the 1096th meeting of the Third Committee, 16th Session (1961), by a vote of 71 to none, with 4 abstentions. See id. at 477; A/C.3/SR.1096, § 79.

A proposal by the United States at the Second Session of the Commission regarding the enforcement of the rights created by the ICCPR pursuant to Article 2 also sheds light on the intentions of the United States regarding both the question of self-execution and the enforcement of these rights by the courts of the United States. In its proposal, E/CN.4/37, the United States moved to have Article 2 read:

Each High Contracting Party is under an obligation to ensure:

a) that its law secure to all persons under its jurisdiction, including citizens . . ., the enjoyment of these human rights and fundamental freedoms;

b) that any person whose rights or freedoms are violated shall have an effective remedy, whether the violation has been committed by persons acting in an official capacity;

c) that such remedies shall be enforceable by a judiciary whose independence is secured. . . .

Bossuyt, supra note 34, at 49 (emphasis added) (quoting U.N. Doc E/CN.4/37). Although this exact language was not approved, it shows what the United States was attempting to achieve through this treaty.

The provision of effective remedies under Article 2 for violation of the individual rights established by ICCPR was the subject of much discussion and debate, and also reflects the intent of the contracting parties, including the United States, in enacting the ICCPR. The representative of France was of the opinion that "there was no need to specify the obligations of the States parties in the event of a violation of the covenant, since it was obvious that if the States undertook to abide by the covenant, they would have to provide for effective remedies against infringements." E/CN.4SR.125, p. 4(F); Bossuyt, supra note 34, at 64 (discussing Commission on Human Rights, 5th Session (1949), 6th Session (1950), 8th Session (1952)). Great Britain, whose views were eventually generally accepted, argued that "the proper enforcement of the provisions of the covenant depended on the guarantees of the individual's rights against abuse, which [required the assurance of] the following elements: [1] possession of a legal remedy, [2] the granting of this remedy by national authorities and [3] the enforcement of the remedy by the competent authorities." E/CN.4/SR.125, p. 8(GB) (emphasis added); Bossuyt, supra note 34, at 64.

These views were reinforced in the discussion of Paragraph 2(b) of Article 2. As originally proposed, this provision stated that any person whose rights were violated would have his or her rights determined by competent "political, administrative, or judicial" authorities. Bossuyt, supra note 34, at 67 (quoting A12929, Ch. V, § 16). It was the opinion of some — including France, Egypt, Denmark, and the United States — that "all remedy should be provided through recourse to independent judicial authorities, which would include, where that was the case, administrative tribunals." Bossuyt, supra note 34, at 67 (citing E/CN.4/SR 195 § 6(USA)).

It should be noted that in many European legal systems and those modeled after them, including France, administrative tribunals play an important role in deciding what we normally consider constitutional law in the United States.

It was considered particularly undesirable that a person whose freedoms had been violated, in all probability by the political authorities of the State, should have his right to a remedy determined by a political organ, since the very same organ that had violated his right might be the one that was adjudicating his claim for a remedy.

Id. (citing E/CN.4/SR.138, § 74-75 (USA)).

This concern was again repeated before the Third Committee's 18th Session in 1983 by the representatives from Great Britain, Italy, India and Australia, who sought to keep the remedies "expressly reserved to an independent judiciary, and where applicable, to administrative tribunals." id. at 69. Saudi Arabia then proposed substituting "legislative" for "political" in the original language, A/C.3/SR.1259, § 3 (SA) § 10 (Chairman); Bossuyt, supra note 34, at 69. After some parliamentary maneuvering, Saudi Arabia's proposal was amended to read "competent judicial, administrative, or legislative or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of a judicial remedy," thus allowing a remedy to be granted by the executive, as well as by action of parliamentary commissions or ad hoc legislation designed to remedy a specific wrong, yet avoiding the use of the word "political." A/C.3/SR.1259, § 12 (SA), § 24(UAR); Bossuyt, supra note 34, at 69. This language was adopted and passed at the 1259th meeting of the Third Committee by a vote of 87 votes to none against, with one abstention, id.

The negotiating history of the ICCPR reinforces the clear language of this treaty establishing individual, enforceable rights on behalf of persons situated as are Appellants, and obligating the United States to provide a judicial remedy in its courts to vindicate their violation. To conclude otherwise is to ignore the plain words of the treaty as well as our basic constitutional duty to interpret international agreements as the Law of the Land.

(2) The reliance on the political question doctrine is misplaced

The political question doctrine is a judge-made rule of abstention from deciding issues that are deemed "political" in nature, and which the courts conclude should be resolved by the political processes with a minimum of judicial input. The doctrine has been much criticized because it is applied ad hoc and is, in effect, a brand of judicial activism that abdicates the courts' constitutional responsibility to pass upon constitutional questions. See Thomas M. Franck, Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs ? 4-5 (1992) ("[T]he `political-question doctrine' is not only not required by[,] but is wholly incompatible with American constitutional theory[.]"); Rachel E. Barkow, More Supreme Than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237, 334 (2002) ("Because the prudential doctrine allows the Court to avoid deciding a case without a textual analysis of the Constitution, it is this aspect of the political question doctrine that seems to be an unjustified dereliction of the Court's duty to `say what the law is.'"); Michel J. Glennon, Foreign Affairs and the Political Question Doctrine, 83 Am. J. Int'l L. 814, 815 (1989) ("In modern American society, these justifications for judicial abstention [under the political question doctrine] seem to be calls for judicial abdication."); Louis Henkin, Is There a "Political Question" Doctrine?, 85 Yale L.J. 597, 601 (1976) ("The cases which are supposed to have established the political question doctrine required no such extra-ordinary abstention from judicial review; they called only for the ordinary respect by the courts for the political domain.").

Irrespective of these well-earned criticisms, raising the political question doctrine in this case is a red herring. Any political questions of relevance to this case have already been decided by the appropriate political branches: the Executive, which negotiated the terms of ICCPR, and Congress, which through the Senate exercised its constitutional prerogative of granting its advice and consent to this treaty. It is now the courts' nondelegable duty to interpret what their actions mean See U.S. Const., art. III, § 2, cl. 1.

The avoidance of those issues by referring Appellants to the "political processes" as the only source for the remedies they seek is the same Catch-22 double-talk which the courts have engaged in for over a century, to their everlasting shame.

(3) Appellants present a justiciable "case and controversy" which this court must decide

Finally, redressability is no bar to jurisdiction in this case. Appellants seek relief under the Declaratory Judgment Act (DJA), which provides that, "[i]n a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." 28 U.S.C. § 2201(a) (emphasis supplied); see also Larson v. Valente, 456 U.S. 228, 243, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) ("[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself," but "[h]e need not show that a favorable decision will relieve his every injury."); Connecticut v. Am. Elec. Power Co. Inc., 582 F.3d 309, 348 (2d Cir. 2009) ("[T]hat courts could provide some measure of relief would suffice to show redress-ability. . . . "). "[T]he phrase `case of actual controversy' in the [DJA] refers to the type of `Cases' and `Controversies' that are justiciable under Article III." Medlmmune, Inc. v. Genentech, Inc. 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) (citing Aetna Life Ins. Co. v. Hawortk, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617 (1937)). To establish that an "actual controversy" exists, therefore, Appellants must show, among other things, that it is "`likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (holding that a "`plaintiff must allege [1] personal injury [2] fairly traceable to the defendant's allegedly unlawful conduct and [3] likely to be redressed by the requested relief") (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). At the end of the day, redressability is a practical inquiry, and courts should be mindful that limitations on jurisdiction should be read "narrowly." Utah v. Evans, 536 U.S. 452, 463, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002).

Though couched in the language of Article III of the Constitution, redressability is yet another judicially-created doctrine. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 124, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (Stevens, J., dissenting) (" `Redressability,' of course, does not appear anywhere in the text of the Constitution. Instead, it is a judicial creation of the past 25 years. . . .") .

Because Appellants are seeking to vindicate their rights under the ICCPR — which, as discussed, has become domestic law through operation of the Supremacy Clause and gives rise to enforceable, individual rights — and because it is beyond dispute that the ongoing denial of those rights is traceable to actions and inactions of the United States, the other elements of standing are clearly satisfied in this case. See, e.g. United States v. Thompson, 928 F.2d 1060, 1066 (11th Cir. 1991) (explaining that a self-executing treaty confers standing on "an individual citizen to . . . protest a violation of the treaty").

To be sure, this Court cannot compel Congress to pass legislation to provide the citizens of Puerto Rico with equal voting rights. But the effect of the ICCPR's self-executing provisions is that Congress and the President have already granted the United States citizens residing in Puerto Rico such rights. Furthermore, and more to the point, the United States has agreed "to take the necessary steps, in accordance with its constitutional processes and with the provisions of the [ICCPR], to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the [ICCPR]." See ICCPR art. 2(2). It is beyond cavil, nor does the government dispute, that no such steps have been taken by the United States; in fact, the government claims the U.S. does not have to take them because the ICCPR is ineffective and legally nonexistent. Thus, by admission the United States is in flagrant violation of its international commitments as well as the Law of the Land.

We have the authority to declare as much. See Franklin v. Massachusetts, 505 U.S. 788, 802, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992). In Franklin, a plaintiff challenged the method used by the Secretary of Commerce to calculate the population of each state for census purposes as "arbitrary and capricious" and contrary to certain statutes. Id. at 790-91, 112 S.Ct. 2767. In so doing, he sought to require the Secretary to recalculate the population numbers, in the hope that this recalculation would ultimately lead to a reapportionment that would assign an additional Representative to his own State. Id. The Court found that the plaintiff had stated a redressable injury. As a plurality of the Court explained, "even though [the Secretary] cannot herself change the reapportionment, she has an interest in litigating its accuracy," and therefore, as a practical matter, "we may assume it is substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision . . . even though they would not be directly bound by such a determination." Id. at 803, 112 S.Ct. 2767 (opinion of O'Connor, J.); see also Evans, 536 U.S. at 460, 122 S.Ct. 2191 (noting that, in Franklin, "[e]ight Members of the Court found that the plaintiff had standing").

Later, in Evans, the Court revisited this topic when the State of Utah sought an injunction ordering the Secretary of Commerce to recalculate the 2000 census numbers and recertify the official result, believing that "the Secretary's recertification, as a practical matter, would likely lead to a new, more favorable, apportionment of Representatives." 536 U.S. at 460-61, 122 S.Ct. 2191. The Supreme Court rejected the argument that the plaintiff lacked a redressable injury because "court-ordered relief could not extend beyond the Secretary's report to re-apportionment itself, explaining:

[W]e believe it likely that Utah's victory here would bring about the ultimate relief that Utah seeks. Victory would mean a declaration leading, or an injunction requiring, the Secretary to substitute a new "report" for the old one. Should the new report contain a different conclusion about the relative populations of North Carolina and Utah, the relevant calculations and consequent apportionment-related steps would be purely mechanical. . . . Under these circumstances, it would seem, as in Franklin, "substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision. . . ."

Moreover, in terms of our "standing" precedent, the courts would have ordered a change in a legal status (that of the "report"), and the practical consequence of that change would amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered. We have found standing in similar circumstances.

Id. at 463-64, 122 S.Ct. 2191 (citations omitted); Harrell v. Flo. Bar, 608 F.3d 1241, 1260 (11th Cir. 2010) ("Redressability is established . . . when a favorable decision "would amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered. . . .").

Here, too, the Appellants have sought a declaration of their rights, challenging the failure of the United States to give effect to the rights established under the ICCPR. A declaration to that end, as in Franklin and Evans, would have the practical effect of making it "substantially likely that the President and other executive and congressional officials would abide" by our interpretation of the law and proceed to act favorably on Appellants' claims thereafter. Evans, 536 U.S. at 460, 122 S.Ct. 2191 (quoting Franklin, 505 U.S. at 803, 112 S.Ct. 2767). Likewise, such a declaration would effect "a change in a legal status" which would significantly increase the likelihood that the Appellants would obtain relief that directly redresses the injury suffered. Id. at 464, 122 S.Ct. 2191.

Additionally, Appellants assert that they have been injured by the failure of the United States to provide them with an "effective remedy" to cure their ongoing political inequality, pursuant to Article 2 of the ICCPR. They seek a declaration that the United States is in violation of this independent obligation. One form of relief available under the DJA is to "`clarify[] and settl[e] the legal relations in issue.'" Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 594 (4th Cir. 2004) (quoting Aetna Casualty Surety Co. v. Quarks, 92 F.2d 321, 325 (4th Cir. 1937)). In Powell v. McCormack, for example, an elected Member of Congress sued various officials in the House of Representatives, who had voted to exclude him from taking his seat in the 90th Congress as a result of various improprieties. 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). The Supreme Court explicitly rejected the argument made by House officials that the case was nonjusticiable because the plaintiff had "asked for coercive relief against the officers of the House," and "federal courts [could not] issue mandamus or injunctions compelling officers or employees of the House to perform specific official acts." Id. at 517, 89 S.Ct. 1944. Rather, the Court held that regardless of whether "coercive relief was available to the petitioners, the case was justiciable because the DJA "provides that a district court may `declare the rights . . . of any interested party . . . whether or not further relief is or could be sought.'" Id. Likewise in this case, whether or not "coercive relief is otherwise available, a declaration that the United States is in default of its obligations under the ICCPR to provide Appellants with a means to redress their lack of political equality would, by clarifying the United States' obligations, result in a significant increase in the likelihood that the Appellants would obtain the remedy they seek. See Evans, 536 U.S. at 464, 122 S.Ct. 2191 (citing FEC v. Akins, 524 U.S. 11, 25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (standing to obtain court determination that the organization was a `political committee' where that determination would make agency more likely to require reporting, despite agency's power not to order reporting); Bennett v. Spear, 520 U.S. 154, 169-171, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (similar with respect to determination of the lawfulness of an agency's biological report); Metro. Washington Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 264-265, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991) (similar in respect to determination that transfer of airport control to local agency is unlawful)).

Past experience suggests that the Supreme Court's presumption that executive officials will abide by an authoritative declaration of United States law is a sound one. See Juda v. United States, 13 Cl.Ct. 667 (1987) (" Juda II "); see also Juda v. United States, 6 Cl.Ct. 441 (1984) (" Juda I"). In Juda II, the court, invoking its duty to interpret international agreements, persuaded the political branches of government to take action consistent with those agreements. The issue in that case was whether, as a matter of international law, the United States could unilaterally terminate its trusteeship over the Marshall Islands and other Pacific island territories, without securing the prior approval of the UN Security Council. After stating what is by now an axiomatic constitutional rule, namely, that "[c]ourts of the United States have final authority to interpret an international agreement for purposes of applying it as law in the United States," Juda II, 13 Cl.Ct. at 678, the court held that the actions of the President and Congress to resolve the status of the Pacific Island Trust Territories had resulted in de facto, but not de jure, compliance by the United States with its treaty obligations. Id. at 682.

The ruling granted declaratory relief to the citizens of the trust territory who had challenged the validity of Presidential Proclamation 5564, which had pronounced that the trusteeship was no longer in effect. Presidential Proclamation 556k, sec. 1, Fed.Reg. 51, at 40399 (November 1986). Although the court did not grant, on other grounds, the specific relief requested by the trust territory citizens, the court agreed that the Proclamation was not in compliance with international obligations of the United States, including the UN Charter. Juda II, 13 Cl.Ct. at 678-682.

In response to this declaration, the United States took steps to comply with these international obligations, and eventually sought and received the UN Security Council's approval for its actions on November 10, 1992. In the intervening seven-year period, the United States complied with the Court's disposition of the case, notwithstanding the fact that the Court did not retain jurisdiction over the controversy. The court also rejected the government's argument to the effect that the Insular Cases precluded the application of the Constitution to the Trust Territory, concluding instead that, even in a territory with a non-citizen population, governed under a treaty with the United Nations rather than as a result of annexation (as in the case of Puerto Rico), "[t]he concept that the Bill of Rights and other constitutional protections against arbitrary government are to be applied selectively on a territorial basis cannot be justified in the 1980's." Juda I, 6 Cl.Ct. 441, 458 (1984). This is good advice which unfortunately has fallen on deaf ears in this Circuit.

De Lima v. Bidwell, 182 U.S. 1, 21 S.Ct. 743, 45 L.Ed. 1041 (1901); Goetze v. United States, 182 U.S. 221, 21 S.Ct. 742, 45 L.Ed. 1065 (1901); Dooley v. United States, 182 U.S. 222, 21 S.Ct. 762, 45 L.Ed. 1074 (1901); Armstrong v. United States, 182 U.S. 243, 21 S.Ct. 827, 45 L.Ed. 1086 (1901); Downes, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088; Huus v. New York Porto Rico Steamship Co., 182 U.S. 392, 21 S.Ct. 827, 45 L.Ed. 1146 (1901).

As the Juda cases demonstrate, the argument made in the present controversy, that a declaratory judgment may not proceed because there is a lack of an effective remedy, creating a non-justiciable case and controversy because there is no assurance that the government or Congress will take any action based on such a declaration, is unavailing. As Juda shows, the contention that the government would ignore a judgment declaring it in violation of its ICCPR obligations, is, at best, entirely speculative, and speaks rather poorly of what the executive branch thinks of the rule of law in this country.

In contrast, there is nothing speculative or hypothetical about the controversy presented in this case. Cf. Defenders of Wild-life, 504 U.S. at 564 n. 2, 112 S.Ct. 2130 (injury not redressable if "the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiffs own control"); City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (denying declaratory relief that would bar the use of chokeholds by police, because plaintiff could not establish the likelihood that he would be personally subjected to a choke-hold in the future, even though he had been so subjected in the past); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (ultimate relief sought "speculative"); see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 109, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ("Because respondent alleges only past infractions of [the Emergency Planning and Community Right-to-Know Act of 1986], and not a continuing violation or the likelihood of a future violation, injunctive relief will not redress its injury.").

III. Conclusion

As the Supreme Court has recognized:

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.

Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). There can only be one class of U.S. citizenship, see U.S. Const., amend. XIV. Allowing the creation of a second class of U.S. citizens on a permanent, or even indefinite, basis is not a proper exercise of the power of Congress under the Territorial Clause or the Naturalization Clause.

See also Bush v. Gore, 531 U.S. 98, 104, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000); Burson v. Freeman, 504 U.S. 191, 198, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992); Tashjian v. Republican Party, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986); Buckley v. Valeo, 424 U.S. 1, 49, 96 S.Ct. 612, 46 L.Ed.2d 659 n. 55 (1976); Lubin v. Panish , 415 U.S. 709, 721, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); City of Phoenix, Ariz. v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 667, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Reynolds, 377 U.S. at 561-62, 84 S.Ct. 1362.

See U.S. Const., art. IV, § 3, cl. 2 ("The ongress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.").

See U.S. Const., amend. XIV, § 1 ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.").

The fact is that the United States assumed obligations under the ICCPR that were undoubtedly aimed at the correction of inequality, and in particular, political inequality, among its citizenry. There is no question, nor does the government dispute, that the United States has not complied with its obligations under the ICCPR to recognize these rights, and to provide remedies for their enforcement when, and where, appropriate. It is the courts' constitutional duty to pass upon the legal significance of the United States' failure to act in this respect.

Can it be seriously argued that the solemn act by the United States of entering into this international agreement with well over half of the nations of this World has no legal significance? Can the word of the United States be so valueless at a time when we are imposing our democratic views throughout the world at such high personal and material cost to our Nation? I refuse to accept such a cynical view of what is the Law of Our Land.

In the case of the centennial inequality perpetrated upon the United States citizens of Puerto Rico, the political question doctrine, issues of stare decisis, matters of circuit precedent, allegations of lack of redressability, contentions of non-self execution, and other such judge-made excuses for reaching predetermined outcomes must be put aside, and this court must take the action, long overdue here, that was provided in Carotene Products: a "more searching judicial inquiry." Carolene Prod, 304 U.S. at 153 n. 4, 58 S.Ct. 778. Only then will this court be justified in putting the constitutional issues raised by Appellants to rest.

I would issue a declaratory judgement to the effect that Appellants' rights under domestic law (arising from the ICCPR by way of the Supremacy Clause) have been violated by the failure of the United States to take any action to grant Appellants equal voting rights to those of other citizens of the United States, and further I would declare that Appellants' rights have been violated by the failure of the United States to meet its obligations under the treaty to provide Appellants with an "effective remedy" to cure their current lack of representation.

I dissent.