19/ At the 1413th
meeting (fifty-third session) held on 6 April 1995.
267. The Committee expresses
its appreciation at the high quality of the report submitted by the
State party, which was detailed, informative and drafted in accordance
with the guidelines. The Committee regrets, however, that, while containing
comprehensive information on the laws and regulations giving effect
to the rights provided in the Covenant at the federal level, the report
contained few references to the implementation of Covenant rights at
the state level.
268. The Committee appreciates
the participation of a high-level delegation which included a substantial
number of experts in various fields relating to the protection of human
rights in the country. The detailed information provided by the delegation
in its introduction of the report, as well as the comprehensive and
well-structured replies provided to questions raised by members, contributed
to making the dialogue extremely constructive and fruitful.
269. The Committee notes
with appreciation that the Government gave publicity to its report,
thus enabling non-governmental organizations to become aware of its
contents and to make known their particular concerns. In addition, a
number of representatives of these organizations were present during
the Committee's consideration of the report.
2. Factors and difficulties
affecting the implementation of the Covenant
270. The Committee notes
that, despite the existence of laws outlawing discrimination, there
persist within society discriminatory attitudes and prejudices based
on race or gender. Furthermore, the effects of past discriminations
in society have not yet been fully eradicated. This makes it difficult
to ensure the full enjoyment of the rights provided for under the Covenant
to everyone within the State party's jurisdiction. The rise in crime
and violence also affects the enjoyment of the rights provided for in
271. The Committee also
notes that under the federal system prevailing in the United States,
the states of the union retain extensive jurisdiction over the application
of criminal and family law in particular. This factor, coupled with
the absence of formal mechanisms between the federal and state levels
to ensure appropriate implementation of the Covenant rights by legislative
or other measures may lead to a somewhat unsatisfactory application
of the Covenant throughout the country.
3. Positive aspects
272. The Committee recognizes
the existence of effective protection of human rights available to individuals
under the Bill of Rights and federal laws. The Committee notes with
satisfaction the rich tradition and the constitutional framework for
the protection of human rights and freedoms in the United States.
273. The Committee notes
with satisfaction that the United States has recently ratified or acceded
to some international human rights instruments, including the Covenant,
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment and the Convention on the Elimination of All
Forms of Racial Discrimination. These ratifications reflect a welcome
trend towards acceptance of international scrutiny, supervision and
control of the application of universal human rights norms at the domestic
274. The Committee welcomes
the efforts of the Federal Government to take measures at the legislative,
judicial and administrative levels to ensure that the states of the
union provide human rights and fundamental freedoms. It further appreciates
the expression of readiness by the Government to take such necessary
further measures to ensure that the states of the union implement the
rights guaranteed by the Covenant.
275. The Committee notes
with satisfaction that in the first statement of understanding made
at the time of ratification the principle of non-discrimination is construed
by the Government as not permitting distinctions which would not be
legitimate under the Covenant.
276. The Committee takes
note of the position expressed by the delegation that, notwithstanding
the non-self-executing declaration of the United States, American courts
are not prevented from seeking guidance from the Covenant in interpreting
277. The Committee further
notes with satisfaction the assurances of the Government that its declaration
regarding the federal system is not a reservation and is not intended
to affect the international obligations of the United States.
4. Principal subjects of concern
278. The Committee has taken
note of the concerns addressed by the delegation in writing to its Chairman
about the Committee's General Comment No. 24 (52) on issues relating
to reservations made upon ratification or accession to the Covenant
or the Optional Protocols thereto (CCPR/C/21/Rev.1/Add.6). Attention
is drawn to the observations made by the Chairman of the Committee at
the 1406th meeting, on 31 March 1995 (CCPR/C/SR.1406).
279. The Committee regrets
the extent of the State party's reservations, declarations and understandings
to the Covenant. It believes that, taken together, they intended to
ensure that the United States has accepted only what is already the
law of the United States. The Committee is also particularly concerned
at reservations to article 6, paragraph 5, and article 7 of the Covenant,
which it believes to be incompatible with the object and purpose of
280. The Committee regrets
that members of the judiciary at the federal, state and local levels
have not been fully made aware of the obligations undertaken by the
State party under the Covenant, and that judicial continuing education
programmes do not include knowledge of the Covenant and discussion on
its implementation. Whether or not courts of the United States eventually
declare the Covenant to be non-self-executing, information about its
provisions should be provided to the judiciary.
281. The Committee is concerned
about the excessive number of offences punishable by the death penalty
in a number of states, the number of death sentences handed down by
courts, and the long stay on death row which, in specific instances,
may amount to a breach of article 7 of the Covenant. It deplores the
recent expansion of the death penalty under federal law and the re-establishment
of the death penalty in certain states. It also deplores provisions
in the legislation of a number of states which allow the death penalty
to be pronounced for crimes committed by persons under 18 and the actual
instances where such sentences have been pronounced and executed. It
also regrets that, in some cases, there appears to have been lack of
protection from the death penalty of those mentally retarded.
282. The Committee is concerned
at the reportedly large number of persons killed, wounded or subjected
to ill-treatment by members of the police force in the purported discharge
of their duties. It also regrets the easy availability of firearms to
the public and the fact that federal and state legislation is not stringent
enough in that connection to secure the protection and enjoyment of
the right to life and security of the individual guaranteed under the
283. The Committee is concerned
that excludable aliens are dealt with by lower standards of due process
than other aliens and, in particular, that those who cannot be deported
or extradited may be held in detention indefinitely. The situation of
a number of asylum-seekers and refugees is also a matter of concern
to the Committee.
284. The Committee does
not share the view expressed by the Government that the Covenant lacks
extraterritorial reach under all circumstances. Such a view is contrary
to the consistent interpretation of the Committee on this subject, that,
in special circumstances, persons may fall under the subject-matter
jurisdiction of a State party even when outside that State's territory.
285. The Committee is concerned
about conditions of detention of persons deprived of liberty in federal
or state prisons, particularly with regard to planned measures which
would lead to further overcrowding of detention centres. The Committee
is also concerned at the practice which allows male prison officers
access in women's detention centres and which has led to serious allegations
of sexual abuse of women and the invasion of their privacy. The Committee
is particularly concerned at the conditions of detention in certain
maximum security prisons, which are incompatible with article 10 of
the Covenant and run counter to the United Nations Standard Minimum
Rules for the Treatment of Prisoners and the Code of Conduct for Law
286. The Committee is concerned
that, in some states, non-therapeutic research may be conducted on minors
or mentally-ill patients on the basis of surrogate consent in violation
of the provisions in article 7 of the Covenant.
287. The Committee is concerned
at the serious infringement of private life in some states which classify
as a criminal offence sexual relations between adult consenting partners
of the same sex carried out in private, and the consequences thereof
for their enjoyment of other human rights without discrimination.
288. The Committee is concerned
about the impact which the current system of election of judges may,
in a few states, have on the implementation of the rights provided under
article 14 of the Covenant and welcomes the efforts of a number of states
in the adoption of a merit-selection system. It is also concerned about
the fact that in many rural areas justice is administered by unqualified
and untrained persons. The Committee also notes the lack of effective
measures to ensure that indigent defendants in serious criminal proceedings,
particularly in state courts, are represented by competent counsel.
289. The Committee welcomes
the significant efforts made in ensuring to everyone the right to vote
but is concerned at the considerable financial costs that adversely
affect the right of persons to be candidates at elections.
290. The Committee is concerned
that aboriginal rights of Native Americans may, in law, be extinguished
by Congress. It is also concerned by the high incidence of poverty,
sickness and alcoholism among Native Americans, notwithstanding some
improvements achieved with the Self-Governance Demonstration Project.
291. The Committee notes
with concern that information provided in the core document reveals
that disproportionate numbers of Native Americans, African Americans,
Hispanics and single parent families headed by women live below the
poverty line and that one in four children under six live in poverty.
It is concerned that poverty and lack of access to education adversely
affect persons belonging to these groups in their ability to enjoy rights
under the Covenant on the basis of equality.
5. Suggestions and recommendations
292. The Committee recommends
that the State party review its reservations, declarations and understandings
with a view to withdrawing them, in particular reservations to article
6, paragraph 5, and article 7 of the Covenant.
293. The Committee hopes
that the Government of the United States will consider becoming a party
to the First Optional Protocol to the Covenant.
294. The Committee recommends
that appropriate inter-federal and state institutional mechanisms be
established for the review of existing as well as proposed legislation
and other measures with a view to achieving full implementation of the
Covenant, including its reporting obligations.
295. The Committee emphasizes
the need for the Government to increase its efforts to prevent and eliminate
persisting discriminatory attitudes and prejudices against persons belonging
to minority groups and women including, where appropriate, through the
adoption of affirmative action. State legislation which is not yet in
full compliance with the non-discrimination articles of the Covenant
should be brought systematically into line with them as soon as possible.
296. The Committee urges
the State party to revise federal and state legislation with a view
to restricting the number of offences carrying the death penalty strictly
to the most serious crimes, in conformity with article 6 of the Covenant
and with a view eventually to abolishing it. It exhorts the authorities
to take appropriate steps to ensure that persons are not sentenced to
death for crimes committed before they were 18. The Committee considers
that the determination of methods of execution must take into account
the prohibition against causing avoidable pain and recommends the State
party to take all necessary steps to ensure respect of article 7 of
297. The Committee urges
the State party to take all necessary measures to prevent any excessive
use of force by the police; that rules and regulations governing the
use of weapons by the police and security forces be in full conformity
with the United Nations Basic Principles on the Use of Force and Firearms
by Law Enforcement Officials; that any violations of these rules be
systematically investigated in order to bring those found to have committed
such acts before the courts; and that those found guilty be punished
and the victims be compensated. Regulations limiting the sale of firearms
to the public should be extended and strengthened.
298. The Committee recommends
that appropriate measures be adopted as soon as possible to ensure to
excludable aliens the same guarantees of due process as are available
to other aliens and guidelines be established which would place limits
on the length of detention of persons who cannot be deported.
299. The Committee expresses
the hope that measures be adopted to bring conditions of detention of
persons deprived of liberty in federal or state prisons in full conformity
with article 10 of the Covenant. Legislative, prosecutorial and judicial
policy in sentencing must take into account that overcrowding in prisons
causes violation of article 10 of the Covenant. Existing legislation
that allows male officers access to women's quarters should be amended
so as to provide at least that they will always be accompanied by women
officers. Conditions of detention in prisons, in particular in maximum
security prisons, should be scrutinized with a view to guaranteeing
that persons deprived of their liberty be treated with humanity and
with respect for the inherent dignity of the human person, and implementing
the United Nations Standard Minimum Rules for the Treatment of Prisoners
and the Code of Conduct for Law Enforcement Officials therein. Appropriate
measures should be adopted to provide speedy and effective remedies
to compensate persons who have been subjected to unlawful or arbitrary
arrests as provided in article 9, paragraph 5, of the Covenant.
300. The Committee recommends
that further measures be taken to amend any federal or state regulation
which allow, in some states, non-therapeutic research to be conducted
on minors or mentally-ill patients on the basis of surrogate consent.
301. The Committee recommends
that the current system in a few states in the appointment of judges
through elections be reconsidered with a view to its replacement by
a system of appointment on merit by an independent body.
302. The Committee recommends
that steps be taken to ensure that previously recognized aboriginal
Native American rights cannot be extinguished. The Committee urges the
Government to ensure that there is a full judicial review in respect
of determinations of federal recognition of tribes. The Self-Governance
Demonstration Project and similar programmes should be strengthened
to continue to fight the high incidence of poverty, sickness and alcoholism
among Native Americans.
303. The Committee expresses
the hope that, when determining whether currently permitted affirmative
action programmes for minorities and women should be withdrawn, the
obligation to provide Covenant's rights in fact as well as in law be
borne in mind.
304. The Committee recommends
that measures be taken to ensure greater public awareness of the provisions
of the Covenant and that the legal profession as well as judicial and
administrative authorities at federal and state levels be made familiar
with these provisions in order to ensure their effective application.