The Charade of US Ratification of International Human Rights Treaties

It is sadly academic to ask whether international human rights law should trump US domestic law. That is because, on the few occasions when the US government has ratified a human rights treaty, it has done so in a way designed to preclude the treaty from having any domestic effect. Washington pretends to join the international human rights system, but it refuses to permit this system to improve the rights of US citizens. This approach reflects an attitude toward international human rights law of fear and arrogance-fear that international standards might constrain the unfettered latitude of the global superpower, and arrogance in the conviction that the United States, with its long and proud history of domestic rights protections, has nothing to learn on this subject from the rest of the world. As other governments increasingly see through this short-sighted view of international human rights law, it weakens America's voice as a principled defender of human rights around the world and diminishes America's moral influence and stature. The US government's approach to the ratification of international human rights treaties is unique. Once the government signs a treaty, the pact is sent to Justice Department lawyers who comb through it looking for any requirement that in their view might be more protective of US citizens' rights than pre-existing US law. In each case, a reservation, declaration, or understanding is drafted to negate the additional rights protection. These qualifications are then submitted to the Senate as part of the ratification package.1 For example, Article 6(5) of the International Covenant on Civil and Political Rights ("ICCPR") prohibits the imposition of the death penalty "for crimes committed by persons below eighteen years of age."2 To preserve the power to execute such juvenile offenders, the US government insisted on a reservation effectively negating this provision.3 In taking this extraordinary step, the United States ensured its place with the mere handful of governments worldwide that persist in the barbaric practice of executing offenders who were children when they committed their crimes-such paragons of human rights virtue as Iran, Nigeria, Pakistan, Saudi Arabia and Yemen.4 Indeed, this US reservation was particularly egregious because it concerned a right-the right to life-from which the ICCPR precludes derogation.5 Similarly, the US government entered a reservation limiting the conduct prohibited by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Convention"). The problem, from the government's perspective, was that Article 16 of the convention precludes not only "cruel and unusual punishments"-the prohibition contained in the Eighth Amendment of the US Constitution-but also "degrading treatment." To avoid any possibility of this provision being interpreted to impose a higher official standard of conduct, the US government adopted a reservation stating that the Torture Convention prohibits no more than the "cruel and unusual punishment" provision of the US Constitution.6 After this exercise of stripping human rights treaties of any protections that might add to US law, the government takes out a sort of insurance policy against the possibility that the Justice Department lawyers might have made a mistake. To ensure that some new hidden right is not lurking in parts of the treaty for which no reservation, declaration or understanding was entered, the US government, first declares that the treaty is "not self-executing"7 meaning that it has no force of law without so-called implementing legislation. This step is not necessarily objectionable in itself, since it ensures that new rights are endorsed by both houses of Congress through the traditional legislative process, rather than through the unicameral ratification process, which requires the consent of only the Senate. But then, the government announces that implementing legislation is unnecessary because, according to the Justice Department lawyers, all the rights for which reservations, declarations or understandings were not registered are already protected by US law. …