OpenForum – a blog by the Health and Human Rights community

[Editor's note: This is a guest post written by Sujal Parikh.]

On December 22, New Zealand and Belgium became the 25^th and 26^th nations to ratify the Convention on Cluster Munitions (CCM). The convention needs only four more ratifications to achieve the 30-state minimum to enter into force. Once in force, it will enact a ban on the use, stockpiling, production, and transfer of most cluster munitions, which include bombs, missiles, or rockets that open midair to scatter tens to thousands of small submunitions over a wide area. The CCM also requires that states destroy their stockpiles in eight years, clear contaminated land within ten years, and provide victim assistance.

This convention is necessary due to the wide, indiscriminate, and persistent effects of cluster munitions on civilians and communities. Ninety-eight percent of all recorded casualties of cluster munitions are civilians. In several countries, children account for roughly 60% percent of the victims. In 2007 alone, 5,426 casualties were reported due to cluster munitions. Conservative estimates suggest that unexploded submunitions have caused at least 55,000 casualties, though the number may be well over 100,000.

Victims of cluster munitions require medical, mental health, rehabilitation, and vocational services. They sustain burns and blast and shrapnel injuries, often to multiple limbs as well as their chest, abdomen, and face. Victims should also receive rehabilitation services, including mental health care, physical therapy, and prostheses if needed. Many of these services are unavailable or scarce in conflict zones, and the added burden of these patients can overwhelm an already strained health system, especially in post-conflict settings.
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A comment on OpenForum’s August 10^th post on the US ratification of the Convention of the Rights of the Child raised several common misconceptions about US policy on such issues. This presented a good opportunity to speak to these perhaps broadly-held concerns.

First, the US has long used both international agreements and domestic law to govern its citizens — the US has been and continues to be a party to hundreds of international treaties (including UN human rights-based treaties) each year while maintaining the process of creating and enacting domestic laws. In fact, the US is depositary for over 200 international treaties, including the Charter of the United Nations, which first established the UN. American lawmakers rely on both bilateral and multilateral treaties, as well as the domestic legislative process, as tools for governance.

Further, international treaties, as opposed to executive agreements, must be presented to the US Senate, which gives advice and two-thirds of which must support ratification. In that way, the process by which the US ratifies international treaties is as democratic as the practice by which the US makes domestic laws, in that both require the approval of a democratically elected legislative body.

Second, the US has historically considered UN treaties to be “non-self-executing,” meaning that ratification of a treaty does not override existing US law or create new legislation. Further clarification of this policy came from Medellin v. Texas, 552 US (2008), in which the Supreme Court recognized the “distinction between treaties that automatically have effect as domestic law, and those that . . . do not by themselves function as binding federal law” and stated definitively that

while treaties “may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” [cited from Igartúa-De La Rosa v. United States 417 F. 3d 145, 150 (2005)]

Later, the court further states that

[t]he terms of a non-self-executing treaty can become domestic law only in the same way as any other law — through passage of legislation by both Houses of Congress, combined with either the President’s signature or a congressional override of a Presidential veto.

Essentially, an international treaty must be stated to be self-executing in order for the US to consider it to be self-executing, and the normal legislative process must be followed in order to apply the principles of a non-self-executing treaty to domestic policy. As the Supreme Court stated, “[o]nce a treaty is ratified without provisions clearly according it domestic effect,” the domestic application of the treaty is decided by Congress alone. Read more

On July 30, US ambassador Susan Rice signed the UN Convention on the Rights of Persons with Disabilities (CRPD), joining the 141 nations that have already signed the document. The convention ensures the rights of disabled people to “education, health, work, adequate living conditions, freedom of movement, freedom from exploitation and equal recognition before the law”. Ratification is required for a state to be bound to a treaty, meaning that the Senate must now give a two-third majority agreement to join the 62 other countries that have ratified the convention.

Although signing this convention is a positive step toward official recognition of universal human rights principles, the US still remains woefully behind other nations in becoming legally bound to enforcing these human rights. The US has a particularly abysmal rate of ratification of international human rights agreements – of the nine core international human rights treaties created by the UN, only three have been ratified. The only treaties ratified by the US since 1994 have been optional protocols prohibiting the use of children in armed conflict and the sale of children and child prostitution. These protocols are additions to the Convention on the Rights of the Child (CRC), which the US has not ratified. Somalia and the US are the only nations in the world that have not ratified the convention, which is the most widely and rapidly ratified human rights treaty in history. The US has also failed to ratify the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), along with only six other countries, including Iran, Somalia, and Sudan.

Even when the US does sign and ratify treaties, stipulations and alterations have been attached to each convention to impose restrictions on its viability. None of the significant human rights treaties ratified by the US have been accepted “under the guidelines by which it was adopted and enforced by the UN General Assembly.” For example, in the ratification of the International Covenant on Civil and Political Rights, the US maintained the right to impose capital punishment and to try juveniles as adults. Although many countries add stipulations clarifying the role of an international treaty in regard to the nation’s domestic laws, restrictions imposed by the US can make legally enforceable international treaties weak and ineffectual. Read more

International human rights treaties are drafted with the hope of improving the lives of vulnerable groups, with better health often an explicit goal, but does ratification of these treaties have any effect on health? A study published last week in The Lancet suggests that the answer might be no.

To determine if there is a correlation between ratification of human rights treaties and better health, Alexis Palmer and colleagues used statistical analyses to compare health and social indicators between countries that have ratified six key human rights treaties* and those that have not. In addition, they used the available data to determine if these same indicators improved within countries after ratification. In their analysis, they found no significant association between ratification of these treaties and an improvement in health indicators, a result that is disheartening but perhaps not unexpected by those who work in the global health field. The results for social indicators were no more reassuring; ratification was not significantly associated with improvements in social indicators, even though the treaties more directly target these indicators. The authors stress, however, that international human rights treaties are not without value in the pursuit of better global health. These treaties can be – and have been – used as the basis for legal cases focused on the right to health and can be used by NGOs as the basis for advocating policy changes. Read more