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.

Victims of cluster munitions also need assistance with integration back into society. In many affected areas, people living with disabilities face stigmatization, marginalization, and a lack of economic opportunity. Efforts to promote the rights of the disabled — such as those spearheaded by Handicap International — are essential to any long-term approach to addressing the effects of cluster munitions.

Though cluster munitions are often compared to landmines in that they both litter areas after a conflict is over and pose a threat to the health and human rights of individuals and communities, there are notable differences in their effects. Cluster munitions are more likely than landmines to cause multiple injuries per incident, and they are more likely to kill or injure children under the age of 14 due to their small size and bright coloration.

Unexploded cluster submunitions slow humanitarian, recovery, and resettlement efforts after overt hostilities have ended. Humanitarian and relief workers may be unable to enter an area due to cluster munition contamination. In Kosovo, Laos, Vietnam, Afghanistan, and Lebanon, casualties peaked as populations returned home after the conflict ended. Returning populations are injured while attempting to access their houses, farms, pasture land, water supplies, and health facilities. In Afghanistan, many people have been injured by explosive remnants of war (of which cluster munitions are one form) in the past decade, and these deadly devices have deterred people from accessing health services and from sending their children to school.

The short- and long-term effects of armed conflict and political violence continue to undermine the health and human rights of populations around the world. An international ban on cluster munitions will be an important step toward protecting and promoting health and human rights and toward allowing those whose lives are ravaged by wars to farm their fields and walk the streets of their communities without fear.

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.

As neither the Convention on the Rights of the Child nor the Convention on the Elimination of All Forms of Discrimination against Women has language that declares the treaties to be self-executing, they would not be considered so under US domestic law. In order to implement the principles found in treaties, the US must follow the normal state or national legislative processes by which new laws are made. This means that elected legislators will continue to “write and vote on the laws that govern us domestically,” as they have always done.

Finally, the US, along with any nation, is allowed to add individual declarations and reservations to any treaty prior to ratification. In fact, the US added several understandings to the ratification of the Optional Protocol to the Convention on the Rights of the Child:

The United States understands that the United States assumes no obligations under the Convention on the Rights of the Child by becoming a party to the Protocol. . . . The United States understands that nothing in the Protocol establishes a basis for jurisdiction by any international tribunal, including the International Criminal Court.

For the reasons stated above, the claim that the treaty-making process robs the United States of its law-making ability is just not true. The use of implementing legislation and individual declarations protects that right.  That being said, critics claim the use of these policy-making tools waters down the internationally agreed to measures they address and that, when it comes to treaties related to human rights, the United States tends to over-use these tools.

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.

Reasons cited for the US’s refusal to ratify treaties generally concern the power of international law versus that of the US federal and state governments. Those opposed to US ratification of the CRC usually object to how international standards could undermine parent’s rights to raise their children. However, the CRC requires state parties to respect and take into account the “responsibilities, rights and duties of parents,” and ensures whenever possible that a child be cared for and not separated from his or her parents. The failure of the US to ratify this treaty is a source of international embarrassment, as it requires UN delegates from the US to vote against child protection treaties such as the prevention of violence against children, simply because the US is not a party to the CRC. The US are frequently the only UN member state to vote against such treaties.

Similarly, the US is the only industrialized nation that has not ratified CEDAW. Reservations to ratification generally focus on false beliefs that the treaty ensures all women the right to abortion. In fact, the convention does not mention the word “abortion” once, and the US State Department considers the treaty “abortion neutral.” Concerns about the power of international law in enforcing CEDAW are also cited as explanations for why it has not been ratified; however, accepting a convention does not automatically authorize any US laws not already in place.

The US has also failed to accept weapon bans such as the Mine Ban Treaty and the Convention on Cluster Munitions. Although the US government was involved in the creation of the treaty, it requested an exemption for mixed antitank and antipersonnel landmine systems. Other member states rejected the request, believing it would substantially weaken the treaty. Because of this, the US did not sign or ratify the treaty – in fact, the Bush administration stated during his presidency that they had no intention of ever signing it. The US has the largest known stockpile of cluster munitions, and is also a lead user and exporter of these weapons. In March of this year, President Obama signed a law banning the export of cluster bombs, moving the US closer to ratification of the international ban.

The State Department is currently reviewing the CRC and CEDAW, and Obama himself has pledged to try for ratification of several international treaties. If the US wishes to be taken seriously as an international human rights leader, its government must ratify human rights conventions. Only in doing so can the US join other states in their commitment to protecting vulnerable populations and promoting respect for human rights.

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.

This is not the first time researchers have employed quantitative analysis to evaluate the effectiveness of international human rights treaties. In a 2002 article in The Yale Law Journal, Oona A. Hathaway explored the relationship between treaty ratification and human rights ratings. She found “not a single treaty for which ratification seems to be reliably associated with better human rights practices and several for which it appears to be associated with worse practices,” a conclusion that is even more discouraging than that of the Palmer article. Emilie M. Hafner-Burton and Kiyoteru Tsutsui used the same six treaties as Palmer et al. to determine the impact of international treaties on human rights. Like Hathaway, they found evidence that ratification of treaties is correlated with an increase in human rights abuses in some cases. They also found that the higher the number of citizens involved in international NGOs, the more likely the country is to abide by human rights norms. Eric Neumayar echoes this conclusion in another recent paper. Again, we see evidence that human rights treaties are not themselves effective in reducing human rights abuses but do provide a platform upon which NGOs can work, giving NGOs legitimacy on the international stage.

The lack of any significant association between the ratification of human rights treaties and improvements in population health raises serious and often debated questions for human rights and global health practitioners: How can these treaties be used to make real progress in improving health indicators? What more can reasonably be done to enforce the treaties? And the big one: Would the time and resources spent on human rights treaties in their current form be more effective if used elsewhere, especially if widespread enforcement of treaties never becomes a reality?

Your comments and questions on this subject are welcome and encouraged – post a comment and let us know what you think.

*The six treaties examined in the study were the Convention on Rights of the Child; the Covenant on Economic, Social, and Cultural Rights; the Convention on Elimination of Discrimination against Women; the Convention against Torture; the Convention on Elimination of Racial Discrimination; and the Covenant on Civil and Political Rights.

Additional information:

Treaties used in legal arguments for improving public health
The Lancet: Do human rights matter to health?
The Lancet: Getting political: fighting for global health.

Compliance with international treaties
International Organization: Sticks and Stones: Naming and Shaming the Human Rights Enforcement Problem.

Why countries ratify international treaties
Sociological Forum: Global Human Rights and State Sovereignty: State Ratification of International Human Rights Treaties, 1965-2001
International Organization: Political Institutions and Human Rights: Why Dictatorships Enter into the United Nations Convention Against Torture
Journal of Conflict Resolution: Why Do Countries Commit to Human Rights Treaties?

Political systems and health
Epidemiologic Reviews: Epi + demos + cracy: Linking Political Systems and Priorities to the Magnitude of Health Inequities-Evidence, Gaps, and a Research Agenda