OpenForum – a blog by the Health and Human Rights community

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 August 11, Bill Clinton announced his appointment of Paul Farmer as the UN Deputy Special Envoy for Haiti. Clinton, who was appointed as the UN Special Envoy to Haiti in May of this year, said that Farmer’s “credibility both among the people of Haiti and in the international community will be a tremendous asset to our efforts as we work with the government and people of Haiti to improve health care, strengthen education, and create economic opportunity.”

This appointment will complement Farmer’s already extensive involvement in Haiti. In 1983, Farmer was part of the group that started a community-based health project in Cange, a project that lead to the establishment of the Clinique Bon Sauveur in 1985 and the founding of Partners in Health (PIH) in 1987. As Deputy Special Envoy, Farmer will aid Clinton in his efforts to support social and economic development in Haiti.

In addition to his work with PIH, Farmer is also Chair of the Department of Global Health and Social Medicine at Harvard Medical School, Chief of the Division of Global Health Equity at Brigham and Women’s Hospital, and Editor-in-Chief of the FXB Center’s journal, Health and Human Rights.

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

A former child soldier from Uganda, Grace Akallo, recently spoke at the UN Security Council about her experiences being abducted, sexually assaulted, and forced to fight for the Lord’s Resistance Army (LRA) at the age of 16. She described being sent into battle with an AK47 and forced to kill other children who attempted escape. The Security Council is now discussing using stronger methods to stop “repeat offenders” from recruiting children.

It is estimated that 250,000 children, some age 10 or younger, are currently recruited into armed conflicts around the world and used as soldiers, guards, messengers, or sex slaves. Such recruitment of children occurs most often in conflict zones such as Colombia, Democratic Republic of Congo, Uganda, and Sri Lanka. The use of child soldiers has been officially prohibited by a UN treaty ratified by 126 countries since 2002. Children in conflict areas are guaranteed special protection under the Optional Protocol to the Convention on the Rights of the Child and the Worst Forms of Child Labour Convention.

It is no surprise that rehabilitating child soldiers is a difficult and lengthy process. Because of the severe trauma they suffer, children who have been in combat require extensive long-term support to be re-integrated into communities, says UNICEF spokesman James Elder. He explains that child combatants “live in a theatre of violence and suffering…Instead of hope, fear defines their childhood.” Read more

A recent editorial by the Lancet asserts that pharmaceutical companies have the responsibility to improve access to health, and that “companies must be better held to public account in relation to those responsibilities.” These comments stem from a recent UN human rights report on pharmaceutical company GlaxoSmithKline’s (GSK) policies concerning the right to health.

UN Special Rapporteur Paul Hunt visited GSK in 2008 to assess its current practices with regards to its responsibility in improving access to medicines. Hunt was invited to complete his assessment by GSK, which is one of the largest research-based pharmaceutical companies in the world. It has been both lauded and criticized for its attitude and actions towards developing nations and the poor’s access to medicine. In 2008, it was ranked first out of 20 pharmaceutical companies in enhancing access to medicines by an independent foundation. It is one of the few pharmaceutical companies to promote research on diseases primarily affecting developing countries, such as malaria and tuberculosis. However, it was also involved in the now infamous lawsuit filed by over 30 pharmaceutical companies in 1998 against the South African government challenging their Medicines and Related Substance Act. This Act allowed compulsory licensing and parallel importation, and was intended to reduce the high cost of HIV/AIDS drugs in South Africa. The companies eventually dropped their lawsuit in response to significant international criticism. Read more

GlaxoSmithKline (GSK), the world’s second-largest pharmaceutical company, has announced in its annual corporate responsibility report that it will donate more than 800 patents to a pool that will be open to all researchers trying to develop medicines for 16 neglected diseases, according to the Wall Street Journal. It also pledged to cut the price of 110 patented medicines in LDCs, the world’s poorest 50 nations.

Balancing intellectual property rights with global health considerations has long been a contentious issue in public health. The $800bn pharmaceutical industry has been criticized in recent years for putting profits ahead of the needs of people in the developing world. This announcement marks an important step toward increasing access to medicine in the developing world, and following through with several of the recommendations made by Paul Hunt, U.N. Special Rapporteur on the right to health from 2002-2008. Two years ago, he estimated that 2 billion people don’t have access to essential drugs, and urged that drugmakers support research for neglected diseases and cut prices in poor countries, among other recommendations in his guidelines for pharmaceuticals. Finally, a step in the right direction.

Read more

“Airborne” Highlights MDR-, XDR- TB Cases

Airborne: A Journey into the Challenges and Solutions to Stopping MDR-TB and XDR-TB is a powerful new book written by John Donnelly that features interviews and images to put a human face on the TB epidemic across the world. In her foreword, WHO Director-General Margaret Chan wrote, “I urge you to read the personal stories collected in AIRBORNE. These are human tragedies that should never have happened. But these are also stories about the uplifting success possible when the right elements are in place.”

——

Australian Abortion-Aid Ban Lifted

A thirteen-year ban in Australia on providing foreign aid for abortions has been lifted and Australia will provide  funding of up to $15 million for reproductive health activities to help reduce maternal deaths across the world.

——

$50 Million US Contribution to UNFPA

President Obama has recently signed legislation to provide $50 million to the United Nations Population Fund (UNFPA) to improve the health of women and children and reduce poverty throughout the world.

——

US Capital Blighted by HIV/AIDS

The U.S. Capital has an HIV/AIDS rate on par with or worse than some African nations the city’s health department reports.

——

US Urged to Fix Iraqi Refugee ‘Mess’ It Created

As the Iraq war enters its 7th year, the United States is urged to provide aid to Iraqi refugees displaced by the fighting.

——

Read more