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.

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.

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.

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.”

Additionally, the crimes of child soldiers, or of the larger group they belong to, can make community re-integration even more difficult. Their role as combatants entails committing violent crimes, and children sometimes join armies out of a desire for revenge. For example, child soldiers in the LRA “were both brutally abused and abusive, killing attempted escapees, captured soldiers, and civilians”. Because of this, child soldiers are often treated no differently by government forces than adult soldiers. When children are released into society, they can face acts of discrimination or revenge from communities that have been affected by violence. Nations must address the concerns of both child soldiers and their victims in attempts at rehabilitation. Some experts even argue that not prosecuting child soldiers can lead to further human rights violations, as commanders may order children to commit the worst crimes because of their immunity.

Dance/movement therapy (DMT) is one new approach to rehabilitation that recently began in Sierra Leone for the Orphan Boys of Koindu, a group of former child soldiers. A psychosocial counseling team integrated healing and purification rites traditionally done in the area with Western psychological techniques to “foster both acceptance and accountability”.

Education and vocational training are also critical elements of rehabilitation, say many experts. Education provides a means for children to make a living and avoid returning to combat, and enhances community. One former child soldier in Sierra Leone explained: “The community becomes happy when they see us engage in productive activities such as schooling, trading, mining, or farming. However, if you are stubborn and unsettled, they get worried.”

More links:

Child Soldiers Photo Exhibit

UN Security Council Open Debate on Children and Armed Conflict (transcript and video of Grace Akallo’s speech)

Child soldiers fighting in the DRC (video)

Human Rights Watch: Fighting for their Lives

The Red Hand Campaign

Pawn of Politics

Secretary-General calls for “bold action” to end human trafficking

UN: Children and Armed Conflict

FXB Center Research Program on Children and Global Adversity

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.

Paul Hunt’s report noted that, while making strides towards enhancing access to medicines, GSK has not done enough to fulfill its right-to-health responsibility by “tak[ing] all reasonable steps to enhance access to medicines.” His recommendations to GSK included increasing its use of voluntary licensing, which allows for production of cheaper generic drugs, and no longer lobbying against flexibilities in intellectual property laws. He also found that GSK rarely used its accountability mechanisms to assess its progress in right-to-health responsibilities. Hunt called on all pharmaceutical companies to give a much higher priority than they do currently to research and development on diseases of the developing world.

GSK’s response to this report emphasized its contributions to improving healthcare in developing countries, but refused to acknowledge that its work on improving health was “in any way required by international legal norms.” It concluded by stating that the company will review the UN’s report and recommendations “with interest.”

Although GSK believes that the right to health is “not well defined”, numerous international conventions have constructed and clarified the meaning of this right. Lisa Forman recently argued in a Health and Human Rights article that the right to health has “transformative potential with regard to essential medicines,” using the South African case as an example. As the Lancet noted last year, the right to health has been transformed into a “legal instrument” that can be used to hold both individual states and the international community accountable for providing the highest attainable standard of health. For example, in 2008, the UN created guidelines for pharmaceutical companies in fulfilling their responsibility to fulfilling the right to health. These recommendations noted that many of the obstacles that states face in providing the right to health were created by pharmaceutical companies. It also defined the actions that pharmaceutical companies must take to realize their responsibilities in terms of human rights. The responsibility of pharmaceutical companies to improve access to health has additionally been affirmed in the Millennium Development Goals produced by the UN: a target in developing global partnerships involves working with pharmaceutical companies to “provide access to affordable essential drugs in developing countries.”

It seems, then, that the responsibilities of pharmaceutical companies in terms of a right to health have become well-defined. These obligations need to be internationally enforced to ensure that companies fulfill their responsibility to improve health globally.

For more information:

Pharmaceutical Actually Listens to U.N.?

Poor availability and high prices are barriers to access to essential drugs in developing countries

Fact Sheet for MGD 8 on developing global partnerships

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.

Yet GSK’s approach is still plagued with problems; it does not include HIV patents, and their drugs will still remain unaffordable to most poor people, including middle-income countries with large poor populations, like India. In order for sustainable progress to occur, the whole pharmaceutical industry must undergo a radical shift in mindset and practice. Drugmakers must begin to operate on the notion that need, not profit, should drive innovation, and as Amy Kapczynski argues in her article, “patents are not ‘rights,’ but rather privileges – and they do not come before the rights to health and life.”

See also:

Response from Merck & Co. to Human Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines, Prepared by the U.N. Special Rapporteur, Paul Hunt – Merck & Co., Inc., Feb 2008

Global Pharmaceutical Patent Law in Developing Countries: Amending TRIPS to Promote Access for All – bepress Legal Series, Mar 2006

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.”

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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.

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$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.

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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.

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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.

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In Reversal, US to Engage with Human Rights Council

President Obama’s decision to become actively involved in the U.N. Human Rights Council raises hope that the administration will take a multilateral, human rights approach to international diplomacy.

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Living in a Sea of Mud and Drowning in Dread

Hurricane season has left Haitians to navigate mud-covered towns; without clear evacuation and reconstruction plans, Haitians fear an even worse situation this year.

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Chad: Fighting Violence Against Women — But How?

Violence against women is endemic in Chad, where in December dozens of women took part in a protest march against the legal gaps and cultural norms that allow for rampant domestic violence, sexual abuse, and underage marriages.

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In Iraq, A Story of Rape, Shame and ‘Honor Killing’

Killing of a pregnant rape victim by her brother reveals the terrible frequency of ‘honor killings’ in Iraq.

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Mentally Ill and in Immigration Limbo

Xiu Ping Jiang, an illegal immigrant from China, faces the harrowing choice of deportation  or detention in a facility where she has, allegedly, received inadequate care for her mental condition.

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Women’s Health Insurance Fairness Act

U.S. Senator John Kerry has introduced a bill that would prohibit health insurance companies from charging women higher premiums and from discriminating against women based on whether they are pregnant.