Abstract
Arlene Kanter explores the paradoxical historical position of the United States (US), which has failed to ratify most international human rights treaties while claiming pride as one of the chief architects of the United Nations (UN) system. She explores the contemporary history of the failed attempts in the US to achieve ratification of the most recent human rights treaty, the UN Convention on the Rights of Persons with Disabilities (CRPD 2006). Kanter provides an overview of why States ratify human rights treaties, followed by a short summary of US treaty ratification history. She then describes the failed CRPD ratification process in the US Senate, including an analysis of the arguments that were presented for and against ratification and the reasons for the failure. The chapter concludes with an account of the implications of this failure for persons with disabilities in the US and in relation to the standing of the US in the world.
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Notes
- 1.
Of the UN’s 193 member states that are eligible to ratify treaties, 192 countries have ratified the CRC1989, 180 countries have ratified the CEDAW 1979, 175 countries have ratified the ICERD 1965, 167 countries have ratified the ICCPR 1966, 161 countries have ratified the ICESCR 1966, and 153 countries have ratified the CAT 1984 (Kanter 2015a; UN Undated-b).
- 2.
The US has ratified two optional protocols of the CRC but only signed the CRC. According to Philip Alston, a leading international human rights legal expert, the US reluctantly signed the CRC. The fact that “this treaty contained a number of provisions giving effect to [the Convention on Economic, Social and Cultural Rights] was often cited as a reason for not proceeding with ratification. This was rather ironic since most of the relevant formulations had in fact been significantly watered down at the insistence of the Reagan Administration during the process of drafting the CRC in the 1980s” (Alston 2009, p. 5).
- 3.
The other countries are Iran, Nauru, Palau Somalia, Sudan and Tonga (UN OHCHR Undated-b).
- 4.
Of the nine core human rights treaties adopted by the United Nations prior to the CRPD in 2006, the ICCPR in 1966, the ICESCR1966, the Genocide Convention1948, the Convention Relating to the Status of Refugees 1951, the ICERD 1965, the CEDAW1979, the CAT 1984, the CRC1989, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 1990, the US has ratified only the ICCPR (in 1992), the ICERD (in 1994) and the CAT (in 1994).
- 5.
The Senate has a very bad track record when it comes to human rights treaties, having only ratified three treaties and two optional protocols since the 1960s (Lord and Stein 2009). The three treaties are the ICERD, the ICCPR, and the CAT. The United States has ratified two Optional Protocols for the CRC, one concerning children in armed conflict and the other concerning the sale of children, child prostitution and child pornography (Human Rights Watch 2009). The following are some of the treaties the US has not ratified: The CEDAW, the CRC, the International Convention for the Protection of all Persons from Enforced Disappearance (ICPPED 2006), the Landmine Ban Treaty 1999, the Convention on Cluster Munitions 2010, and the Optional Protocol to the CAT 2006 (Human Rights Watch 2009). With respect to the CEDAW, there are only seven countries, including the US, that have not ratified it (Human Rights Watch 2009).
- 6.
For example, 180 countries have ratified the CEDAW, 175 countries have ratified the ICERD, 167 countries have ratified the ICCPR, 161 countries have ratified the ICESCR, and 153 countries have ratified the CAT. For a discussion of the current debate about the efficacy of human rights treaty ratification, see Kanter (2019a, 178–184).
- 7.
For a detailed discussion of the US treaty process, see Bradley (2015).
- 8.
RUDs have been attached to all four human rights treaties ratified by the US (Venetis 2011).
- 9.
Senator Bicker was a governor of Ohio, Republican Senator from Ohio, and an unsuccessful nominee for Vice President in 1944 (see, generally, Kaufman 1990, pp. 94–147). Some scholars argue that the Senate continues to pay homage to the “ghost of Senator Bricker” by insisting on assurances that new human rights treaty obligations will not alter existing domestic law, even if the treaty’s policy objectives are considered desirable (see Henkin 1995).
- 10.
According to this scholar, such a change would have caused American foreign policy to return to the time of the Articles of Confederation of the eighteenth century when the US refused to adhere to its obligations under international law (Ciment 2015).
- 11.
Introduced into the Senate in February 1952, as Senate Joint Resolution 130, the “Bricker Amendment” to the Constitution read as follows: Section 1. A provision of a treaty which conflicts with this Constitution shall not be of any force or effect; Section 2. A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty; Section 3. Congress shall have power to regulate all executive and other agreements with any foreign power or international organisation. All such agreements shall be subject to the limitations imposed on treaties by this article; Section 4. The congress shall have power to enforce this article by appropriate legislation.
- 12.
Although the Bricker Amendment started out with 56 co-sponsors, it eventually went down to defeat in the US Senate, 42–50, with 4 not voting.
- 13.
Reid v Covert, 354 US 1 (1957). The particular issue of that case was whether American civilians outside of the territorial jurisdiction of the United States could be tried by US military courts while retaining their right to a trial by jury, as guaranteed by the United States Constitution. The Court held that American citizens outside of the territorial jurisdiction of the United States retain the protections guaranteed by the Constitution, asserting that no treaty could confer upon Congress the sweeping power to try civilians by military tribunal (Bradley 2015).
- 14.
For additional discussion of the reasons for US resistance to the human rights treaties, see Bradley (2010).
- 15.
- 16.
See UN OHCHR (Undated-b).
- 17.
Two years later, in a major foreign policy address delivered at Westminster Palace before the British Parliament, President Reagan proposed an initiative “to foster the infrastructure of democracy—the system of a free press, unions, political parties, universities—which allows a people to choose their own way, to develop their own culture, to reconcile their own differences through peaceful means.” See Lowe (Undated). See also Jacoby (1986).
- 18.
The Genocide Convention 1948 was originally submitted to the US Senate by President Truman in 1949, and resubmitted by President Nixon and President Carter.
- 19.
The US also has signed the following treaties, which have not been ratified: ICESCR (ratified by 167 countries) American Convention on Human Rights 1969, CRC (ratified by 193 countries) CEDAW (ratified by 187 countries) and CRPD (ratified by 175 countries).
- 20.
The prohibition against Reservations, Understandings and Declaration, or “RUDS” which contradict the object and purpose of a treaty was established in 1969, with the adoption of the UN Vienna Convention on the Law of Treaties. Article 2(1) (d) of the Vienna Convention defines a reservation as a “unilateral statement” made by a State when ratifying a treaty “whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State.” Ibid at art. 2(1)(d). Article 19 of the Vienna Convention further prohibits any reservation that is “incompatible with the object and purpose of the treaty.” Thus the Vienna Convention makes clear that RUDS may not be used to undermine the force and effect of any particular article in a human rights treaty. Id. As explained in the International Law Commission’s Guide to Practice on Reservations to Treaties (2011): “[a] reservation is incompatible with the object and purpose of the treaty if it affects an essential element of the treaty that is necessary to its general tenor, in such a way that the reservation impairs the raison d’être of the treaty” (para. 3.1.5); see also International Court of Justice (1951):“It is the compatibility of a reservation with the object and purpose of the Convention that must furnish the criterion for the attitude of a State in making the reservation on accession as well as for the appraisal by a State in objecting to the reservation.” See also Cook (1990). For a discussion of the effect of reservations on treaties, see, generally, Alston and Goodman (2012, pp. 1080–1087).
- 21.
The International Court of Justice addressed the question of the effect of reservations to a multilateral human rights treaty in its 1951 Advisory Opinion on Reservations to the Genocide Convention. In this opinion, it rejected the argument that any State is entitled to become a party to a treaty while also making any reservation it chooses by virtue of its sovereignty. As the Opinion continued, “It is the compatibility of a reservation with the object and purpose of the Convention that must furnish the criterion for the attitude of the State in making the reservation on accession as well as its appraisal by a State in objecting to a reservation.” Alston and Goodman (2012, pp. 1080–1082).
- 22.
For example, for information about which countries attached RUDS to their ratification of the CRPD, see United Nations Treaty Collection (2006, p. 15a) Optional Protocol to the Convention on the Rights of Persons with Disabilities.
- 23.
According to Professor Bradley, these RUDs typically do a number of things: “First, they decline to agree to treaty provisions to the extent that they would violate individual rights provisions of the Constitution (such as the right of free speech). Second, they decline to agree to certain other provisions on policy grounds (such as provisions restricting the death penalty). Third, they purport to interpret some provisions that are undefined in the treaties (such as the phrase “cruel, inhuman, or degrading treatment or punishment” in the Convention against Torture). Fourth, they announce that the United States will implement the treaties in a manner consistent with its federal system of government. Finally, they declare that the terms of the treaties are non–self-executing” (Bradley 2015, pp. 36–37); Henkin (1995, p. 344).
- 24.
- 25.
The US testified during the Ad Hoc Committee Meeting in June 2003. See Statement of Ralph F Boyd Jr (2003).
- 26.
Letter from Kim R Holmes, Assistant Secretary of State for International Organization Affairs, United States Department of State, to Lex Frieden, Chairperson, National Council on Disability on June 3, 2004 (Holmes 2004).
- 27.
As Lord and Stein (2009) also observed: “The Bush administration’s aversion to cooperation was also particularly striking because of the references in the CRPD to American disability law (notably, the concept of reasonable accommodation) and its inherent values (such as its emphasis on independence and autonomy).”
- 28.
The US signed the CRPD on July 30, 2009. See Congress.Gov (2012a).
- 29.
President Obama issued a statement praising the CRPD by referring to the “extraordinary treaty… [that] urges equal protection and equal benefits before the law for all citizens [and] reaffirms the inherent dignity and worth and independence of all persons with disabilities worldwide.” Ability Magazine (Undated).
- 30.
- 31.
President Obama spoke about the importance of ratifying the CRPD:
December 3, 2012: Proclamation by the President of the United States of America
Americans have always understood that each of us is entitled to a set of fundamental freedoms and protections under the law, and that when everyone gets a fair shot at opportunity, all of us do better. For more than two decades, our country has upheld those basic promises for persons with disabilities through the Americans with Disabilities Act—a sweeping civil rights bill that moved our Nation forward in the journey to equality for all. And from making health care more affordable to ensuring new technologies are accessible, we have continued to build on that progress, guided by the belief that equal access and equal opportunity are common principles that unite us as one Nation. On the 20th International Day of Persons with Disabilities, we reaffirm that the struggle to ensure the rights of every person does not end at our borders, but extends to every country and every community. It continues for the woman who is at greater risk of abuse because of a disability and for the child who is denied the chance to get an education because of the way he was born. It goes on for the 1 billion people with disabilities worldwide who all too often cannot attend school, find work, access medical care, or receive fair treatment. These injustices are an affront to our shared humanity—which is why the United States has joined 153 other countries around the world in signing the Convention on the Rights of Persons with Disabilities, which calls on all nations to establish protections and liberties like those afforded under the Americans with Disabilities Act. While Americans with disabilities already enjoy these rights at home, they frequently face barriers when they travel, conduct business, study, or reside overseas. Ratifying the Convention in the Senate would reaffirm America’s position as the global leader on disability rights and better position us to encourage progress toward inclusion, equal opportunity, full participation, independent living, and economic self-sufficiency for persons with disabilities worldwide. We have come far in the long march to achieve equal opportunity for all. But even as we partner with countries across the globe in affirming universal human rights, we know our work will not be finished until the inherent dignity and worth of all persons with disabilities is guaranteed. Today, let us renew our commitment to meeting that challenge here in the United States, and let us redouble our efforts to build new paths to participation, empowerment, and progress around the world.
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim December 3, 2015, as International Day of Persons with Disabilities. I call on all Americans to observe this day with appropriate ceremonies, activities, and programs.
IN WITNESS WHEREOF, I have hereunto set my hand this third day of December, in the year of our Lord two thousand twelve, and of the Independence of the United States of America the two hundred and thirty-seventh. (Presidential Proclamation 2012)
- 32.
Harold Koh has criticised the US posture of attaching non-self-executing declarations to treaties: “[a]s Professor Louis Henkin likes to say, that in the cathedral of human rights, the United States is more like a flying buttress than a pillar- choosing to stand outside the international structure supporting the international human rights system, but without being willing to subject its own conduct to scrutiny of that system” (Koh 2002, p. 308).
- 33.
A complete list of Senators and how they voted is found at US Senate (2012).
- 34.
According to Lord and Stein: “Where gaps arise between the two sets of legal mandates, they do so because U.S. domestic civil rights laws and international human rights laws operate from distinct, but not necessarily mutually exclusive, perspectives. Thus, U.S. law is either consistent with the mandates of the Convention or capable of reaching those levels through more rigorous implementation and/or additional actions by Congress” (Lord and Stein 2009).
- 35.
For example, the Marrakesh Treaty provides an exception to domestic copyright law in order to make printed material available to visually impaired and print disabled people. It also allows for the import and export of accessible versions of books and other copyrighted works, without requiring copyright holder permission.
- 36.
The Senate voted in favour of going into executive session to consider ratification of the Convention.
- 37.
For the list of current CRPD Committee members, see UN OHCHR (Undated-a).
- 38.
The topic of RUDs is of particular interest in the debate over ratification of the CRPD because the Senate resisted ratification even with the RUDs. In addition to the reservation on federalism, the Obama Administration proposed two reservations, five understanding, and one declaration, including the following:
-
A private conduct reservation, which states that the U.S. does not accept CRPD provisions that address private conduct, except as mandated by U.S. law; A torture, inhuman, or degrading treatment reservation, which states that persons with disabilities are protected against torture and other degrading treatment consistent with U.S. obligations under the UN Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights;
-
A first amendment understanding, which says that the U.S. understands that the CRPD does not authorize or require actions restricting speech, expression, or association that are protected by the Constitution;
-
An economic, social, and cultural rights understanding, which says the U.S. understands that the CRPD prevents disability discrimination with respect economic, social, and cultural rights, insofar as such rights are recognized and implemented under U.S. law.
-
An equal employment opportunity understanding, which states that the U.S. understands that U.S. law protects disabled persons against unequal pay, and that the CRPD does not require the adoption of a comparable framework for persons with disabilities A uniformed military employee understanding, which states that the U.S. does not recognize rights in the Convention that exceed those under U.S. law in regards to military hiring, promotion, and other employment issues.
-
A definition of disability understanding, which states that the CRPD does not define “disability” or “persons with disabilities”, and that the U.S. understands the definitions of these terms to be consistent with U.S. law; a non-self-executing-declaration, which states that no new laws would be required as a result of U.S. ratification of the CRPD.
Blanchfield and Brown (2015, pp. 6–7). The version of the treaty with these RUDs was reported out favourably to the full Senate by the Foreign Relations Committee (SFRC). The SFRC addressed these concerns by proposing additional RUDs. Ibid.
-
- 39.
Melish (2007) has argued that the federalism argument is misplaced. The CRPD itself is not self-executing. It can be implemented through the ordinary legislative process. State-elected House and Senate representatives can give expression to state interests with respect to each piece of implementing legislation.
- 40.
Santosky v Kramer, 455 US 745, 753 (1982); see also Meyer v Nebraska, 262 US 390, 399 (1923); Pierce v Society of Sisters, 268 US 510, 534 (1925); Parham v JR, 442 US 584, 602 (1979).
- 41.
Article 24—Education, in recognising the right to education, provides: “States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to: a. The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity; b. The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential; c. Enabling persons with disabilities to participate effectively in a free society” (CRPD 2006, Art. 24(1)). For more information on Article 24 of the CRPD, see Kanter (2018).
- 42.
The EAHCA was enacted in 1975, following two court decisions, in Pennsylvania and Washington, D.C. which established the right of children with disabilities to attend public school. PARC v Commonwealth, 343 F Supp 279 (ED Pa 1972); Mills v Board of Education, DC, 348 F Supp 866 (D DC 1972). In 1990, the EAHCA 1975 was amended and renamed the IDEA 1990, and in 2004 it was amended and renamed again, the IDEIA (2004).
- 43.
The law was originally enacted in 1975 as the EAHCA 1975 and was later amended and renamed the IDEA 1990. In 2004, it was renamed the IDEIA. 20 USC 1400 et seq.
- 44.
See, for example, Hooks v Clark Cnty Sch Dist, 228 F 3d 1036 (9th Cir 2000) and Knickerbocker (2001).
- 45.
Article 10—Right to Life, of the CRPD (2006) provides that “States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others” (CRPD 2006, Art. 10). Article 25—Health, requires state parties to “Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programmes” (CRPD2006, Art. 25). During the negations on the CRPD, one of the attorneys from the US Department of Justice stated, it was the understanding of the US that the phrase “reproductive health” in Article 25(a) “does not include abortion, and its use in that Article does not create any abortion rights, and cannot be interpreted to constitute support, endorsement, or promotion of abortion. We stated this understanding at the time of adoption of the Convention in the Ad Hoc Committee, and note that no other delegation suggested a different understanding of this term” (UN 2006).
- 46.
In fact, if the CRPD had explicitly supported abortion, the Editors of the America Magazine: The National Catholic Review, a Catholic journal, would likely not have endorsed the ratification of the CRPD as strongly as it did. In response to the Senate’s failure to ratify the CRPD, the Review stated that the ratification of the CRPD is “an ecumenical opportunity for the leadership of many faiths to call for justice with one voice. It deserves broad public support” (America Magazine 2013). See also, Shaffer (2013) and Silecchia (2013).
- 47.
This was the most people to answer that question this way in the history of the question, one which pollsters began asking in 1964.
- 48.
After citing foreign law in their decisions, Justices Ginsberg and O’Connor became targets of online death threats, including one that is quoted as saying: “Okay commandoes, here is your first patriotic assignment…This is a huge threat to our Republic and constitutional freedom... If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week” (Mauro.com. 2006).
- 49.
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Kanter, A.S. (2020). The Failure of the United States to Ratify the CRPD. In: Kakoullis, E.J., Johnson, K. (eds) Recognising Human Rights in Different Cultural Contexts. Palgrave Macmillan, Singapore. https://doi.org/10.1007/978-981-15-0786-1_6
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