Self-governance and international treaties

A comment on OpenForum’s August 10th 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.

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.