The United States hasn’t ratified a major human rights treaty in twenty years, but in a new essay titled “Human Rights Treaties in and beyond the Senate: The Spirit of Senator Proxmire,” Penn Law professor Jean Galbraith explains that unratified human rights treaties have still had an important effect on U.S. law, and have done so in a way that echoes the use of the reservations, declarations, and understandings (RUDs) that diminished the power of human rights treaties in the first place.
Galbraith’s essay will appear in the forthcoming book For the Sake of Present and Future Generations: Essays on International Law, Crime and Justice in Honour of Roger S. Clark, edited by Suzannah Linton, Gerry Simpson, and William A. Schabas.
A scholar of U.S. foreign relations law and public international law, Galbraith focuses on the allocation of legal authority among U.S. governmental actors and — at the international level — between domestic actors and international regimes.
In the 1950s, Galbraith writes, isolationist senator John W. Bricker pushed for a constitutional amendment limiting the power of treaties. Though he did not succeed with the amendment, his “intellectual descendants” instead used reservations, declarations, and understandings (RUDs) as a way to curb the authority of human rights treaties.
In 1967, internationalist senator William Proxmire began advocating for the ratification of the Genocide Convention, which had languished since its transmission to the Senate in 1949. Proxmire spoke on the Genocide Convention on the Senate floor every day the Senate was in session for the next 17 years. The treaty was eventually ratified — with RUDs — in 1988.
“He had been forced to compromise,” writes Galbraith, “but with the compromise came the treaty’s passage, at long last, and an example of persistence that offers hope for those seeking the ratification of other human rights treaties today.”
Now, in the same spirit of persistence of Senator Proxmire, advocates of human rights treaties are making their influence felt, even without human rights treaties being ratified in the United States. In an interesting turn of the tables, Galbraith explains, just as RUDs — rather than a constitutional amendment — helped diminish treaty power, now unratified human rights treaties — through means other than ratification — are effecting U.S. law. She notes that executive branch action, legal decision-making by state and local governmental actors, and even federal judicial decisions have been influenced by unratified human rights treaties.
“These influences are sporadic rather than comprehensive, and when they occur it is hard to assess how significant they are,” she writes. “Yet there is no denying the existence of these influences.” In some ways, she adds, the influences of unratified treaties may surpass treaties ratified with RUDs.
Galbraith gives several examples of how unratified treaties have exerted their influence. A 1995 Department of Justice guideline for asylum officers identified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as significant for evaluating gender-related asylum claims. The ratification of CEDAW was expected in 1995 but never occurred.
In addition, unratified human rights treaties can influence state and local legislators and executive officials. One of the most famous instances, Galbraith notes, is the San Francisco ordinance implementing CEDAW within the city.
But the effects that have attracted the most scholarly attention, Galbraith writes, have occurred in the federal courts. In the 2005 decision in Roper v. Simmons — which found it unconstitutional to impose capital punishment on individuals for crimes committed when they were under 18 years old — the court cited both the International Covenant on Civil and Political Rights (ICCPR) (which the United States ratified) and the Convention on the Rights of the Child (which the United States has not).
While the Court only mentioned that the treaties “provide[d] respected and significant confirmation for our own conclusions,” Galbraith explains, the fact that the court chose to discuss them is significant.
Even though the United States hasn’t passed a human rights treaty in 20 years, the spirit of Senator Proxmire is influencing U.S. law. Human rights treaties may not play as large a role in the United States as they do in Europe, Galbraith states, but even unratified, they still play a far larger role than Senator Bricker and those who share his outlook would like them to.