Saturday, October 12, 2013

Do Reservations, Understandings, and Declarations in a Treaty Have Legal Weight?

One of the things, separating supporters of the Convention on the Rights of Persons with Disabilities (CRPD) from some of those who oppose it, is the different value each side puts on reservations, understandings, and declarations (RUDs). RUDs are attachments put on an international treaty, like the CRPD, that lay out how a treaty will be interpreted under the Constitution and U.S. laws, once a treaty is ratified. Supporters of the CRPD see RUDs has having legal weight. RUDs mean something. Some opponents of the CRPD see RUDs as of questionable value. Recent court decisions, although addressing multiple, complex issues have upheld the legal strength of RUDs.

Three have been brought to my attention by legal experts:  One Supreme Court case, Sosa v. Alverez-Machain (542 U.S. 692 (2004)) and two federal appellate court cases, Auguste v. Ridge (395 F. 3d 123 (2005)) and Beazley v. Johnson (242 F. 3d 248 (2001)). In these cases the courts rendered decisions, involving human rights treaties the U.S. has ratified (United Nations Convention against Torture, International Covenant on Civil and Political Rights). The courts held that specific RUDs in these treaties had legal value and affirmed the legal nature of if and/or how the U.S. does or does not need to comply with a particular part of a treaty. Legal scholar, Jack Goldsmith, in 2005 wrote that developed countries like the U.S. and other countries, such as those which make up the European Union, include RUDs in their ratification of a treaty. They do so because they take ratification of a treaty very seriously. They want to be very clear about what they will and will not comply with in a treaty. They want to make clear how they will and how they will not comply with a treaty. Goldsmith points out that many countries, which do not have a good human rights record, ratify treaties without adding RUDs.

What are the distinctions among reservations, understandings, and declarations? Well, although there is broad agreement in the federal courts that RUDs have legal clout, the definitions of these three terms in the media are muddy. Some written statements suggest that “reservations” have a lot of legal clout, “understandings” have medium clout, and “declarations” have the least clout. Sometimes the statements are circular; for example, use the word “understanding” in a definition of the term “reservation”.

Let's sort things out. RUDs should be distinguished by their purpose.  A “reservation” deals with potential U.S. actions. A reservation is a clear statement that the U.S. reserves the right not to be bound by a specific aspect of a treaty. An “understanding” addresses how the U.S. potentially will act. An “understanding” is how the U.S. interprets a specific aspect of a treaty. A “declaration” is for the domestic audience, how a specific aspect of a treaty affects the potential actions of individuals.
Let’s take a look at one reservation, one understanding, and one declaration as explained in the Senate Report on the CRPD from December 2012. First a reservation on federalism (the division of power between federal and state governments as defined in the Constitution):

Article4(1) of the Convention states that the provisions of the Convention ‘‘shall extend to all parts of federal States without any limitations or exceptions.’’ Because certain provisions of the Convention concern matters traditionally governed by state law rather than federal law, and because in very limited instances some state and local standards are less vigorous than the Convention would require, a reservation is required to preserve the existing balance between federal and state jurisdiction over these matters.

In plain language this means the federal government will not take over authority that is reserved for state governments under the Constitution.

Now let’s look at an understanding on the best interests of the child:

The eighth understanding concerns the ‘‘best interests of the child’’ standard set forth in Article 7(2) of the Convention. It clarifies that the term or principle of the ‘‘best interests of the child’’ as used in Article 7(2), will be applied and interpreted to be coextensive with its application and interpretation under United States law, and that consistent with this understanding, nothing in Article 7 requires a change to existing United States law.

This understanding means that whatever laws we have at the federal and state levels that apply to parents’ rights pertaining to their children’s best interests remain in effect and will remain in effect unless we amend them.

Last, let’s look at a declaration that says the CRPD is not self-executing:
The first declaration states that the provisions of the Convention are not self-executing. This reflects the shared understanding of the committee and the executive branch that the provisions of the Treaty are not self-executing, are not directly enforceable in U.S. courts, and do not confer private rights of action enforceable in the United States.

This declaration means that no one can use the words in the CRPD to take action against someone in court.

My take is that RUDs are important and do make a difference. That is why I hope that supporters and opponents of the CRPD will sit down together to draft recommended RUDs for the Senate Foreign Relations Committee that address many of their differences. If the two sides do, the CRPD will be ratified.

Thank you.
Common Grounder