Advice but no Consent: Ratification of Human Rights Treaties in the United States Senate

Abstract

How has the United States, a country which advertises itself as the preeminent defender of human rights, managed to also boast among the fewest ratifications of human rights treaties? Within the Senate’s constitutional advice and consent responsibility, no other treaty subject matter suffers from a greater rate of non-ratification. No other type of treaty requires so much time to receive Senate consent. While the US possess a number of characteristics that make it unique relative to the rest of the world – perhaps even exceptional, I contend that an analysis of US engagement with human rights treaties must focus on the contents of the treaties themselves. Studies of treatymaking such as rational design have long considered the strength of treaty obligations as a factor in whether states can come to an agreement. I build upon this knowledge by analyzing the human rights treaties considered by the Senate in terms of their procedural and substantive content. By doing so, I am able to account for what factors of treaty design are associated with Senate approval of human rights treaties as well as the amount of time required for it to do so. I further explore these dynamics by reviewing Senate deliberations regarding human rights treaty ratification over the past 75 years. I close with an analysis of how the Senate has chosen to limit those human rights treaties it has ratified through the usage of reservations, understandings, and declarations (RUDs). By evaluating the human rights treaties which have been ratified versus those which have not, I find that an emphasis on positive rights and the rights of women in a human rights treaty results in a significantly reduced likelihood of ratification. I also find that an emphasis on rights related to race and ethnicity is consistently associated with delayed Senate approval for ratification. Conversely, the US ratification record shows no correlation between ratification and a treaty’s procedural makeup whether considering domestic procedures, such as implementation or enforcement requirements, or international mechanisms, such as oversight or dispute resolution mechanisms. While Senate deliberations do spend a great deal of time on procedural components of treaties, senators who criticize these procedures tend to do so for those treaties which emphasize the substantive rights noted above. Further, although the Senate generally takes great care to not dispute rights contained within human rights treaties, senators do appear willing to refute the rights of women contained in treaties such as CEDAW. Although the Senate has shown willingness to use RUDs to address procedural aspects of treaties it finds concerning, it has not proven willing to use these tools to permit ratification of treaties emphasizing positive rights and the rights of women. These results offer support for the contention that US ratification of human rights treaties is contingent on the contents of human rights themselves.