More than an Incidental Effect on Foreign Affairs: Implementation of Human Rights by State and Local Governments


Adopted in the wake of the Second World War, the Universal Declaration of Human Rights was the first step toward a solemn international recognition of fundamental human dignity and equality. Thereafter came the International Bill of Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and others. These treaties articulate a broad range of rights that nations have committed to protect, respect, and fulfill through their own domestic legal systems. While the United States is a signatory to all of the major human rights treaties, it has failed to ratify many significant human rights instruments, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), and CEDAW. A myriad of complex political and cultural struggles-too complex to discuss in depth here-underlies the United States’ refusal to ratify these treaties. Some general observations, however, are worth noting. For example, opposition to the ICESCR is rooted in the United States’ denunciation of socalled “positive rights,” such as rights to education, housing, food, and water. Instead, the United States has tended to prioritize “negative rights,” usually considered civil and political rights such as the right to be free from torture, fair trial rights, and the right to vote, claiming that these rights provide adequate protection for individuals and may, in and of themselves, lead to better economic and social conditions. Failure to ratify the CRC, however, is linked to apprehension about the scope of the treaty’s obligations as well as fear that the convention would diminish parental rights. In the case of CEDAW, former U.S. Assistant Secretary of State Harold Hongju Koh explains that the United States’ opposition is linked to concerns that CEDAW would promote stronger abortion rights, alter gender roles and destabilize families, decriminalize prostitution, prohibit same-sex education, authorize same-sex marriage, and undermine federal and state sovereignty by imposing international norms on states and their localities. These concerns are mostly exaggerated, but they signal strong feelings that CEDAW would disturb some set or subset of cultural values.

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