Domestic courts will enforce RUDs. They have done so consistently over the years, and there is no indication that they will cease to do so.
Reorienting Toward the International Effects of RUDs
In short, the more pressing concerns are the international effects of RUDs. Indeed, while certainly not the only country to use RUDs, (151) the United States has been the target of intense criticism from the international community for its use of RUDs, particularly in human rights treaties.
Indeed, various international movements have arisen out of frustration with the United States and other states' practices of using RUDs. One prominent example is General Comment 24, which was promulgated by the United Nations Human Rights Committee (UNHRC) in 1994.
A more direct, potentially fomenting international movement suggested by the case analysis is a pattern of treaty drafters expressly banning RUDs in part or altogether.
If states begin to find the United States' use of RUDs in important treaties more inappropriate and its ratification less important, treaty drafters may be more likely to pass no-reservation provisions that limit the use of RUDs, thereby leaving the United States behind in the treatymaking process.
Part I describes the historical background of the RUDs and their principal features.
This Part sets out the background needed to evaluate the validity of the RUDs. Part I.A provides a brief history of conditional consent in the United States, from the Founding until World War II.
This reticence changed with the Carter administration, which submitted a package of human rights treaties to the Senate in the late 1970s.(78) Since that time, every President has urged the Senate to approve the ratification of major human rights treaties, and the Senate has in fact given its advice and consent to four such treaties.(79) With respect to the treaties to which the Senate has given its advice and consent, there has been a remarkable consensus across very different administrations and very different Senates about both the desirability of ratifying these treaties and the need to attach RUDs to the treaties as a condition of ratification to protect domestic prerogatives.
To address these concerns, President Carter and every subsequent President have included proposed RUDs with their submission of human rights treaties to the Senate.(85) The Senate has given its advice and consent to, and the United States has ratified, four of these treaties: the Genocide Convention, ratified in 1988; the ICCPR, ratified in 1992; the Torture Convention, ratified in 1994; and the Convention on the Elimination of All Forms of Racial Discrimination, also ratified in 1994.
Some RUDs are reservations pursuant to which the United States declines to consent altogether to certain provisions in the treaties.
Some RUDs set forth the United States's interpretation of vague treaty terms, thereby clarifying the scope of United States consent.