Would Repealing the ACA Violate International Law?

Barely one month after a stinging and stunning legislative defeat, President Donald Trump has committed to revising the AHCA and potentially resubmitting it for Congressional approval.

In addition to Democrats and widespread popular opinion against ACA repeal, the AHCA may face another obstacle – international law.

This week the Washington Post’s Dana Milbank reported that the United Nations Office of the High Commission on Human Rights forwarded a four-page letter to the Acting Secretary of State, Thomas A. Shannon, to express the Commission’s “serious concern” that the US was in danger of violating its obligations under international law if the U.S. ratified legislation repealing the ACA.

The letter authored by Dainius Puras, a Lithuanian with the somewhat remarkable title of UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, argues that repealing core elements of the ACA would negatively impact almost 30 million Americans’ right to the “highest attainable standards of physical and mental health”, particularly those in moderate and low income brackets and those suffering from poverty or social exclusion.

While we in the United States debate whether health care is a right or a privilege, Puras cites U.S. international treaty obligations as authorities for why health care is a right. In particular, he argues that Article 25 of the Universal Declaration of Human Rights (UDHR), a Declaration which the US voted for and had a key role in developing, clearly “establishes everyone’s right to a standard of living adequate for the health and well-being, including food, medical care and necessary social services”

He further cites other similar provisions in international treaties, conventions and UN Committee comments including Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) (signed but not ratified by the U.S.), article 5(e) the International Convention on the Elimination of All Forms of Racial Discrimination and General Comment No. 14 of the Committee on Economic, Social and Cultural Rights as proof of states’ obligation for a “progressive realization of the right to health” for all.

The letter concludes by asking the Trump administration to respond to four questions:

Not surprisingly, the Trump  administration has failed to respond.  According to Milbank, the letter was leaked to Congressional Democrats by a DHHS employee.

Does this mean that President Trump, or members of his administration, will be dragged before international courts?  No.  The UDHR is declaration by the UN General Assembly and doesn’t legally bind member-states, the U.S. never ratified and acceded to the ICESCR and while the U.S. has ratified the ICEAFRD, it does not recognize article 22 which provides that disputes be referred to the International Court of Justice.  President Trump can therefore probably rest easy in knowing that the long arm of the law is actually relatively short – at least in an international context.

But while public international law suffers from problems of applicability and enforceability, it still holds considerable political and moral authority in the international realm and helps provide a common aspirational foundation for UN member-states.  In the past, the U.S. has been a champion of key international legal instruments advanced by the UN and, in fact, the U.S. Department of State , still states that two of its key human rights goals are to:

•    Hold governments accountable to their obligations under universal human rights norms and international human rights instruments; and
•    Assist efforts to reform and strengthen the institutional capacity of the Office of the UN High Commissioner for Human Rights and the UN Commission on Human Rights.

Although the President may not be a fan of the UN, even he recently expressed that it has “huge potential. ”  Part of that potential is realized when the UN can compel states in meeting treaty obligations for the purposes of working towards a common goal of peace, security and prosperity.

For this reason, the U.S. should bolster the UN by addressing its concerns about possible contravention of international law.  This relatively simple approach may ensure that the U.S. can leverage the UN in securing its long-term interests in other areas.

This is not the first time the US has been in conflict with UN efforts to safeguard human health.  Readers of THCB will recall from my the February 7 post, “Hell Is A Very Small Place: Voices From Solitary Confinement,” the UN Special Rapporteur on Torture, Juan E. Mendez, noted in 2011 that solitary confinement, that in the US isolates prisoners for decades, be limited to no more than 15 days and be absolutely prohibited for those with mental disabilities and juveniles.

2 replies »

  1. I agree with your issues regarding the structural deficiencies within the UN and its failure to compel member-states to reform based on espoused universal ideals. That being said, I believe that the US is missing an opportunity to leverage the UN for broader international policy aims.

    For instance, while the US may skate by on the UN special rapporteur’s concerns because it never ratified or agreed to terms on enforceability, the reality is that the US will likely violate principles of the UDHR by replacing the ACA with the AHCA. Most agree that the AHCA would hurt vulnerable populations and make accessing quality, affordable medical care harder. Even worse, the Freedom Caucus wants to roll back essential health benefits making the lowest-priced plans essentially worthless.

    If the US, the most successful democracy in the history of the world, doesn’t bother to view health care as a right and to address the UN special rapporteur’s concerns regarding violations of a very liberal document, that it helped create, it would signal that it views the UDHR as a nice document but one with no authority to compel states. While that would please one side of the political aisle at this very moment, this will make leveraging the UDHR harder for the US in other areas the future – say in securing the freedom of opinion and expression you mentioned (Art. 19)

  2. When discussing our nation’s standing within the world-wide, market-place arenas of its RESOURCES, KNOWLEDGE and HUMAN DIGNITY, its important to remember that only 9% of the world’s population outside of the united states live within a nation with the protected First Amendments of our land. Recall quickly the First Amendment rights includes religion, assembly and petition as well as free speech. In this line, two of the five permanent members of the United Nation’s Security Council originate from Nations without protected First Amendment rights. For the United States, our connection to its authority has been tenuous because any one of the five permanent members of the Security Council can veto any actions initiated within the United Nations. So, the UN reporter’s analysis is interesting but irrelevant.