Human Rights Treaties: Why is the U.S. Stalling?

Twenty years of effort by the United Nations to give vitality and concrete form to the Universal Declaration of Human Rights will be celebrated in 1968, designated by the General Assembly as International Human Rights Year. From 1945 to 1948 the United States delegation led the movement for the enactment of the Declaration as the embodiment of basic democratic political ideas. But since then, while the United Nations has been struggling to establish global norms of conduct, the United States has been the chief laggard in translating them into international law. At the present time the U.S. Senate has yet to ratify a single human rights treaty.

By next year the United Nations and its specialized agencies will have completed about a dozen conventions on human rights, including one banning religious intolerance (scheduled for adoption in the 1967 session of the Assembly), and the twin covenants on civil and political rights and on economic, social and cultural rights. Thereafter the focus of the effort will shift to methods and machinery for effectively implementing the measures.

When it established International Human Rights Year the General Assembly singled out nine conventions which all member states were specifically "invited" to ratify "before 1968." Failure to ratify will no doubt limit a government's effectiveness in the U.N.-sponsored intergovernmental conference to be held in Tehran in the spring of 1968. There stress will be placed upon procedures for implementation, and treaty abstainers, however shielded by legalisms, can expect to be made acutely uncomfortable. One of these will be the United States unless the Administration takes vigorous steps this year to overcome the "lingering Brickeritis" that has afflicted the Senate for well over a decade.

The failure of the United States to ratify human rights treaties has seriously embarrassed the conduct of its policy at the United Nations and prevented it from effectively championing the rule of law on an international scale. On almost every occasion when we have advanced or supported proposals for the protection of human rights, our justification for doing so has been forcefully challenged by the Soviet Union. As the Russians point out, a power that has refused to accede to any human rights treaty is scarcely in a position to advise on enforcement procedures. Our pronouncements in the field of human rights are often branded as brazen hypocrisy, and it is said that the kind of company we keep in failing to ratify a single human rights treaty-South Africa and Spain-testifies to American purposes.

The Administration is acutely aware that the developing countries of Africa and Asia measure us in terms of our commitment to the advancement of human rights both at home and abroad. President Johnson emphasized this point in his speech to African ambassadors at the White House last May:

The foreign policy of the United States is rooted in its life at home. We will not permit human rights to be restricted in our own country. And we will not support policies abroad which are based on the rule of minorities or the discredited notion that men are unequal before the law.

We will not live by a double standard-professing abroad what we do not practice at home, or venerating at home what we ignore abroad.

Concern on this score no doubt hastened the significant decision taken by the Administration on September 28, 1966, to sign the U.N. Convention on Racial Discrimination. While signing an international treaty does not, of course, assure that ratification will follow, it does suggest a solemn commitment by the Administration to exert the required effort to attain this objective. No one can be optimistic at this late date, and particularly after the effects of the "white backlash," that the Senate will quickly reverse a position that has already hardened, but at least the Administration has indicated its intention to make a determined effort to convince the Senate that a policy sponsored by John Bricker and formally enunciated by John Foster Dulles must now be revised.

II

By urging U.S. ratification of international human rights treaties, the Administration would be continuing an effort begun by American policy- makers after the war to implement the "Four Freedoms" announced by President Franklin D. Roosevelt on January 6, 1941, reiterated in the Atlantic Charter of the same year and elaborated in the Dumbarton Oaks "Proposals" of 1944. At the founding of the United Nations in San Francisco in April 1945, American delegates were instrumental in the drafting of the Charter, which made the promotion of human rights a central focus of the world organization.

Led by Mrs. Eleanor Roosevelt, the U.N. Commission on Human Rights recommended the creation of an "International Bill of Rights" to be comprised of a declaration (the "Universal Declaration of Human Rights," adopted in Paris, December 10, 1948), a legally binding covenant (or convention) and "measures of implementation." The projected covenant (split into two separate parts), together with implementation clauses, was finally adopted by the twenty-first session of the General Assembly in December 1966, thereby-as U Thant noted-"fulfilling one of the promises made at San Francisco in 1945."

Already, through the Nuremberg Tribunal, of which the United States was a major architect, the rule of law as applied to criminal violations of human rights had been given a firm foundation. Thus President Harry Truman could comment in November 1946 that the "undisputed gain" of Nuremberg is "the formal recognition that there are crimes against humanity." Recognized among the "crimes against humanity" were persecutions on political, racial or religious grounds whether or not sanctioned by domestic law. In consequence of this "revolution in international criminal law," an erosion of the earlier principle of exclusive domestic jurisdiction in the area of human rights had taken place. The General Assembly was later to endorse the new principle of the Nuremberg Tribunal.

One expression of this principle was the Genocide Convention, the first human rights treaty adopted by the United Nations (December 9, 1948). This convention branded as a crime "acts committed with an intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." Today it is all but forgotten that the United States played a key role in its drafting, and that the text was formulated in terms of familiar Anglo-American legal theory and couched in language of traditional American common law concepts. In a speech to the General Assembly shortly before the treaty's adoption, Assistant Secretary of State Ernest A. Gross, the head of the American delegation, drew attention to the prominent part played by the United States in bringing the treaty into existence:

It seems to the United States delegation that in a world beset by many problems and great difficulties, we should proceed with this Convention before the memory of recent horrifying genocidal acts has faded from the minds and conscience of man. Positive action must be taken now. My Government is eager to see a Genocide Convention adopted at this session of the Assembly and signed by all member states before we quit with our labors here.

Two days after the convention was adopted by the Assembly, the United States appended its signature.

For a time it seemed that U.S. ratification would come swiftly. On June 16, 1949, President Truman transmitted the Genocide Convention to the Senate, asking for its consent. A subcommittee of the Senate Foreign Relations Committee held public hearings in January and February 1950, during which an Administration spokesman, Deputy Under Secretary of State Dean Rusk, testified that ratification was necessary to "demonstrate to the rest of the world that the United States is determined to maintain its moral leadership in international affairs and to participate in the development of international law on the basis of human justice."

In May 1950 the subcommittee reported favorably on the convention to the full committee, but to meet objections from segments of the legal profession as well as from conservative political forces, the subcommittee recommended that four "understandings" and one "declaration" be embodied in the resolution consenting to ratification. The "understandings" were designed to clarify the Senate's interpretation of certain language in the convention and to prevent its being applied against the United States in the event, for example, of a single lynching. The most important clarification was designed to meet objections that the treaty might adversely affect federal-state relations by sapping the authority of states on criminal matters. The proposed "declaration" met the constitutional issue by noting that the Senate considers ratification "to be an exercise of the Federal Government to define and punish offenses against the law of nations, expressly conferred by Article I, Section 8, Clause 10, of the United States Constitution. . . ."

Even these clarifications-which many thought unnecessary because they were self-evident-failed to elicit positive action by the full committee. A resurgent "nativism," which was gaining momentum from the McCarthy movement, gave support to those who felt that our sovereignty might be undermined by the United Nations and the legal instruments it was forging.

The Eisenhower Administration finally smothered the Genocide Convention and, indeed, all hope of ratification of other human rights treaties then being considered by U.N. bodies. This was a response to Senator John Bricker's campaign to restrict the presidential treaty-making power, in which he argued that human rights treaties would upset the prevailing balance of federal-state powers. According to Senator Bricker's adherents, the constitutional provision that made treaties the supreme law of the land provided a loophole whereby matters constitutionally within the province of the states would come under federal jurisdiction. (In Missouri v. Holland, the Supreme Court had held in 1920 that the Constitution authorizes Congress, in implementation of valid treaty commitments, to pass legislation on certain matters otherwise reserved to the states.)

Partly in order to weaken the offensive against the presidential treaty- making power, John Foster Dulles, on behalf of the Administration, committed the government not to adhere to "formal [legal] undertakings" on human rights, but rather to seek the promotion of human rights everywhere by "methods of persuasion, education and example." He went on to tell a subcommittee of the Senate Judiciary Committee on April 6, 1953, that the Administration would not "become a party to any [human rights] covenant or present it as a treaty for consideration by the Senate." The Secretary of State supported his statement with an argument which, though hoary, continues to be accepted even today by some members of the American Bar Association. The treaty-making power, he insisted, cannot be used "as a way of effectuating reforms, particularly in relation to social matters." It would be a reversal of the "traditional limits" of the exercise of treaty- making, he declared, to use it for the purpose of effecting "internal social changes."

This classic viewpoint had been stated by Charles Evans Hughes in 1929 when he contended that the treaty-making power must be used only "with regard to matters of international concern." But the fact is that various human rights have been dealt with and protected by international treaties since the seventeenth century. The Treaty of Westphalia in 1648, for example, provided for equality of religious rights in Germany. The Congress of Vienna in 1815 advocated the free exercise of religion. And as part of the settlement following the First World War, a number of treaties involving states of Central and Eastern Europe carried elaborate provisions for the protection of minorities, with the League of Nations as a guarantor. During the nineteenth century the United States Government itself was a party to dozens of treaties regulating the slave trade.

It is now clear that the Dulles doctrine struck at the very heart of those U.S. foreign-policy goals elaborated during and after World War II which had given emphasis to the intimacy between domestic suppression and foreign aggression, and which had underscored the necessity of extending the rule of law to the world arena. Ironically, Dulles himself, as a member of the U.S. delegation to the General Assembly in 1948, had urged the drafting of a covenant that would translate human rights into law. In an effective speech then, he drew an analogy between the American Declaration of Independence and the Constitution, on the one hand, and the Universal Declaration and the International Covenant, on the other, observing that legally binding instruments followed and gave force to inspirational declarations.

III

Bricker and Dulles notwithstanding, the fifties and early sixties saw the adoption (usually by unanimous vote) of conventions on: the status of refugees (1951); the political rights of women (1953); the status of stateless persons (1954); the abolition of forms of servitude akin to slavery (1956); the abolition of forced labor (an International Labor Organization treaty in 1957); the nationality of married women (1957); discrimination in employment and occupation (by the I.L.O. in 1958); discrimination in education (a UNESCO Convention in 1960); the reduction of statelessness (1961); and the free consent to and minimum age of marriage (1962).

These efforts were capped by the General Assembly's adoption on December 21, 1965, of the Convention on the Elimination of All Forms of Racial Discrimination, the most important treaty to date in the field of human rights. Described by Ambassador Arthur Goldberg as going "to the core of so much of the turmoil and injustice that still marks the world of the Twentieth Century," it constitutes a remarkable breakthrough both in its coverage and its machinery for implementation. Credit for this achievement must go to the powerful Afro-Asian bloc which is particularly sensitive to racial issues.

This convention transcends the race issue. It forbids all forms of discrimination based upon "color, descent, or national or ethnic origin." Thus it was made clear during the U.N. debate that the convention covers anti-Semitism and "every one of . . . [the] varied manifestations and guises [of racial discrimination] even if not specifically mentioned by name." As impressive as the scope of the convention is the machinery created for the enforcement of its provisions. No other U.N. convention provides a special and permanent organ to deal on a continuing basis with implementation (although a few allow for the submission of unresolved disputes to the International Court of Justice).

The new convention creates a permanent eighteen-member organ-the "Committee on the Elimination of Racial Discrimination"-elected for a four-year period, by and from the ratifying powers. This committee is to receive from contracting states on a regular basis reports of measures taken to fulfill the obligations spelled out in the convention. The reporting procedure constitutes a crucial element in the implementation machinery. For, given the present character of the U.N. and the supremacy of national sovereignty, the most effective means of enforcing human rights is moral suasion. To the extent that contracting states are obligated to report regularly, they are under constant pressure to fulfill treaty provisions. Moreover, the committee may, if it so desires, require a report from a contracting state at any time and, beyond this, can seek "further information."

Clearly, the committee potentially can wield considerable moral authority. In addition to receiving and seeking information, it is required to submit to the General Assembly, through the Secretary-General, an annual report on its activities. Thus it can focus the spotlight of world opinion upon developments in individual countries. Furthermore, the convention gives the committee the additional right of "making suggestions and general recommendations" to the Assembly, based upon its examination of the reports and information received. This right, if exercised, could become a potent force, perhaps resulting in the critical evaluation of reports submitted by contracting states. It is precisely the absence of machinery for critical evaluation that makes the current U.N. reporting system on human rights so inadequate (the I.L.O. excepted).

IV

In December 1962, President John F. Kennedy instructed the American delegation to the U.N. to sign the marriage convention. By 1963, he had become acutely conscious of the importance of human rights as a factor in the world situation. His historic American University address of June 10 in that year underscored the theme that peace itself "in the last analysis" is "a matter of human rights." In a wide-ranging speech to the General Assembly in September, he once again reasserted the earlier determination of U.S. policy-makers to assume the leadership in promoting human rights everywhere and advancing the rule of law on an international scale. Convinced that the Dulles policy must finally be eliminated, President Kennedy transmitted to the Senate in July 1963 three human rights treaties- those dealing with political rights of women, slavery and forced labor. Urging the Senate's consent, he observed: "The United States cannot afford to renounce responsibility for support of the very fundamentals which distinguish our concept of government from all forms of tyranny."

The treaties selected for transmittal were deliberately chosen to avoid the constitutional issue. The Nineteenth Amendment had brought the political rights of women clearly within the federal jurisdiction; similarly the Thirteenth Amendment had made slavery and forced labor a federal concern. Had he lived, President Kennedy would no doubt have pressed for ratification of these treaties and very likely gone on to urge U.S. accession to other treaties. Until very recently, the Johnson Administration has done little to pursue the Kennedy objective.

The failure to ratify human rights treaties has made it difficult, if not impossible, for the United States to take a constructive part in the effort to implement human rights goals. In March of last year, when an American delegate strongly endorsed the establishment of a U.N. High Commissioner for Human Rights-a Costa Rican initiative-the Soviet Union's representative was able to charge that U.S. advocacy was "hypocritical" and "almost indecent," since the Americans "resolutely refuse to accept legal obligations" contained in international treaties on human rights.

The U.S.S.R. rarely misses an opportunity to note that the United States has yet to ratify the genocide treaty. A typical article from Pravda (April 24, 1966) reads:

It is characteristic that several imperialist powers, in the first place the U.S.A., which has paid lip service to the campaign to halt genocide, have not ratified this convention.

This is no accident. Racial and national oppression is still very widespread in the United States of America.

Of course the Soviet charges have not fallen on deaf ears. Indeed, many delegates at the U.N., including those from friendly and neutral states, find the U.S. failure to ratify human rights treaties incomprehensible and privately question the sincerity of our advocacy of proposals such as that for a High Commissioner for Human Rights. For the majority of states have not been laggard in ratifying the conventions. For example, as of November 1, 1966, 69 countries had ratified the Genocide Convention (the United Kingdom, a long-time abstainer, will soon join); 75 had ratified the Forced Labor Convention; 67 the Slavery Convention; 56 the Employment Discrimination Convention; and 50 the Political Rights of Women Convention.

Besides embarrassing the United States in the conduct of its U.N. policy, abstention precludes the possibility of our complaining effectively about the non-implementation of any convention by a ratifying power. Only those who are contracting parties to a convention are in a position to "blow the whistle" on violations of treaty obligations by an acceding state.

There are, of course, those who consider that the interests of the United States are secured not by building an effective structure of international law but by the use of power. Dean Acheson gave expression to this view when, in his lecture at the University of Virginia on May 7, 1966, he asserted that in the world today the pursuit of peace through law is "illusory." Ambassador Goldberg rebutted the Acheson approach in a lecture at Columbia University twelve days later. Noting that the United States derives its influence "not only from great physical power, but also from the fact that our basic law and our national outlook are premised on the equality and dignity of all men," he went on to say that "the way to peace is . . . to work with all our might for the establishment of a structure of law that will be reliable. . . ."

The clash of views was renewed at the end of 1966 on a related issue. Responding to the Administration's action in supporting U.N. economic sanctions against Rhodesia, Mr. Acheson charged that it transgressed "the First Commandment" of the U.N. Charter: there must be no threat or use of force against the territorial integrity of another state. Ambassador Goldberg, speaking before the Association of American Law Schools on December 29, emphasized that law must foster in the international realm "the same creative and positive values which nations, at their best, have fulfilled in their domestic life." In a crucial passage he declared: "Law must operate to eliminate discrimination, to assure human rights. . . ."

V

An indication that the Johnson Administration may be returning to the earlier objective of advancing the rule of law by promoting human rights treaties is the decision to sign the Convention on Racial Discrimination. But will the President press for its prompt ratification, so that the United States may become a member of the all-important enforcement organ of the treaty?[i] Resistance can be expected from those in the Senate who will contend that racial discrimination is not a matter of "international concern" and therefore not an appropriate subject for a treaty. But this argument becomes less and less meaningful when apartheid in South Africa, the race problem in Rhodesia and the ethnic conflict in Cyprus rank so high on the U.N. agenda.

It will also be argued that parts of the convention clash with the American Constitution and that Article 4, which calls for a ban on "all dissemination of ideas based upon racial superiority or hatred," and all "organizations" and "propaganda activities which promote and incite racial discrimination," threatens freedom of speech and association. While the convention makes an effort to balance these restrictions by requiring "due regard" for the principles of "freedom of opinion and expression" and "freedom of peaceful assembly and association" embodied in the Universal Declaration of Human Rights, the imprecision of the language does raise a serious question.

When the convention was still in the drafting stage in 1964, the United States objected to language which obligated member states to outlaw organizations that not only "incite" but also merely "promote" racial discrimination. Prior to the final vote on the convention in the General Assembly, Ambassador Goldberg interpreted the language of Article 4 in the context of the "clear and present danger" doctrine: "a government should only act where speech is associated with, or threatens immediately to lead to, action against which the public has a right to be protected." In the absence of such a threat, he went on, the article "does not obligate a state to take action that would prohibit its citizens from freely and fully expressing their views on any subject no matter how obnoxious they may be, or whether they are in accord with government policy or not."

This position was reiterated in the statement which accompanied U.S. signature of the convention: "The Constitution of the United States contains provisions for the protection of individual rights such as the right of free speech, and nothing in the Convention shall be deemed to require or to authorize legislation or other action by the United States of America incompatible with the provisions of the Constitution of the United States of America." Since the convention provides for the use of reservations in so far as they are compatible with "the object and purpose" of the treaty, a reservation incorporating this view could be appended to the ratification.

The other principal U.N. human rights treaties do not pose this problem. A panel of distinguished citizens at a 1965 White House Conference on International Coöperation urged the Administration to press for "prompt" ratification of the Genocide Treaty and the three treaties transmitted to the Senate by President Kennedy. The panel went further and recommended ratification of the UNESCO treaty on nondiscrimination in education, and two I.L.O. treaties barring discrimination in employment and in pay. The question is whether President Johnson, as International Human Rights Year approaches, will heed this advice and give it a high priority. Unless leadership is forthcoming, the malaise of Brickeritis in the upper legislative chamber will continue to embarrass the United States and impede the achievement of its international goals.

[i] The organ is to be elected six months after 27 governments have ratified the convention. Were the United States to be one of the ratifiers, it would undoubtedly be elected to the eighteen-member body.