Treaties - Human rights treaties

Although American attitudes to treaties entered a new phase following World War II, the unilateralist impulse so dominant before the war continued in certain areas. The Senate opposed the ratification of multilateral UN treaties, particularly in relation to human rights issues. In the 1950s human rights became a major political issue in the United States, focusing on domestic racial segregation and civil rights. The civil rights movement and the Cold War were the domestic and international elements in a broad debate over the future of America. Conservatives believed human rights treaties conflicted with important national domestic interests. To them, desegregation at home and American participation in human rights treaties abroad were tools of the communists. Conservatives also regarded human rights treaties as a mechanism whereby the federal government would expand its powers over the rights of states and individuals, thereby destroying the constitutional rights of states and citizens. They believed the federal government would use treaty-making authority to make domestic and local law for the people of the various states, dismantling segregation and the property, marriage, and education laws associated with segregation. UN human rights treaties were seen as threatening the American way of life and introducing communist or socialistic government. The Soviet explosion of a nuclear device, the Korean War, and the success of the communist regime in China confirmed American fears of the threat and spread of communism. A further element in Senate opposition to human rights treaties was a strong chauvinistic belief in the superiority of the United States.

The principles of the Universal Declaration of Human Rights (UDHR) drawn up by the UN Human Rights Commission, chaired by Eleanor Roosevelt, were formally codified in the treaty known as the Human Rights Covenant completed in 1954. The United States supported the adoption of the declaration in the United Nations. Although not binding in legal terms, it was regarded by many legal scholars as a statement of customary international law. The Genocide Convention, linked to the proposed declaration and drafted in response to the atrocities of the Third Reich, was the first postwar treaty on human rights. It grew out of the Charter of the International Military Tribunal signed in London on 8 August 1945 by the United States, the United Kingdom, and the Soviet Union. Adopted by the UN General Assembly on 9 December 1948, its purpose was to make genocide an international crime. President Truman transmitted the convention to the Senate on 16 June 1949 with a recommendation of ratification, but because of Senate opposition led by the American Bar Association (ABA), it was not ratified for almost forty years. The ABA was the main body influencing the Senate. In the early 1950s as many as 60 percent of senators were lawyers and had a professional relationship with the organization. Of the membership of 41,000, only thirteen were African Americans—the ethnic group that, aside from Native Americans, had been the primary object of an American variant of genocide. The Genocide Convention was unsuccessful because of legal arguments used against it by opponents in the Senate. It is clear that many senators feared that the southern system of discrimination and segregation of African Americans—especially incidents of lynching and race riots—fell within the definition of genocide under the Genocide Convention. They did not appear to have the same awareness in relation to indigenous Americans. The Senate repeatedly held hearings on the Genocide Convention between 1950 and 1985, and it was finally approved with numerous reservations, understandings, and declarations (after passage by the House as the Proxmire Act) on 14 October 1988. The act was signed by President Ronald Reagan on 4 November 1988 and lodged with the United Nations on 15 November.

The opposition to human rights treaties is odd in a way because there is a rich history of the use of human rights precepts in U.S. history—especially U.S. domestic history. In the late eighteenth century, such precepts came under the rubric of "the rights of man," and, as noted by Alexander Hamilton in 1775, they could "never be erased or obscured by a mortal power." By 1789 human rights precepts were an established part of U.S. courts, although the vast majority of Supreme Court decisions referring to human rights have occurred only since the 1950s. John Adams stated in 1781 that the United States stood for "reason, justice, truth, the rights of mankind and the interests of the nations of Europe." Thomas Jefferson used the phrase the "rights of man" in presidential addresses in 1805–1806 to acknowledge the rights of Native Americans and African American slaves. Presidents John Quincy Adams, Andrew Jackson, and Abraham Lincoln were among many who reaffirmed these rights in the decades preceding the Civil War. Human rights was the plank many in the Senate used to argue for the abolition of slavery. They argued that slavery was a violation of the rights of man, and that "the Constitution of the United States confers no power on Congress to deprive men of their natural rights and inalienable liberty." Some senators went even further. Charles Sumner argued in 1863, for example, that intervention in foreign countries was permissible if "on the side of Human Rights." In a treaty with China signed in 1868 the United States affirmed the "inherent and inalienable right of man to change his home and allegiance."

Despite the Supreme Court decisions supporting segregation in the late nineteenth century and the Senate rejection of the Covenant of the League of Nations, by the second decade of the twentieth century there was a clear movement to further human rights. Women were given the vote, the civil rights of Native Americans as citizens were recognized, and Americans began to contemplate incorporating a Declaration of Universal Human Rights into the law of the land. Woodrow Wilson's Fourteen Points and Franklin Roosevelt's Four Freedoms were perhaps the clearest expressions of America's commitment to human rights. Indeed the impulse to further human rights had reached such a point by mid-century that the career diplomat and leading architect of the American policy of containment of the Soviet Union, George F. Kennan, felt obliged to warn that the moral legalistic thread running through American foreign policy seriously threatened its vital national interests abroad. Nevertheless, nongovernmental organizations have been highly critical of the selective manner in which the United States has applied its foreign policy in relation to human rights.

The United Nations Universal Declaration of Human Rights, however, broadened the definition of human rights to include not only the traditional, classic, political, and civil rights such as the rights to property, the right to a fair trial, freedom of movement, freedom of expression and religion, and so on, but also formalized the prohibition of slavery, torture, arbitrary arrest, and such social and economic rights as the right to work, right to an adequate standard of living, right to an education, right to seek asylum—rights formerly not included in the jurisdiction of international treaties. Cultural rights—the right to participate in the cultural life of one's community, the right to share in scientific advancement, and the protection of the moral and material interests resulting from one's scientific, literary, or artistic production—were also recognized and codified in the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights adopted as legally binding treaties by the UN General Assembly in 1966.

These broad definitions gave many senators pause. President Carter signed the two human rights treaties in 1978 and recommended their adoption, but the Senate only ratified the International Covenant of Civil and Political Rights in 1992, and then with a number of reservations, understandings, and declarations. The most important of these was that the treaty could not be invoked before American courts, and that the provisions of the treaty relating to, for example, "cruel and unusual punishment" (like the death penalty) must be interpreted as it is under the U.S. Constitution. These reservations have been rejected by many parties to the International Covenant of Civil and Political Rights, including the United Kingdom, Sweden, and the Netherlands, under the Vienna Convention on the Law of Treaties.

During the Nixon administration Congress added an amendment to the Foreign Assistance Act prohibiting U.S. assistance to any government that consistently, grossly violated internationally recognized human rights, and in 1976 it extended the prohibition to security assistance and arms sales, except under "extraordinary circumstances." This loophole enabled Washington to continue to support such governments as that of President Ferdinand Marcos of the Philippines and President Suharto of Indonesia despite their gross human rights violations. President Carter, who regarded human rights as a major element of foreign policy, did terminate military assistance to a number of Latin American countries because of their human rights policies, although Presidents Reagan and George H. W. Bush did not pursue Carter's policies. By the late twentieth century the State Department was required to report to Congress annually on the human rights records of those countries receiving U.S. economic and military assistance, some 190 nations. China's violations of human rights were a particular target of the Bush administration, although President Clinton came under strong criticism for renewing China's most-favored-nation status in 1993 and 1994. Increasingly, U.S. support of Israel was being criticized by international nongovernmental organizations such as Amnesty International because of Israel's alleged human rights violations in its treatment of Palestinians.