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CHAPTER FIVE

The United States and International Human Rights

I. INTRODUCTION

By ratifying the UN Charter the United States assumed important international human rights obligations. These obligations, as we noted in Chapter III, were clarified and expanded by the adoption of the Universal Declaration of Human Rights and the normative status it has gradually acquired. The U.S. has also assumed international human rights obligations by becoming a party to the OAS Charter whose human rights provisions have undergone a similar transformation through the adoption and application of the American Declaration of the Rights and Duties of Man. The U.S. has not, however, ratified any major international human rights treaty. It is not a party, for example, to the Genocide Convention, the International Covenants on Human Rights, the Convention on the Elimination of All Forms of Racial Discrimination, or the UNESCO Convention against Discrimination in Education. Among the few human rights agreements that the U.S. has ratified are a convention for the suppression of slavery and one on the treatment of refugees.* The U.S. is also a party to the 1949 Geneva Conventions on the Law of War and related international humanitarian arrangements applicable in war time.

It would be a mistake to assume, however, that the failure of the U.S. to ratify major international human rights treaties proves that the U.S. violates the rights they quarantee. By the same token, it does not necessarily follow that all the states parties to these treaties live up to their obligations thereunder. This is not to say that no useful purpose would be served by U.S. ratification of these instruments, nor that their ratification by some states that do not believe in human rights is necessarily a meaningless gesture. The matter is more complicated.

This chapter will therefore explore the reasons why the U.S. has thus far failed to ratify any major international human rights treaty, the consequences of this neglect, and the changes that U.S. policies relating to international human rights are currently undergoing.

* In 1976, when this book was already in press, the U.S. became a party to the UN Convention on Political Rights of Women which had entered into force in 1954.

II. THE POST-WORLD WAR II DECADES

The U.S. is among a small number of countries that deserves most of the credit for bringing about the inclusion of human rights provisions in the UN Charter and the adoption of the Universal Declaration of Human Rights. Moreover, there are not many nations in the world whose domestic systems for the protection of human rights are as well developed as that of the U.S. At the same time, very few countries have a worse record than does the U.S. when it comes to the ratification of international human rights instruments.

U.S. foreign policy relating to international protection of human rights can best be described as a bundle of contradictions dictated by sometimes irreconcilable domestic and international policy considerations. The U.S. entered the Second World War committed to fight for "a world founded upon four essential freedoms," identified by President Franklin D. Roosevelt (in his famous 1941 "Four Freedoms" message to the U.S. Congress) as freedom of speech, freedom of religion, freedom from want, and freedom from fear "everywhere in the world." Although the U.S. remained for some time thereafter a strong advocate of international human rights, its attitude on the implementation of this policy began to change gradually in the late 1940's. 1 A. Human Rights Treaties

Although in the early 1940's the U.S. Department of State began to promote a future world organization to be established by a treaty which would contain an international bill of rights, this idea was no longer seriously pursued at the time the UN Charter was being drafted at San Francisco. For one thing, the Soviet Union and the United Kingdom were opposed to such treaty obligations. 2 Moreover, the Soviet Union would not agree to any international codification of human rights that did not include economic, social and cultural rights. The proposition that individuals had "rights" to economic, social or cultural benefits was opposed by many Americans in the late 1940's and 1950's as "socialist" doctrine which, as a consequence, the State Department could not readily advocate.

It must also be remembered that in the late 1940's and 1950's strong opposition developed in the U.S. Congress to those international human rights efforts that would involve treaty or other international law obligations for the U.S. To understand this Congressional opposition to the assumption by the U.S. of international human rights obligations, it is necessary to recall that until the 1960's very little significant progress had been made in doing away with racial discrimination in the U.S. This was the period before Brown v. Board of Education, when the doctrine of “separate but equal" education was still the law of the land; this was the period of state poll tax and anti-miscegenation laws, of restrictive convenants and numerous other state laws that perpetuated racial as well as various other forms of discrimination in the U.S.; this was the period before federal legislation and judicial decrees had outlawed de jure racial discrimination in the U.S. This was also the period when a coalition of

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ndividuals believing in states' rights and representatives from the "Deep South" held sufficient power in the Congress to prevent the adoption of strong federal civil rights legislation.

Some civil rights advocates consequently began to search for other legal methods that would serve the same purpose as federal legislation. One solution, obviously, was action by the courts, both state and federal, to give effect to the Fourteenth Amendment and related provisions of the U.S. Constitution. The other solution, which for a while seemed more promising because of prior adverse judicial precedents relating to the Fourteenth Amendment, was the UN Charter or the so-called "treaty route."

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To understand the reasoning behind the second approach, the reader needs to know that under the U.S. Constitution federal laws and treaties have the same normative rank. This means that whenever there is a conflict between a federal statute and a treaty which the U.S. has ratified, American courts, whether state or federal, must apply the one that entered into force last. Moreover, since the "supremacy clause" of the U.S. Constitution provides that the Constitution, federal laws and treaties "shall be the supreme law of the land," duly ratified treaties concluded by the U.S. supersede all prior and later state laws. There are two exceptions to these rules. The first is that American courts will not give effect to a treaty whose provisions violate the U.S. Constitution. The second exception is that a treaty will only supersede state laws and prior federal statutes if the treaty is self-executing in character. A self-executing treaty is one whose provisions are sufficiently unambiguous to allow American courts to give legal effect to them without awaiting federal implementing legislation. 3

It follows that a self-executing treaty which is not unconstitutional can, as a matter of law, accomplish the same results as a federal statute. Civil rights advocates in the late 1940's consequently believed that they could achieve some of their goals through U.S. ratification of international human rights treaties. Since the U.S. had ratified the UN Charter and since it contains a non-discrimination clause, it did not take American lawyers very long to invoke the UN Charter to challenge discriminatory legislation. As a matter of fact, U.S. Supreme Court Justices Black and Murphy were among the first to rely on this theory, citing Articles 55 and 56 of the UN Charter in their separate concurring opinions in a 1948 case that involved discriminatory state legislation. In that case Justice Black pointed out that "we have recently pledged ourselves to cooperation with the United Nations 'to promote . . . universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.' How can this nation," he asked, "be faithful to this international pledge if state laws which bar land ownership and occupancy by aliens on account of race are permitted to be enforced?"

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These arguments received national attention in 1950 when an intermediate California state court rendered its decision in Sei Fujii v. California. The court invalidated the California Alien Land Law on the ground that it conflicted

with the UN Charter and the Universal Declaration of Human Rights. The potential consequences of this decision were readily apparent to American lawyers and prompted Senator William Bricker of Ohio, among others, to warn on the Senate floor that "if the Fujii case should eventually be affirmed by the United States Supreme Court, or if the principle announced therein should be sustained, literally thousands of federal and state laws will automatically be invalid." Senator Bricker consequently argued that "something must be done to prevent treaties from having such far-reaching and unintended consequences.

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When the State of California appealed the Sei Fujii case to the California Supreme Court, that court held in 1952 that the challenged California law violated the Fourteenth Amendment of the U.S. Constitution and was consequently invalid. But this court also ruled that the lower court's reliance on the human rights provisions of the UN Charter was in error because these provisions were non-self-executing and therefore could not invalidate any otherwise applicable law. The State of California never appealed this case to the U.S. Supreme Court and so the holding of the California Supreme Court regarding the UN Charter went unchallenged. It is worth noting that the U.S. Supreme Court has yet to rule on this point; in those cases that might have presented this issue the Supreme Court has thus far preferred to rest its decisions on the Fourteenth Amendment. And once the Fourteenth Amendment became an effective weapon to strike down discriminatory legislation, American civil rights advocates no longer felt any need to rely on the human rights provisions of the UN Charter.

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But the opinion of the lower court in the Sei Fujii case had alerted many Congressmen to the fact that treaties might be used to effect domestic reforms. Moreover, since the treaty-making power had not been extensively interpreted by the U.S. Supreme Court, there was considerable disagreement, confusion and fear among American lawyers about the uses to which it might be put. The fears were kindled by partisian political charges that secret treaties, in the form of so-called executive agreements, had been entered into by Presidents Roosevelt and Truman at Yalta and Potsdam, giving the Soviet Union a free hand in Eastern Europe. This supposed “sell out" was attributed to the misuse of the executive agreement technique which enables the President in certain circumstances to assume international obligations by means of executive agreements without the advice and consent of the Senate or legislative authorization from both Houses of Congress. While these charges were being voiced, the UN had already adopted the Genocide Convention (1948) and the Universal Declaration of Human Rights (1948). The UN seemed also to be making considerable progress in drafting the Covenants on Human Rights, envisaged as a comprehensive international human rights treaty, whose ratification by the U.S. might have had far-reaching domestic legal consequences.

Citing all of these developments and what he conceived to be the real and potential threats of the treaty-making power, Senator Bricker in 1952 intro

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duced a proposed amendment to the U.S. Constitution, sponsored by him and 58 other U.S. Senators. 10 This action ushered in the so-called "Bricker Amendment" debate which did not die down until the late 1950's. The proposed amendment went through a variety of different versions. 11 But one of the expressed aims of all the drafts was to ensure that no treaty could become U.S. law, even if it received the required advice and consent of the Senate, unless both Houses of Congress had also enacted a statute authorizing its domestic application. If adopted, the "Bricker Amendment" would have ensured, among other things, that no international human rights treaty concluded by the U.S. could override inconsistent state or federal laws unless an Act of Congress so provided.

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To obtain the defeat of the "Bricker Amendment”. one vote to receive the approval of the Senate istration gave assurances to the Legislative Branch that the U.S. did not intend to become a party to the proposed UN Covenants on Human Rights and other international human rights instruments. 12 This position was also formally

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President Kennedy, followed by Presidents Johnson, Nixon and Ford, reversed the policy of the Eisenhower Administration and urged U.S. adherence to international human rights conventions. Little progress has been made thus far, for the U.S. ratified only a very small number of such treaties after this policy change. Constitutional objections continue to be voiced by some American opponents of these treaties. They argue that the treaty power may be used only to regulate matters of international concern and that human rights are not properly matters of international concern. Most American constitutional lawyers reject this view as applied to human rights. 14 The President's Commission for the Observance of Human Rights Year 1968 addressed this issue as follows:

It may seem almost anachronistic that this question continues to be raised. It is nearly a quarter of a century since this country used the treaty power to become a party to the U.N. Charter one of whose basic purposes is the promotion of human rights for all. The list of parties to the various human rights treaties proposed by the U.N. has become longer each year. In each of the last 2 years the U.S. Senate has approved a human rights treaty without a single dissenting vote. In December 1968 the Chief Justice of the United States noted that "We as a nation should have been the first to ratify the Genocide Convention and the Race Discrimination Convention." And yet the suggestion persists that this Nation is constitutionally impotent to do what we and the rest of the world have, in fact, been doing. 15

It is true, of course, that various provisions of a human rights treaty may raise constitutional issues. This is the case, for example, with regard to some clauses of the Racial Convention which appear to prohibit the dissemination of racist ideas. Such a prohibition violates the freedom of speech guarantee of the First Amendment of the Constitution. The U.S. would accordingly have to

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