Human Rights Treaties and the Senate: A History of Opposition

INTRODUCTION

My purpose in offering this resolution is to bury the so-called covenant on human rights so deep that no one holding high public office will ever dare to attempt its resurrection.—Senator John Bricker, Congressional Record, 1951

As we consider the status of human rights treaties in the United States today, the ghost of Senator John Bricker (R.Ohio) must be smiling at the fulfillment of his wish. Thirty years after the defeat of the Bricker Amendment, most major human rights treaties have yet to receive Senate approval. These treaties have, however, been ratified by more than eighty-five other nations, including sixteen Western democracies. The United States has long been considered the leading protector of human rights. Many Americans consider the Declaration of Independence and its references to inalienable rights to be the source for the reintroduction of basic human rights into the modern political scene. Most Americans also believe that the United States has the best record on human rights of any country in the world. Yet if these treaties appear to reflect the highest ideals of the American people, and if our allies and other democracies have been able to reconcile their political and legal systems with the obligations of the treaties, why has the United States government continually resisted ratification?

The explanation for this situation has little to do with the executive branch, which has generally supported human rights treaties. The U.S. representatives at the United Nations have consistently played an active role in proposing and drafting international human rights treaties. Presidents have approved, signed, and transmitted most major human rights treaties to the United States Senate. Therefore, in exploring the failure of the United States to ratify these treaties, the analysis that follows will focus on the final phase of the ratification process—Senate consideration.

The major argument of this book is that current opposition to human rights treaties is a legacy of the 1950s. What is this legacy? First, it is the basic notion that the treaties are controversial, a notion that grew out of the 1950s opposition. This is apparent today in the senatorial trepidation about the very consideration of human rights treaties that almost completely excludes them from the Senate agenda. Second, it is the continuing assumption during debates over human rights treaties that the treaties threaten the American form of government. This assumption places the burden of persuasion on those favoring rather than those opposing ratification. Third, it is the persistence of a legalistic framework of debate which emphasizes technical legal argumentation. The highly political nature of the opposition and the essential congruence between the treaties and the United States Constitution are lost in the continuing legalism of the debate. Fourth, it is the stability over time of the actual arguments against the treaties, arguments that were developed and refined during the early Senate hearings. Although the current political, social, legal, and economic environment differs significantly from that of the 1950s, the articulated opposition to human rights treaties in the United States Senate has changed very little. This study explores in a systematic fashion both the original development of arguments in opposition to human rights treaties and the residual strength of those arguments in contemporary deliberations. The findings are based on legal analysis, legislative histories, content analysis of congressional hearings, and interviews with congressional staff members.

Part I of the book is devoted to a study of the political development of the opposition to human rights treaties in the late 1940s and early 1950s. The sources and strategy of the opposition are explained, and a typology of the arguments against the treaties is developed and applied.

Chapter 1 explores the political environment during the initial consideration of postwar human rights treaties, an environment dominated by the Cold War and the civil rights movement. Conservative fears commonly held in the 1950s were successfully grafted onto human rights treaties: erosion of individual rights, abridgment of states’ rights, expansion of the United Nations toward world government, and enhancement of Communist influence at home and abroad. The grafting process was begun by a small group of lawyers within the American Bar Association (ABA) who viewed the drafting of human rights treaties as central to a strategy to destroy the American way of life. These men persuaded a sufficiently large majority of the ABA that the organization ought to go on record as opposing these treaties, and with official organizational support behind them, they took their case to the United States Senate. The debates of the 1950s over human rights treaties and the proposed constitutional amendment they evoked structured Senate consideration of human rights treaties and left behind a legacy for the decades that followed.

Chapter 2 discusses the Genocide Convention, a treaty widely hailed as an important international response to Nazi atrocities. The Genocide Convention was strongly supported by the U.S. executive branch during the drafting process and immediately signed by the president after its approval by the United Nations General Assembly. It also drew praise from a vast number of domestic groups along a wide political spectrum during the 1949 hearings in the Senate, but the Senate failed to approve it for thirty-five years. As the first postwar human rights treaty, the Genocide Convention took on a special significance. For the opposition, it represented the first in a series of treaties aimed, some claimed, at undermining American ideals. Thus, in large measure, debate on the Genocide Convention involved discussion of other human rights documents as well. The surprising success of the opposition in persuading the Senate not to ratify the Genocide Convention was the first crucial step in establishing the institution’s skepticism about human rights treaties generally.

Chapter 3 examines the Human Rights Covenants, which became the focal point of the opposition movement. These two treaties were designed to incorporate into binding treaty law the principles of the Universal Declaration of Human Rights, a nonbinding U.N. resolution. The covenants included economic and social rights as well as traditional Western political and civil rights. These treaties quickly became the center of an intensive anti-Communist and anti-internationalist drive in the ABA and in the Senate. The Truman administration played a leading role in the drafting of these documents, which emerged from the United Nations Human Rights Commission at a time when this body was headed by Eleanor Roosevelt, the U.S. representative. Chapter 3 documents the strong executive branch commitment to these treaties and the extensive success the United States experienced in shaping the treaties to reflect essentially Western and particularly U.S. constitutional values.

The development of the Human Rights Covenants was the immediate reason cited by Senator Bricker for the need to adopt a constitutional amendment to safeguard the United States against the loss of individual rights to communism, world government, and the federal government. The fears of Bricker and others who shared his beliefs were so effectively articulated and convincingly argued that the Senate came exceedingly close to approving an amendment to the United States Constitution designed to eliminate the perceived threat. The Senate debates over the so-called Bricker Amendment, the subject of Chapter 4, included detailed discussion of human rights treaties. It was during these deliberations that the opposition arguments were refined and formalized. The Bricker Amendment hearings also established beyond question the controversial nature of human rights treaties, a key factor that continues to dominate their congressional consideration.

Part II explores the linkage between the 1950s opposition and the current absence of human rights treaties from the Senate agenda. It traces developments from the first reconsideration of human rights treaties, during the Kennedy administration, through the 1986 ratification of the Genocide Convention.

Chapter 5 carefully examines the exceptional circumstances surrounding two treaties that have passed the Senate, the Supplementary Slavery Convention and the Convention on the Political Rights of Women, in an effort to understand how special conditions can occasionally lead to ratification. The controversy normally attached to human rights treaties was not apparent in the final hearings on these two treaties, and both were unanimously accepted without reservations.

A consistent feature of the opposition has been its overwhelmingly legal cast. Chapter 6 investigates the history and validity of this legal framework. The early and vocal opposition of the American Bar Association moved the debate to legal and constitutional ground, where a particular group of lawyers asserted superior legal knowledge and expertise. The normal procedure for dealing with objectionable elements of otherwise acceptable treaties is the attachment of formal reservations, which have the effect of limiting the operation of the treaties’ terms in some specific way. Chapter 6 argues that the opposition to the treaties is basically political rather than legal, and that the offering of reservations has become a legalistic strategy in an essentially political game. Using the reservations proposed by the Carter administration for the United Nations covenants, this chapter presents an assessment of this reservations game and questions the general notion that the provisions of most human rights treaties raise serious legal challenges to our constitutional system.

The concluding chapter discusses contemporary events, including the 1979 hearings on the U.N. covenants and the 1980s hearings on the Genocide Convention. The reappearance of the same basic opposition arguments reveals the consistency of the opposition in spite of the changing internal and external political environment. This chapter also explains why the 1986 ratification of the Genocide Convention does not portend any significant change in the reception of human rights treaties in the United States Senate.

PART ONE

Politics of Fear

ONE

History and Background

By and through treaty law-making the federal government can be transformed into a completely socialistic and centralized state. It only requires that the present provisions of the Declaration on Human Rights be incorporated into a treaty... to change the relationship between the states and the federal government and to change even our Constitution and our form of government. . . . It is not an overstatement to say that the republic is threatened to its very foundations.—Frank Holman, Treaty Law-Making 1950

The first postwar human rights treaties were drafted in the late 1940s and early 1950s. The environment into which they were introduced in the United States was characterized by a particular configuration of national and international forces that was not conducive to favorable consideration. Conservatives, fearing communism from abroad and desegregation at home, viewed the human rights treaties as tools of the enemy. The circumstances that inspired American conservatives to interpret these treaties as a serious threat also created the conditions for a successful attack on the treaties by linking them to widely shared fears.

One nationally prominent conservative, Frank Holman, conducted a personal mission to alert the American public to the dangers of human rights treaties. He and a small group of likeminded conservative lawyers formed the vanguard of the opposition. They adopted a highly effective strategy for defeating the treaties—energetically and consistently working to win over to the opposition cause the leading national association of lawyers, the American Bar Association. Working through a special ABA committee appointed by the organization’s president, they successfully argued against all international legal activity on human rights. The organ of the ABA that normally addressed international legal issues was outmaneuvered and outvoted. Victory within the ABA infused a special authority and legitimation into the opposition testimony before the United States Senate, and these men were able to change the very terms of debate on the treaties.

The story of Holman’s crusade and the conversion of the ABA is the subject of this chapter. First, the political environment of the initial debate over human rights treaties is described—an environment in which emotions engendered by the Cold War and the civil rights movement combined to create a conservative politics of fear. Second, the Holman crusade is analyzed and shown to have clearly articulated the connections between this politics of fear and the opposition to human rights treaties. The final section of the chapter recounts the struggle within the ABA about how the organization should respond to human rights treaties. Later chapters will show that the general framework and specific arguments that emerged in the 1950s during discussions about human rights treaties within the ABA and in the Senate persisted throughout the decades that followed.

The Political Environment

In the context of the 1950s political environment, hostility toward human rights treaties was certainly understandable, if not entirely predictable. The hostility was due largely to two major developments in the political environment—the civil rights movement and the Cold War—which together would go on to shape the context for much of the debate on the treaties. Political realities born of these two developments, one internally oriented and one externally focused, colored treaty deliberations and eventually became inextricably bound to the treaties themselves.

The Civil Rights Movement

Within 1950s America, human rights had become a major political issue with the reevaluation of domestic racial segregation. The initial integration of American troops abroad during the war and the establishment of a wartime Fair Employment Practices Commission (FEPC) were small steps signaling to some the clear possibility of impending federal action to eliminate racial discrimination. The 1947 report of the Truman Committee on Civil Rights documented lynchings, police brutality, unfair administration of justice, conditions comparable to involuntary servitude, abridgment of the right to vote, and widespread discrimination in employment.¹ The report recommended federal action to address and remedy the country’s racial problems. Legislation was introduced in Congress to make lynchings a federal offense, to eliminate the poll tax, and to establish a peacetime FEPC. Although Congress failed to pass these bills and related legislation and, in fact, failed even to pass legislation desegregating the nation’s capital, the effort itself was a sign of change. Plans designed to address civil rights abuses through federal action were on occasion publicly supported by a large number of Senate and House members, many of whom knew that these programs would be blocked, either through filibuster or straight votes.

By 1950, the judiciary was also being drawn into civil rights issues. The doctrine of separate but equal, established in Plessy v. Ferguson, was brought under scrutiny by the Supreme Court. The Court had ruled against state enforcement of restrictive covenants in Shelley v. Kraemer in 1948. Then in 1950, in McLaurin v. Oklahoma State Regents, the Supreme Court decided that maintaining separate classrooms, libraries, and cafeterias for black students at a previously all-white graduate school was unacceptable because it impaired the educational opportunities of the blacks. In the same year, the Supreme Court implied that separate was unequal in Sweatt v. Painter, ruling that a separately created black law school was not a viable alternative for blacks denied admission to a far superior all-white state law school. Far more threatening, of course, was the decision of the National Association for the Advancement of Colored People (NAACP) to test the separate but equal doctrine in elementary and secondary public schools, which would have a direct impact on large numbers of blacks not in a position to apply to or attend graduate school. In December 1952 the Justice Department submitted an amicus curiae brief challenging separate but equal schools, in what became the Brown v. Board of Education case. Interestingly enough, even at this point, the Truman administration linked its decision to another major force within the political environment, the Cold War:

Racial discrimination furnishes grist for the Communist propaganda mills and it raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.²

But while civil rights proponents of the 1950s were skeptical that these measures would bring about actual change, talk of federal action to dismantle segregation within the states was taken very seriously by conservatives. States’ rights were ardently defended and often presented as the only bulwark against an expansive federal government that would use its powers to impose a host of liberal programs on states and local communities, programs such as the elimination of racial restrictions on property ownership, marriage, and education.

The Cold War

If the civil rights struggle was the domestic dimension of the political environment most relevant to treaty consideration, the Cold War was the major international dimension. To conservatives of the time, the essence of America was clearly threatened by Communists. McCarthyism was one extreme manifestation of the concern that a worldwide Communist movement, directed from Moscow, was taking power on a global scale and that the United States was the only country with the capability and potential will to halt the menace.

Certain major events contributed to these fears. With the explosion of a Soviet nuclear device on 29 September 1950, the atomic monopoly of the United States disappeared, and the force of any implied or explicit U.S. nuclear threat was greatly diminished. The entire Korean operation, including the effective North Korean resistance to U.S. objectives there, heightened fears of Communist power and the inability of the United States to confront and resist it. The defeat of Chiang Kai-shek and ascendance of the Communist Party in China, when joined with an assumption of Sino-Soviet friendship and cooperation, was interpreted by conservatives as seriously damaging to U.S. interests, influence, and security. The conservative reaction to all of these events was to view them as evidence of the demise of the United States as the preeminent power in the world.

The Cold War rhetoric of the Truman administration contributed to conservative fears and legitimized them in the minds of the public. Richard Freeland argues that the Cold War consensus was established before the important political events cited above took place and that the atmosphere was created by the propaganda effort the administration launched in order to get approval for the Marshall Plan. To win over conservatives who were reluctant to have the United States make economic and military commitments abroad, the administration created a framework for interpreting foreign affairs that stressed the Soviet threat. Thus, the breakdown of the wartime alliance was the result of Soviet betrayal and aggression, and the economic recovery in Europe was blocked by Soviet obstructionism and communist subversion.³ This rhetoric and the political environment it produced had repercussions the Truman White House did not predict and could not control.

The campaign implanted the idea in the public mind that the United States was imminently threatened by a massive, ideologically based assault upon everything Americans valued. This exaggerated representation of the dangers of international and domestic communism created the emotional and conceptual context within which America reacted to the Soviet explosion of the atomic bomb, the fall of China, the outbreak of the Korean War, and conviction of Alger Hiss.⁴

These are also the emotional themes that were raised by opponents of the human rights treaties. Robert Griffith holds the Truman administration responsible for the environment in which McCarthyism thrived. The Truman Administration itself couched its policies in a rhetoric of crusading anti-Communism, which stressed American innocence, Soviet depravity, and the necessity for confrontation.⁵

These fears of communism required conservatives to shift away from their traditional rhetorical position favoring demobilization, withdrawal from international affairs, reduction in military involvement, and a return to isolationism. The right, in fact, became so fixated on the Communist threat that they abandoned their insistence on a limited federal government. No less a conservative than William F. Buckley was among those citing the threat of communism as a rationale for governmental expansion, arguing that we must accept Big Government for the duration—for neither an offensive nor a defensive war can be waged . . . except through the instrument of a totalitarian bureaucracy within our shores.⁶ He explained that Republicans will have to support large armies and air forces, atomic energy, central intelligence, war production boards, and the attendant centralization of power in Washington—even with Truman at the reins of it all.⁷ Griffith points out that the conservatives paid a very high price for their ardent anticommunism in the form of a state dependent on federal spending and deficit financing. Their position on human rights treaties was only one result of their dogmatic stance on domestic and foreign policies.

Their strident polemics helped to create an anti-Communist politics that limited the arena of permissible debate, shifted the focus of political discussion toward the right, and narrowed the range of options open to policymakers. The resulting cold-war consensus informed American politics at home and abroad for nearly two decades thereafter.⁸

And, even when the Cold War abated to some degree, this conservative dogma never really died but rather lay dormant. The persistence of the deeply felt repulsion toward the human rights treaties was nurtured by at least a segment of the conservative faction as a part of their program. Their success lay in keeping their anti-Communist, anti-international fervor alive and influential in mainstream American political thinking.

Linking the Cold War and the Civil Rights Movement

The issues of domestic civil rights action and anticommunism were linked by some who argued that the American system would be easier to sell abroad if we improved our record on civil rights at home. Truman, in fact, warmed to the civil rights demands partly out of political concern for the black vote and partly as a result of the increased intensity of the Cold War. As he argued to Congress, If we wish to inspire the peoples of the world . . . who have already lost their civil liberties, ... we must correct the remaining imperfections in our practice of democracy.⁹ Some felt that legal segregation in the South opened us up to criticism in international forums and limited our ability to credibly criticize the Soviet Union’s rights violations. The NAACP went to the United Nations with complaints about segregation in the United States, and, although the Human Rights Commission rejected the Soviet proposal to investigate the charge, the specter was raised of the United States’ being criticized before the world. At a minimum, the increased publicity about domestic human rights violations tarnished the belief that the United States was the leading champion of civil rights. As a 1948 New York Times article noted:

Now that the war is over, this nation finds itself the most powerful spokesman for the democratic way of life, as opposed to the principles of a totalitarian state. It is unpleasant to have the Russians publicize our continued lynchings, our Jim Crow statutes and customs, our anti-Semitic discriminations, and our witchhunts; but is it undeserved? We cannot deny the truth of the charges; we are becoming aware that we do not practice the civil liberty we preach.¹⁰

Some at the time contended that this factor should lead us to ratify human rights treaties. One writer suggested that our failure to accept the Genocide Convention would be taken

as an indication that we have some kind of pogrom in mind for our Negro minority. [Non-Americans] will listen eagerly when Russia [says] that ratification was blocked by southern senators who feared it might lead to a federal antilynching law . . . and who were unwilling to make the mass extermination of racial, religious or national groups a crime under international law for fear that the lynching of a Negro might be considered an act of genocide.¹¹

For others, awareness of our vulnerability to criticism on civil rights made the notion of an international commitment on this subject inauspicious. Communists, it was suggested, would turn this commitment to their own ends by using the treaties to falsely accuse us and exaggerate our civil rights problems. Efforts to respond to these Communist accusations and implement the treaty commitments would lead to abrogation of domestic jurisdiction and federal intrusions into states’ rights.

The Truman Committee on Civil Rights was accused of yielding to Communist influence. As one writer stated it, A singular fact about the President’s committee is that half of its members had records of collaboration with Communist enterprise. The same author argued that the program recommended in To Secure These Rights, as the committee’s report was entitled, would rescind vital constitutional guarantees of civil liberty, under the authority of a human rights treaty.¹²

The civil rights movement and the Cold War and the fears that they engendered were clearly intertwined. U.S. civil rights violations marred the democratic-capitalist model being offered as an alternative to communism. But to conservatives, no problem at home, including the increasingly public and well-documented abuse of black civil rights, was as serious as the overwhelming need to stop communism. Conservative leaders called on the country to unite in order to effectively meet the threat. Enlarging the powers of the federal government was justifiable to address the Communist menace; it was not justifiable to address the menace of racial injustice. For conservatives, the human rights treaties represented instruments legitimizing international review of U.S. domestic affairs, including the treatment of blacks; internationalization of a human rights standard that included Communist ideas; and federal action at the state and local level to remedy racial injustice. Sanctioning these actions would represent a victory for Communists in and out of the country and further their plans for replacing the American system with one of their own.

One Conservative’s Crusade

The foundations of these conservative fears and the rationale behind them were most elaborately developed and articulated by Frank Holman, president of the American Bar Association in 1948–49. Holman was a distinguished lawyer from the state of Washington; he had been a Rhodes Scholar at Oxford University and dean of the University of Utah Law School. In the years following World War II, he was active on issues of international law within his state, serving as co-convenor of the Seattle Regional Conference on the World Court (1946) and the Seattle Regional Conference on Progressive Development of International Law (1947). Holman served on the Advisory Board of the American Bar Association Journal, was an original member of the ABA Special Committee on Peace and Law Through United Nations, and became the first and leading spokesperson on the need to protect American rights against the dangers of ’treaty-law/ ¹³ He considered his vocal opposition to the treaties a crusade¹⁴ and believed, probably correctly, that his work against human rights treaties led directly to the introduction of an amendment to alter the treaty-making provisions of the United States Constitution and to the halting of the ratification of human rights treaties by the United States.

Over the course of several years,