Human Rights Article: The US And Human Rights Treaties

There's some interesting human rights treaties kicking around. The United States should ratify some of these treaties and reject others.

The United Nations, say what you will about that organization, has at least produced several treaties purporting to protect human rights. These treaties are of varying degrees of usefulness. Until quite recently, the United States refused to accept any of these treaties, fearing encroachment on American sovereignty. Actually, concerns over sovereignty are misplaced: Unlike (for example) the GATT free trade agreement, the human rights treaties have no significant enforcement provisions, so countries which ratify these treaties are simply on their honor to abide by the committments made therein.

Starting with the Carter administration, some U.S. Presidents have signed some of the UN human rights treaties. The Senate (which usually needs to assent to treaties, by a two-thirds vote, before such treaties can bind this country) has not been as enthusiastic as the executive branch to approve these treaties, but it has ratified three of them. Other treaties remain signed by the President but in a state of limbo vis-a-vis the Senate. There are other treaties which the U.S. has neither signed nor ratified. In this essay I will discuss UN human rights treaties which the U.S. has fully approved (through Presidential signature and Senatorial ratification), those treaties which the Presidents have signed but which await Senate action, and a couple of treaties which the U.S. ought to ratify, but won't.

The first UN treaty on human rights which the U.S. ratified was the Genocide Convention. This treaty commits the United States to oppose mass murder or attempts at mass extirpation, if the mass murder is directed against racial or religious minorities. After World War II, the United States tried to change the definition of genocide so as to include the mass murder of political opponents, but Stalin's Soviet Union blocked this definitional change. After the treaty was finished in 1948, the United States did not ratify it at once due to concerns over national sovereignty. When the treaty was finally ratified in 1988, the Senate attached a "reservation" (a unilateral modification of a treaty) declaring that, in a departure from the treaty, the U.S. would not accept, except on a case-by-case basis, the jurisdiction of the World Court in genocide cases (the U.S. at the time was angry at the World Court's decision against America in a case brought by Nicaragua). Thus, we won't let the World Court hear genocide charges against this country in the absense of specific agreements allowing such consideration.

Another UN human rights instrument ratified by the United States (in 1992) is the International Covenant on Civil and Political Rights, which protects many of the liberties which we associate with the Bill of Rights, as well as guaranteeing racial and sex equality. The Covenant also requires the suppression of war propaganda and incitement to racial discrimination, but a reservation attached to our ratification indicates that we will not do anything against the First Amendment in dealing with such propaganda. Another reservation reserves the right of the United States to execute anyone it wishes, regardless of restraints placed on capital punishment in the Covenant, such as the 18-year-old minimum age for execution. The Senate graciously agreed, however, not to execute pregnant women (the pro-life lobby may have been at work here, or maybe it was the pro-choicers supporting the right of women on death row to carry their children to term).

Of interest is the Second Optional Protocol to the Civil and Political Rights Covenant. This Protocol abolishes the death penalty, except possibly in certain wartime cases. The United States will probably ratify this treaty within a couple of years...after Hell freezes over.

The United States has also ratified the UN Convention Against Torture. This Convention prohibits torture-something already done by the Civil and Political Rights treaty, and the Convention also makes the extradition of torturers easier.

Finally, the United States has ratified the Convention on the Elimination of All Forms of Racial Discrimination. This was in 1994, and I can see how Senators wouldn't want to vote against anything which denounced racial discrimination. The fact is, however, that this treaty is fairly redundant, in that it covers pretty much the same ground as the Civil and Political Rights treaty (which contains anti-discrimination clauses) and the U. S. civil rights laws. Sections of the treaty which forbid racist expression are counterbalanced by a U. S. reservation preserving First Amendment rights.

The Senate, in ratifying the International Covenant on Civil and Political Rights, declared that the operative paragraphs of the Covenant were not self-executing. This means that, until Congress passes implementing legislation, the courts cannot enforce the rights listed in the treaty unless those rights are already protected by the Constitution or by statute. The Senate attached similar reservations when it ratified the race discrimination treaty and the torture treaty.

There's a little problem here. Article VI of the Constitution declares that treaties made under the authority of the United States are "the supreme law of the land" and binding on state courts. The Fourteenth Amendment declares that no state shall deprive anyone of life, liberty or property without due process of law (the Fifth Amendment contains a similar restriction with respect to the federal government). The meaning of the phrase "due process of law" has been hotly disputed, but pretty much everyone agrees that "due process" includes the requirement in the Magna Carta that anytime the government tries to take away someone's life, liberty or property the government must follow the law of the land, and the law of the land specifically includes treaties. Thus, insofar as the human rights treaties ratified by the Senate protect individual rights from abuse at the hand of the state courts, due process requires that the state courts comply with these treaties.



But if the state courts comply with the treaties, then the treaty will become self-executing, a result which the Senate tried to avoid. Here is a contradiction, which can only be resolved if Congress passes a law declaring the human-rights treaties to be enforceable in court.

Some UN treaties on human rights have been signed by the President but not ratified by the Senate. One of these treaties is the International Covenant on Economic and Social Rights, which President Carter signed on October 25, 1977 but which still awaits action by the Senate. This is a good treaty, in that it protects rights to certain social benefits which the United States is already, by law, making available to its citizens. Ratifying this treaty would solve an important internal problem in the U. S., in that it would provide a solid legal basis for the federal welfare state, which now relies for its legitimacy on a strained interpretation of the Congressional spending power. An important reservation which ought to be made to this treaty is a reservation protecting the intellectual and other property rights of American citizens and corporations, which may be threatened by a section of the Economic and Social Covenant relating to national self-determination. Other than that, it's a good treaty, although not a treaty which is likely to be ratified by the Senate anytime soon.

Another treaty signed by President Carter, but never ratified by the Senate, is the Convention on the Elimination of all forms of Discrimination Against Women (signed July 17, 1980). This treaty, like the racial discrimination treaty, is pretty much redundant, since it just repeats things already clearly stated or implied in the Civil and Political Rights treaty and the Economic and Social Rights treaty.

Then there is the Convention on the Rights of the Child, signed by President Clinton on February 16, 1995. This is mainly a rehash, specifically for the benefit of children, of the rights protected in the Civil/Political and the Economic/Social treaty. One objectionable feature of the Child Rights treaty is that it allows the recruitment of child soldiers, and the use of child soldiers in combat. These problems are addressed in the First Optional Protocol to the Child Rights treaty, a Protocol signed by President Clinton on July 5, 2000. This Protocol is of some help in the worldwide fight against the use of child soldiers, and those activists who wish to end the use of children as soldiers are supportive of this Protocol. I must assume, then, that this Protocol on child soldiers will result in some improvement in the problem, so I guess it would be a good idea for the Senate to ratify the Child Rights treaty and the Child Soldier Protocal (you have to ratify the Child Rights Treaty to be eligible to ratify the Child Soldier Protocol).

It is unfortunate that the Child Soldier Protocol fails to go far enough in accomplishing its ends. Children under 18, according to the Protocol, may not be drafted or used in combat, but it would remain legal to "voluntarily" recruit 17-year-olds (or maybe even 16-year-olds; the treaty is vague on this point) and let such children serve in "noncombatant" roles, which would presumably allow 17-year-olds to work as support staff even during a battle. The Child Soldier Protocol, then, would not end the more noxious practices of the United States, such as recruiting 17-year olds (federal funds will even be cut off from an educational institution which bars military recruitment of 17-year olds). Recruiting is quite aggressive, including threats against recruits who have second thoughts, so a greater degree of reform that the Protocol allows needs to be adopted to protect child soldiers. It is curious that the U. S. will not let 17-year olds smoke or drink, but will allow them to serve in support roles in the armed forces.

Another Protocol to the Child Rights Treaty, signed at the same time as the Child Soldier Protocol, deals with child prostitution, and I suppose that if the Senate ratifies the main treaty it ought to ratify this Protocol as well.

Another treaty, which the United States has neither signed nor ratified, is the Migrant Workers' Convention. Since this Convention protects basic rights for migrant workers and their families, and since there are numerous migrant workers in this country who need all the help they can get, the President ought to sign and approve this treaty, although I doubt this will happen.

The treaty for the international criminal court, although there's a heavy lobby for it, would not be good for the United States. The idea is that an international court will put major human-rights violators on trial if their home countries refuse to prosecute. This is a good idea in theory, but in practice the United States, by ratifying this treaty, would consent to having its citizens tried by remote judges sitting without juries, in violation of the very human rights norms which the U. S. is seeking to uphold. Also, the treaty contemplates that people acquitted in U. S. courts might, in certain circumstances, be retried in the internatioanl court. This nice but misguided treaty should be turned down.

Ratifying human rights treaties is not a monumentally significant event on the order of ratifying a trade treaty, since trade treaties have teeth (enforcement mechanisms) and human rights treaties have very few teeth. Nevertheless, ratifying a few of the key human rights treaties will be a good gesture on the part of the United States, since it will send the right message. Other treaties should be rejected by this country, and left to sleep the sleep of the just.

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