Human rights treaties and the Senate : a history of opposition PDF
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Page iii Human Rights Treaties and The Senate A History of Opposition Natalie Hevener Kaufman Page iv © 1990 The University of North Carolina Press All rights reserved Manufactured in the United States of America The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources. 94 93 92 91 90 5 4 3 2 l Library of Congress CataloginginPublication Data Kaufman, Natalie Hevener. Human rights treaties and the Senate :a history of opposition / by Natalie Hevener Kaufman. p. cm. Includes bibliographical references. ISBN 0807819220 (alk. paper) 1. Human rights—History. 2. Human rights— United States—History. 3. Treaties—Reservations— History. I. Title. K3240.4.K36 1990 342.73'085—dc20 [347.30285] 9050010 CIP Page v To David Page vii CONTENTS Acknowledgments ix Introduction 1 Part One Politics of Fear One 9 History and Background Two 37 The Genocide Convention Three 64 The Human Rights Covenants Four 94 The Bricker Amendment Part Two Legacy of Fear Five 119 Two Treaties That Passed Six 148 The Reservations Game Seven 175 Current Situation and Future Prospects Conclusion 195 Appendix A 201 Major Versions of the Bricker Amendment Appendix B 204 Typology of Arguments Against U.S. Ratification of Human Rights Treaties Appendix C 206 Attachments Proposed by the Senate Foreign Relations Committee for the Genocide Convention, 1950 and 1971 Page viii Appendix D 208 ABA Proposed Reservations to the Genocide Convention Appendix E 209 LugarHelms Provisos, 1985 Notes 211 Bibliography 233 Index 249 Page ix ACKNOWLEDGEMENTS The research for this project has been supported with funds from a number of sources at the University of South Carolina: the Department of Government and International Studies, the College of the Humanities and Social Sciences, the Institute of International Studies, and the University Research and Productive Scholarship Fund. I especially want to thank Earl Black, current chair of the Department of Government and International Studies, and the other members of the departmental committee which supported my work by providing me with release time to complete the manuscript. In the preparation of the manuscript I was given important help by Sandra Hall, Lori Joye, and Becky Deaton. I would like to thank Paul Betz of the University of North Carolina Press for his encouragement and advice and Ron Maner for his expert assistance. Over the years, essential help has been provided, with an enthusiasm and conscientiousness which I appreciate, by my research assistants: Steven Mosher, Ken Menkhaus, Carl Young, Tanja Bruestle, David Carroll, and especially John Creed, who has learned, to my benefit, more about human rights treaties than he ever wanted to know. Special thanks also to Pat Langelier of the University of North Carolina Library for her assistance in locating the many documents consulted in the research for this study. I am greatly indebted to Sen. Joseph Biden and his exceedingly competent staff, especially Leah Jenkins, who helped me throughout the research project, obtaining documents, arranging interviews, and generally steering me through the maze of senatorial politics. I am also grateful to the anonymous Committee and Member staff who carved time out of their demanding schedules to explain, and occasionally muse with me about, the politics of the Foreign Relations and Judiciary committees. Thanks, too, are due the members of the American Bar Association who were willing to discuss the organization with me—its past and their efforts to change the formal position of the association and to work for ratification of human rights treaties. My professional colleagues have enriched my knowledge and understanding of my subject through comments on papers and articles, responses at professional meetings, and stimulating private discussions. In particular I have benefited from the work and suggestions of Nicholas Onuf, Richard Falk, Louis Sohn, Lawrence LeBlanc, David Page x Forsythe, David Weissbrodt, Clifton Wilson, Margaret Galey, and Bert Lockwood. I am also grateful to Ferdinand Schoeman, Jerel Rosati, Moss Blachman, Paul Kattenburg, Glenn Abernathy, Morse Peckham, and Martin Donougho, colleagues at the University of South Carolina who have shared their intelligence and expertise. My women friends and colleagues continue to support and encourage me with the gift of their time, energy, and sensitivity. Those I work with have transformed the quality of my daily life: Laura Woliver, Jan Love, Ann Bowman, Sue Rosser, Joan Gero, Joan Altekruse, Marjorie Goodwin, and Nancy Lane. Outside the University, Sarah Fox, Robyn Newkumet, Sarah SchechterSchoeman, Claudia Brinson, and Anita Floyd have been wise and caring friends. I am grateful for the intelligence and good sense of my family, all of whom maintain an improbable optimism while working for change in our highly resistant society. My parents, Helen and Manny Kaufman, continue to infuse the world with their wisdom, humor, and goodwill. My sister Helene Kaufman and my brother, Ted Kaufman, foster my efforts with their critical insights, expertise, and affection. I am deeply indebted to my sister Susan Kaufman for her abiding confidence in me and all my dreams. I am grateful to my daughter Carrollee for her creative and stimulating companionship and for appreciating the importance of my work and hers; my daughter Athey I thank for putting up with the creation of a book without pictures. I dedicate this book to my friend and partner, David Whiteman. Page 1 INTRODUCTION My purpose in offering this resolution is to bury the socalled 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 eightyfive 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 modem 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 fail Page 2 ure 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,
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