A Second Bill of Rights
In 1944 President Franklin D. Roosevelt in his State of the Union Message made the following assertion: “As our nation has grown in size and stature . . . political rights proved inadequate to assure us equality in the pursuit of happiness . . .. [T]rue individual freedom cannot exist without economic security and independence . . .. People who are hungry and out of a job are the stuff of which dictatorships are made . . .. In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second bill of rights . . ..”(1) In 1948 the United States supported the Universal Declaration of Human Rights, and without the active and effective leadership of Eleanor Roosevelt, as the Chair of the Commission that drafted the Declaration, it might never have been approved. Civil and political rights are more prominent in the Universal Declaration, but it also affirms economic, social and cultural rights.
In the 1950s, however, the political climate in the United States made it impossible to ratify any international human rights treaties. A decision by the California Court of Appeals in 1950 held that the human rights of the U.N. Charter were binding treaty obligations superseding inconsistent state legislation by virtue of the supremacy clause of the U.S. Constitution.(2) Shortly thereafter the NAACP filed a brief citing international human rights law as grounds for invalidating racial restrictions on the ownership of property.(3) This reinforced fears among proponents of segregation that human rights treaties would be used in the United States to undermine individual states’ rights and to support desegregation movements:
Contemporary opposition to the Covenant [on Civil and Political Rights] and to other human rights treaties is essentially a legacy of the 1950s, rooted in two related domestic political phenomena—Cold War anti-communism and hostility to the emergent civil rights movement. The principal argument arrayed against the Covenant (and the Genocide Convention) at that time was that ratification posed a threat to the federal system of government. More particularly, the argument was that use of the treaty-making power to establish and protect individual rights would violate, or at least unacceptably limit, the rights of the individual states and deprive U.S. citizens of their right to self-government. Underlying this concern, of course, was fear that the federal government would rely on the treaty-making power in assuming an activist role in the elimination of legalized racial discrimination, then still prevalent in a number of southern states. Moreover, the debate over human rights treaties initially took place amid a genuine fear of communist subversion and ideological assault aimed at taking over the United States and the remainder of the free world. Thus, it was not just that the treaties were seen as improperly opening to international review and regulation matters thought to be exclusively domestic, but that the ensuing loss of U.S. sovereignty to an illegitimate world government (the United Nations) was part of the general effort to eliminate democracy. The debate culminated in the defeat in January 1954 of the so-called Bricker Amendment to the U.S. Constitution, which was actually a series of proposals offered from July 1951 to early 1954. In its most developed form, the Bricker Amendment would have provided, inter alia, that any treaty denying or abridging any right enumerated in the Constitution would have no force or effect, that the rights of the states under the Tenth Amendment would be preserved from federal encroachment, and that a treaty would become effective as internal U.S. law only through enactment of appropriate legislation by the Congress.(4)
To prevent Senate enactment of the Bricker Amendment, Secretary of State Dulles promised that no human rights convention would be submitted for its advice and consent. The position of the administration was set forth in State Department Circular 175: “Treaties should be designed to promote United States interests by securing action by foreign governments in a way deemed advantageous to the United States. Treaties are not to be used as a device for the purpose of effecting internal social changes, or to try to circumvent the constitutional procedures established in relation to what are essentially matters of domestic concern.”(5)
In the early 1960s, however, President Kennedy re-introduced the issue of human rights into American politics, and once Congress had enacted Civil Rights legislation the argument that international law would be used to promote desegregation was moot. In 1967 the United States joined an overwhelming vote in ECOSOC to authorize the Commission on Human Rights to study “situations which reveal a consistent pattern of violations of human rights, as exemplified by the policy of apartheid.”(6) And in 1970 the United States supported ECOSOC Resolution 1503, which created a procedure to examine private communications when there was a “consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms.”(7)
In 1973 there was bipartisan Congressional support for human rights in foreign policy hearings held by the House Foreign Affairs Subcommittee on international organizations, and thereafter Congress began to link bilateral aid to human rights enforcement. Section 32 of the Foreign Assistance Act of 1973 and Section 46 of the Foreign assistance Act of 1974 stated the sense of Congress that the President should reduce or terminate economic, military or security assistance where there was a “consistent pattern of gross violations of internationally recognized human rights.” The International Development and Food Assistance Act of 1975 mandated prohibiting aid to governments that were violating human rights, although it allowed for an exception if the aid would go only to those in need. In addition, the International Security Assistance and Arms Export Control Act directed the President “to formulate and conduct international security assistance programs of the United States in a manner which will promote and advance human rights.”(8)
In 1976 President Ford supported steps to strengthen the Inter-American Commission on Human Rights, and when the Carter administration took office it reaffirmed this support. In 1977 Congress prohibited the World Bank and the Inter-American Development Bank from making loans to countries with a “consistent pattern of gross violations of human rights,” only exempting loans aimed at “basic human needs.”(9) That same year President Carter signed the American Convention on Human Rights and the two main implementing covenants of the Universal Declaration of Human Rights, and Senator Robert Dole asserted in 1977 that “human rights [law] has become a cornerstone of American foreign policy with the full support of Congress.”(10)
When President Carter sent the two main implementing covenants of the Universal Declaration of Human Rights to the Senate for its advice and consent in 1978, he said they are “based upon the Universal Declaration of Human Rights, in whose conception, formulation and adoption the United States played a central role.”(11) Furthermore, “like U.N. personnel, and also like the Honorable Warren Christopher (whose State Department letter recommended that both Covenants be ratified), Carter accorded No. 1 status to the Economic, Social, and Cultural Covenant.”(12)
Congressional support for human rights was reflected in the rejection of President Reagan’s first nominee for Assistant Secretary of State for Human Rights and Humanitarian Affairs, in part because he “had called for the repeal of all U.S. legislation linking human rights and foreign policy.”(13) The Reagan administration, however, quickly took effective steps to undermine human rights initiatives. It did officially support ratification of the Genocide Convention and submitted the Convention against Torture to the Senate, but it did not lobby for either treaty.
Moreover, the Reagan Department of State “substituted reporting on ‘political rights’ (the right of citizens to change their government) for Carter’s attention to economic rights, and the latter were discussed only in the context of the ‘economic, social and cultural situation’ in each country surveyed.”(14) A memorandum approved by Secretary of State Alexander Haig denied that economic, social and cultural rights were “rights” and asserted that in U.S. foreign policy human rights were to be understood as “meaning political rights and civil liberties.”(15) In fact, the memo instructed members of the Reagan administration to “move away from ‘human rights’ as a term, and [to] begin to speak of ‘individual rights,’ ‘political rights’ and ‘civil liberties.'” In addition, the Reagan administration withdrew from UNESCO and from the compulsory jurisdiction of the International Court of Justice, and also withheld the U.S. government’s assessed financial contribution for support of the United Nations.
Nevertheless, in 1989 the United States took part in a plenary review meeting in Vienna of the “Helsinki Accords,” and this meeting reaffirmed the commitment of the 35 signatories to respect human rights and to consider acceding to the two main international covenants. These covenants, however, were to languish in the U.S. Senate until, in 1991, President Bush asked that the Senate give its advice and consent to the International Covenant on Civil and Political Rights. In 1992 this treaty was ratified but with significant reservations, understandings and declarations. Neither the Bush nor the Clinton administration, however, has asked the Senate for its advice and consent on the International Covenant on Economic, Social and Cultural Rights.
Soon after the Universal Declaration of Human Rights was approved by the U.N. General Assembly, the conflict between the United States and the Soviet Union began to dominate international relations. The Soviet governments championed economic, social and cultural rights and agreed to embrace civil and political rights, but the United States government knew very well that Soviet governments were not about to provide for their citizens the rights that are guaranteed Americans under the U.S. constitution. Therefore, the U.S. government took the position that the United States Constitution already guaranteed the civil and political rights included in international human rights law, and it dismissed as socialist ideology the idea of economic, social and cultural rights. The U.S. government did not want to comply with the reporting requirements of the two main treaties implementing international human rights law, nor did the U.S. government wish to create a forum for the public discussion of differences between international human rights law and U.S. law concerning “rights.”(16)
Since the 1970s, however, human rights have been a part of the foreign policy of the United States:
Legislation and administrative measures have been adopted to punish human rights violators by terminating economic assistance, withholding diplomatic support, opposing multilaterial loans, and refraining from licensing crime control equipment or supplying military assistance and training. This legislation refers to “internationally recognized human rights,” and the United States should not refuse to participate in the process with which such rights are defined. Each year, the department of State is mandated to report on the human rights practices of all U.N. member states, whether or not they receive U.S. assistance. The United States also plays an active role in deliberations of international bodies concerned with the political aspects of human rights.
The U.S. government endorses human rights for all other countries of the world even as it refuses to adopt these standards for the people within its own borders. Those who favor this position argue that the United States Constitution ensures civil and political rights, which are the only true human rights, for all its citizens. Those who oppose the position of the U.S. government argue that it is hypocritical and condescending.
This entire essay is published in Promises to Keep: Prospects for Human Rights, edited by Charles S. McCoy (Berkeley, CA: Center for Ethics and Social Policy, Graduate Theological Union and Literary Directions, 2002).