Human Rights and International Lawmaking

by Oona Hathaway

Cathy and Roger both pick up on the special role that human rights treaties play in the history of international lawmaking in the United States. In my article, I argue that the current bifurcated system of international lawmaking took its shape over the course of the twentieth century. The United States gradually abandoned the mercantilist, protectionist trade policy that it had pursued since the Civil War in favor of a policy built on reciprocal congressional-executive agreements on trade. Meanwhile, opposition to human rights agreements motivated significant opposition to treaties especially in the second half of the century. In particular, in the 1950s, a series of proposed amendments to the Constitution (usually referred to as “the Bricker Amendment”) aimed to prevent the United States from entering international human rights agreements that some feared would be used to challenge segregation and Jim Crow. Roger asks if this concern is still relevant. I think it is in two ways.

First, past practice influences present practice. The controversy over the Bricker Amendment ended in a “compromise” in which the amendment was defeated at the cost of future human rights agreements, which would thereafter be concluded only as Article II treaties that had been rendered almost entirely unenforceable through reservations, understandings, and declarations (RUDs)–that is, if they were ratified at all. That continues to be true even today, both because of the natural force of precedent and because of the specific incorporation of past practice into the Circular 175 Procedure followed by the State Department in deciding which instrument to use for an agreement.

Second, there remain concerns among many of those who resist ratifying international human rights treaties that the treaties will bring about internal changes in the United States. This was the central line of attack on the Convention to Eliminate All Forms of Discrimination Against Women at the hearings before the Senate Foreign Relations Committee as recently as June 13, 2002. Congresswoman Davis, for example, stated that we should not “be eager to have our laws and social structures pronounced upon by an international committee made up in part by representatives of nations with notoriously poor human rights records” while at the same time echoing concerns raised by others that ratifying the treaty might lead to calls to decriminalize prostitution and end Mothers’ Day. Those concerns were voiced in spite of the fact that the RUDs would have almost certainly made direct enforcement of the treaty in U.S. courts impossible.

Roger asks what is stopping the executive and legislative branches from proposing agreements that ordinary would have proceeded as Article II treaties as congressional-executive agreements instead. I think that the reticence is due in part to a misreading of the law (that I am trying to correct in this article) and in part to a commitment to precedent (that I am arguing is misplaced). I expect it is also due in part to concerns about how such agreements might be received by the Senate (which, after all, has to approve congressional-executive agreements as well). But that, too, is surmountable. In the past, the Senate has been open to greater use of congressional-executive agreements even at the expense of its unique role in the Article II treaty process. A committed President and congressional leaders could lead the Senate to take the next step.

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