Author Archive for
Catherine Powell

The Ghost of Senator Bricker

by Catherine Powell

I too have enjoyed reading the range of responses to Oona’s important article. Here I’ll just reflect on the article’s treatment of the campaign by Senator Bricker in the 1950s to adopt a constitutional amendment to restrict the treaty power.

Several scholars, including Oona, have analyzed how U.S. human rights treaty practice occurs in the shadow of the botched Bricker Amendment campaign (a phenomenon Louis Henkin refers to as living with the “ghost of Senator Bricker”). While the Bricker Amendment failed, the last five decades of human rights treaty practice has, as Oona puts it, “paid fealty to the ‘ghost of Senator Bricker’ by eviscerating agreements with [RUDs] that render them virtually unenforceable.” (p 168) Oona deploys this history (along with evidence that the treaty clause sprung out of a compromise based in part on concerns of slaveholding southern states who insisted on the supermajority requirement) to gather further support for her claim that “the current system of international lawmaking in the United States rests… on rules and patterns of practice developed in response to specific contingent events—events that for the most part have little or no continuing significance.” (p. 107). Reviewing this history, Oona insists that “the reasons that gave rise to current practices have been discredited and rendered obsolete.” After all, Oona suggests the “backlash against the human rights revolution” — represented by the Bricker Amendment campaign – was based on “the largely imagined possibility that human rights treaties would be used to challenge racial segregation.” (p. 140)

I disagree with this characterization. Indeed, civil rights lawyers and activists were using and continue use human rights treaties and the broader framework supporting the idea of human rights to challenge racial segregation – oftentimes in ways that go beyond traditional legal strategies. Going back to the abolition movement, prominent abolitionists such as Frederick Douglass and Harriet Tubman, wrapped themselves in the cloak of human rights (and, of course, some of the earliest human rights treaties prohibited slavery and the slave trade). Then, in the 1920s, Marcus Garvey submitted a set of complaints to the League of Nations, which he called the “Declaration of the Rights of Negro Peoples of the World.” Following the atrocities of the Nazis, in the immediate aftermath of WWII, the NAACP and American Jewish Congress worked hand in hand to get the word “human rights” into the UN Charter, in opposition to Southern Democrats like Texas Senator Tom Connolly, a key member of the U.S. delegation to the San Francisco conference where the Charter was negotiated. With the establishment of the United Nations, in 1947, the NAACP petitioned the world body, soliciting it to condemn race discrimination.

The big challenge to the U.S. came after the Genocide Convention was adopted in 1948. In 1951, several prominent civil rights leaders – including WEB Dubois, Paul Robeson, William Patterson, Mary Church Terrell, among others – submitted a complaint to the U.N. entitled “We Charge Genocide,” which argued that the federal government, by failing to act against lynching in the U.S., was guilty under article II of the Convention. The petition also documented numerous unfair trials and executions of African Americans, as well as large scale voter disenfranchisement through poll taxes and literary tests.

Even the Justice Department embraced an internationalist frame, when, in its amicus brief in the Brown v. Bd of Ed case, it highlighted the hypocrisy of the U.S. role in advocating for rights abroad, when it could not guarantee these rights at home. The Founding Charter of the NOW Legal Defense Fund also recognized that “our own status is inextricably linked to those around the world” (and today, the organization has taken a leadership role in a coalition supporting adoption of a local ordinance in New York City, incorporating CEDAW and CERD).

While civil rights leaders of the 1960s were split on ideology, both Martin Luther King and Malcom X adopted human rights rhetoric and internationalist outlooks. Before his assassination in Memphis — where he was looking for a way to link traditional civil rights and economic justice concerns in his campaign to organize a poor people’s campaign — King proclaimed that “it is necessary to realize that we have moved from the era of civil rights to the era of human rights.” For his part, Malcom X cautioned, “We have to keep in mind at all times that we are … fighting for recognition as human beings. We are fighting for the right to live as free humans in this society. In fact, we are actually fighting for rights that are even greater than civil rights and that is human rights.” At another juncture, Malcom X advised, “Our problem must be internationalized.”

Jack Greenberg tells me that during his pioneering days at the NAACP Legal Defense and Educational Fund (LDF), he included cites to treaties in his prisoners rights briefs – if for no other reason, than to educate judges to inform them of U.S. obligations under international law. Perhaps this is why he and Louis Henkin went on to create a colloquium for law students called Human Rights and Constitutional Rights (a course I now teach at Fordham). Playing an educational role on a broader scale, the Aspen Institute hosts seminars for judges — taught by prominent law professors– which includes a focus on human rights treaty obligations.

Today, many of the major civil rights and civil liberties organizations participate in the human rights treaty body system and have been active participants in the recent set of U.S. compliance hearings before the Human Rights Committee, the Committee Against Torture, and the Committee on the Elimination of Racial Discrimination (CERD). Beyond the NAACP LDF (mentioned above), the Lawyers Committee for Civil Rights recently held a congressional briefing on CERD (following last month’s U.S. compliance hearing on CERD) and the national office of the ACLU has a human rights unit dedicated to integrating human rights work throughout the organization.

Like Oona, I’d like to think the U.S. is in a very different place than it was in the 1950s – the high water mark of the Bricker campaign. There is a broad recognition that discrimination (de facto or otherwise) not only insults the concept of human dignity that is at the very core of the human rights idea, but also hampers the ability of the nation to compete globally. For this reason, congressional-executive agreements (CEAs) represent an exciting possibility for moving beyond the Bricker consensus. As I discussed in an earlier post, in light of how underrepresented people of color are in Congress, especially in the Senate, I’m persuaded by Oona’s argument that moving toward CEAs and away from Article II treaties would enhance democracy and reinforce representation of all the People. At the same time, in saying that “the rules we have today are an artifact of historical circumstances that have little continuing validity,” (p. 175) Oona’s article paints with too broad a brush over the ugly history that motivated Bricker, the ways in which that history has been calcified into current day discrimination and segregation, and the innovative use of human rights by civil rights advocates to circumvent this history. Oona’s article is, of course, already quite ambitious and multi-layered, so I’m not recommending that she try to reflect this history in all its richness and complexity. But, it may be helpful to try to finesse this history a bit more and its implications for the treaty-CEA trade off, as the struggle for equality and human rights in the U.S. always has been and will continue to be uncomfortable for the Senator Brickers of the world and those who nurture his legacy. One useful resource is Carol Anderson’s book, Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights, 1944-1955.

Thanks again, Oona, for a terrific read and to Opinio Juris for hosting this fruitful exchange.

CEDAW, Federalism, and Democracy in U.S. International Lawmaking

by Catherine Powell

I’d like to join the conversation prompted by several of the posts, particularly Curt’s insights on federalism and human rights. Federalism has been frequently used as a red herring in the context of ratification debates over human rights treaties. Structural labels such as “federalism” have been invoked with some regularity to veil more substantive concerns underlying resistance to human rights treaties. For example, let’s examine the debate over U.S. ratification the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Gender equality is a national problem that requires national solutions. However, in the 2002 CEDAW ratification debates, structural concerns regarding federalism were advanced to mask substantive resistance to women’s equality. As I’ve explored in greater detail elsewhere, in the ratification debates, treaty opponents cloaked themselves in banners of “constitutionalism” and “federalism” as a way of obscuring the role that culture and cultural stereotypes play in U.S. resistance to women’s human rights. More precisely, by foregrounding federalism, treaty opponents asserted a particular view about localism (and therefore local culture) as a mode for addressing gender inequality, rather than acknowledging that the ongoing disenfranchisement women face has a distinctly national character. (Consider the fact that reproductive rights, Family Medical Leave Act, the Equal Pay Act, and Title VII all involve federal constitutional law and/ or national civil rights legislation, despite objections by “states rights” adherents).

Conservative commentator Phyllis Schlafly expressed what were essentially cultural objections (to what she viewed as CEDAW’s radical approach to family and the role of women in society) by invoking the notions of federalism and limited government. In an article written shortly before the June 2002 CEDAW ratification hearings, Schlafly invoked federalism to assert that CEDAW’s provision concerning family planning “levels a broadside attack on states’ rights.” Schlafly pointedly wrote, “Private relationships should be none of our government’s business, much less the business of the United Nations.” Invoking the principle of limited government, Schlafly also rejected what she viewed as CEDAW’s support for government intervention in the market. She criticized the fact that CEDAW applies to discrimination against women “by any person, organization or enterprise”–a provision that extends the Convention’s protection to private actors, including corporations. Schlafly was also critical of a provision in CEDAW which ostensibly requires equal pay for work of comparable value (a notion reflected in the “comparable worth” doctrine, which some U.S. courts have rejected, though hundreds of companies as well as state and local governments require comparable worth as a matter of course). Relatedly, Schafly complained that CEDAW requires that “subjective” determinations of equal or comparable worth be made (by the government) in lieu of “objective” determinations made (by the market).

As Oona’s article points out, the Commerce Clause authorizes Congress to regulate the private sphere in particular ways (for example, to address gender and other forms of inequality). I share Oona’s broad view of the Commerce Clause. Moreover, so long as the federal government seems able and willing to bail out banks and investment houses, I simply don’t see the constitutional problem with government intervention in the market to address gender inequality. As such, I view the objections to CEDAW as grounded in culture, not constitutionalism.

Indeed, in her testimony before the Senate Foreign Relations Committee, Kathryn Balmforth, a treaty opponent, complained that CEDAW, in requiring equality for women in the workplace, will threaten U.S. culture and values (as she conceived of them), testifying that “These matters, and other matters covered by CEDAW, go to the core of culture, family, and religious belief. . . . The doctrinaire approach of the CEDAW Committee is nothing less than “cultural colonialism,” which attempts to force a radical western agenda which is widely rejected even in the West. It completely ignores the right of women and men, to political, social, and cultural self-determination.” She went on to argue that CEDAW would undermine the traditional role of women as mothers who pass on “culture and values.” These concerns echoed earlier remarks made by Republican Senator Jesse Helms when he chaired of the Senate Foreign Relations Committee and explained his opposition to CEDAW, saying, “[I]t is a bad treaty; it is a terrible treaty negotiated by radical feminists with the intent of enshrining their radical antifamily agenda into international law.” Helms concluded, “This treaty is not about opportunities for women. It is about denigrating motherhood and undermining the family.” As I’ve demonstrated elsewhere, these concerns are misguided and mischaracterize CEDAW (not to mention that these concerns overlook studies demonstrating the positive impact women’s empowerment has on children and families).

Oftentimes, scholars and policymakers assume that cultural and religious objections to women’s human rights are only asserted in by third world governments. In fact, the major rationale behind CEDAW ratification efforts in the U.S. in 2002 was so that the U.S. could sit at the CEDAW table (so to speak) to challenge cultural and religious practices abroad. President George W. Bush spoke of the need to “liberate” the women of Afghanistan in invading that country, and Democratic Senator Barbara Boxer proclaimed that “it is very important to the women of Afghanistan that” the U.S. ratify and “use CEDAW as a diplomatic tool for human rights” there. What is less well-known is how in the United States, cultural claims are sometimes manipulated to advance other interests, including those of male elites, and are, therefore, frequently contested by the very women in whose name these claims are made.

This brings me then to my final point, which is that women are grossly underrepresented in Congress (in roughly equal proportions in the House and Senate). In the 110th Congress, there are currently 365 men and 70 women in the House. In the Senate, there are 84 men and 16 women. (In term, of racial compensation, African Americans and Latinos are more disproportionately underrepresented in the Senate than the House: the House has: 364 white, 40 African American, 23 Latino, and 5 Asian American representatives; the Senate has: 94 white, 40 African American, 3 Latino, and 2 Asian American representatives). Rather than allow CEDAW to be held hostage by a supermajority requirement in the Senate, a congressional-executive agreement, by only requiring a simple majority, would provide women and their allies greater ability to secure passage. (Of course, I recognize that some women, such as Phyllis Schafly, oppose CEDAW, but my hunch is that broader, more inclusive modes of implementing human rights would permit women to accept or reject CEDAW norms based on a fuller understanding of what the Convention offers, rather than allow misplaced cultural objections to defeat the Convention before it even gets out of the Senate Foreign Relations Committee). While I agree with David Bowker’s point that the Treaty Clause was “intended in part to insulate our international commitments from the whims of a popular majority,” the advent of human rights treaties demonstrates a concern for politically disenfranchised groups for whom the supermajority requirement is an almost insurmountable barrier. Moreover, on Julian Ku’s popular sovereignty, a shift away from the supermajority strictures of the Article II treaty route toward the simple majority route may also be a way to reinforce popular sovereignty in a more representative way — that is, in a way that is more attentive to political participation by disenfranchise groups, such a women. I’ll try to come back to this point in a future post on Senate Bricker and the politics of race.

To operationalize Oona’s proposal, consider what might happen if a new Administration introduces CEDAW as a congressional-executive agreement. First, presumably the President could still enter any necessary RUDs. However, in adopting CEDAW as a congressional-executive agreement, Congress could include a sunset clause for periodic review of RUDs and for removal of particular RUDs as they become unnecessary (just as the U.S. reservation on the juvenile death penalty prohibition in the ICCPR became unnecessary with Roper v. Simmons). Second, Congress (with the President) could establish a gender commission that could collect data, monitor implementation, periodically review any RUDs and report to Congress on their continuing necessity, prepare the compliance reports that must be periodically submitted to the treaty body that oversees CEDAW, and provide assistance to state and local governments (along the lines of the assistance the State Department provides to state and local law enforcement to facilitate enforcement the Vienna Consular Convention). It strikes me that none of this is possible if CEDAW is adopted by treaty, unless further implementing legislation is enacted.

An outstanding issue that Oona has not squarely addressed (that may argue for CEDAW to be brought via the treaty route) is the linkage between CEDAW and U.S. v. Morrison. CEDAW’s General Recommendation Number 19 includes gender-based violence in the definition of gender discrimination and the Convention itself requires judicial remedies. In enacting the VAWA civil remedy (struck down in Morrison), I believe Congress failed to adequately document the connection between gender-based violence and the fact that women often flee their homes to escape violence, in ways that impact interstate commerce. In adopting CEDAW as a congressional-executive agreement, Congress could more effectively undertake this fact finding. Alternatively, in ratifying CEDAW as a treaty, enactment of any future civil remedies to challenge gender-based violence could benefit from a Missouri v Holland-type analysis. I’ll be addressing this dilemma further (along with the gender commission concept discussed above) in an upcoming issue brief I’m developing with the American Constitution Society.

A Decent Respect to the Opinions of Mankind

by Catherine Powell

In reading Chris Borgen’s incisive post on Oona Hathaway’s masterfully written article, I was reminded of the American Declaration of Independence. The 1776 Declaration boldly declared, “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another… a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” At first blush, it may seem counterintuitive that the American Declaration reflected a concern with opinions or practices beyond our borders, at the very moment this small band of patriots was declaring its independence. At the same time, American independence occurred within a context of the new country’s inherent interdependence with the rest of the world – a recognition present even at the Founding. In other words, the only way in which the U.S. could envision itself as “a shining city or a hill,” is if it recognized the “valleys and plains” in its midst. Therefore, as Vicki Jackson perceptively notes, comparativism is a key component toward alternatively appreciating or criticizing American exceptionalism.

This then brings me to a central puzzle Professor Hathaway confronts in her article. Why is it that the international law making in the U.S. has flourished and expanded in certain fields – for example trade – even while it has stagnated in other areas – such as human rights? (Note that this is a separate question from whether ratification of human rights treaties leads to an improved human rights record — a topic Hathaway has addressed elsewhere). Many observers approach the gap between the flourishing of international lawmaking in trade and its stagnation in human rights as a question of substance rather than as a question of process. It turns out, Hathaway tells us, that this gap reflects the fact that the process by which international law is made in the trade area is more likely to be by congressional executive agreement (i.e., NAFTA) while the process by which international law is made in the human rights area is exclusively by treaty (i.e., the Genocide Convention).

Along the lines of Martin Lederman and David Golove in their post, I agree with Hathaway that by including the House of Representatives and dropping the supermajority requirement for the Senate, the process by which congressional executive agreements are made is more democratically legitimate than the treaty process. This is not to say that treaties are democratically illegitimate, but, as I have explored elsewhere, the treaty process has its deficits. At a moment when the public is becoming more directly involved in innovative and exciting ways at an international level (whether in the context of demonstrations at international trade negotiations or more formal participation as nongovernmental observers in United Nations (UN) human rights treaty bodies), by contrast at the national level, the public is, at best, less involved or even aware of treaties, and, at worst, skeptical of the efficacy and legitimacy of international institutions that monitor and support enforcement of treaties. Indeed, in the area of human rights, an important new public opinion poll by Opportunity Agenda demonstrates that while Americans are extremely open to the language and values of human rights, Americans are more reticent about international institutions that monitor and enforce human rights treaties. Perhaps then it’s not surprising that while over a hundred nongovernmental organizations went to Geneva last month to participate in the U.S. compliance hearing before the UN Committee on the Elimination of Racial Discrimination (CERD), Senator Barack Obama did not mention CERD in his groundbreaking speech on race earlier in the week.

In a later post, I’ll return to the role race has played in the development of U.S. treaty practice– an issue on which Hathaway provides important new insights.