The United States and Human Rights Treaties: Race Relations, the Cold War, and Constitutionalism

The United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. Many commentators attribute this phenomenon to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address racial segregation and discrimination in the South. As this essay explains, the guarded and qualified U.S. relationship with human rights treaties stems not only from a particular moment in history but also is a product of more enduring, and less obviously problematic, features of the U.S. constitutional system. 1. This essay considers the history of the U.S. relationship with international human rights treaties. This relationship is sometimes described as being paradoxical or even hypocritical, in that the United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. The United States did not begin to ratify any of the major human rights treaties until the late 1980s, and it still has not ratified a number of them, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Convention on the Rights of the Child. Moreover, for the human rights treaties that it has ratified, the United States has qualified its consent to the treaties by attaching extensive reservations, understandings, and declarations, or “RUDs”. 2. Many commentators attribute the complicated U.S. relationship with human rights treaties to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives in the United States resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address racial segregation and discrimination in the South.1While this historical claim is not inaccurate per se, it provides an incomplete picture in that it under-emphasizes the Cold War fears that many people had at the time about the spread of communism abroad and the threat of totalitarianism at home – concerns that, fairly or unfairly, became linked to the developing human rights project. More importantly, an emphasis on the particular historical context of the late 1940s and early 1950s does not explain why the complicated U.S. relationship with human rights treaties has persisted even after the end of racial segregation and after the end of the Cold War. As I will discuss, the guarded and qualified U.S. relationship to human rights treaties stems not only from a particular moment in history but also is a product of more enduring, and less obviously problematic, features of the U.S. constitutional system