It’s no secret that the United States’ approach to certain international human rights issues has generated controversy. When Congress ratified the International Covenant on Social and Political Rights, for example, it attached a number of qualifications that the international community viewed as inconsistent with the treaty’s object and purpose. In light of these and many other controversial decisions, it may appear, at first glance, that the United States has failed to commit itself to the progress of international human rights. But is this really the case, or does the U.S. government have compelling rationale for its reluctance to submit to certain international norms?
International human rights law, as we know it today, largely originated after World War II. Its development and incorporation into the general body of international law represented a paradigm shift in the way states interacted on a global level. Historically, international law governed in instances in which it was impractical or useless for states to regulate on their own, producing bodies such as international trade law and the law of the sea. After World War II, however, states began to recognize the need to prevent atrocities of the kind witnessed in Europe and Asia. For the first time in history, the global community viewed international law as a means by which it could regulate the way states interacted with their citizens. Gradually, international law began to recognize human rights through various mechanisms.
In 1966, the United Nations presented two treaties for ratification: the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Initially, the Human Rights Commission planned for the two covenants to be part of one document, viewing them as “interconnected and interdependent.”  Members disagreed widely, however, on the feasibility and necessity of guaranteeing economic and social rights, and the Commission eventually decided to split the treaty into two separate covenants. The United States ratified the ICCPR with a number of reservations and has yet to ratify the ICESCR.
The U.S. played a significant role in drafting the ICCPR, and the provisions largely fit within the political tradition of the Bill of Rights. Nevertheless, Congress didn’t ratify the treaty until 1992 – nearly thirty years after it was first presented for ratification. Aside from a concern held by a select group of Americans regarding the contradiction between discriminatory practices and developing international norms, U.S. officials were concerned about interference with the doctrine of federalism. Conservatives feared that the treaty would necessarily expand the power of the federal government and undermine state authority to regulate matters traditionally considered local. Though these concerns eventually gave way to ratification of the treaty, they were still present in full form when the treaty was ratified. Pursuant to the Vienna Convention’s provision on treaties and their interpretation, the United States qualified its ratification of the ICCPR with a number of reservations and declarations. Controversially, the Senate also declared that the Articles of the Covenant were not self-executing, essentially rendering them obsolete in domestic courts.
In effect, the Senate’s reservations to the ICCPR fundamentally altered the operation of the Articles to which they pertained. Not surprisingly, they were met with a great deal of criticism from the international community. A number of European states objected to the U.S. reservations, and the Human Rights Committee (established by the ICCPR) felt that the reservations undermined the Covenant and its implementation. It viewed the reservations as essentially incompatible with the purpose of the Covenant and general human rights law. Despite the controversy, however, the majority of the objecting states indicated that they did not want the United States to be excluded as a party to the Covenant.
The international criticism may have some merit. How can the United States, a nation that proclaims to be dedicated to human rights and the prevention of government atrocity, refuse to accept a human rights covenant it helped draft? Moreover, how can the U.S. expect to criticize states’ treatment of their citizens when it has failed to fully incorporate an international human rights treaty into its own body of law? On the other hand, a closer look at the Articles and their corresponding reservations may provide justification. For example, the first formal reservation was tied to Article 20 of the Covenant, which prohibits hate speech and propaganda for war. Given the rich tradition of free speech provided by the First Amendment, the reservation explained that the “United States [could not] accept such an obligation.” Another Article of the Covenant prohibited the death sentence for persons below eighteen years of age. Because the Supreme Court had upheld state laws permitting the death penalty for crimes committed by persons sixteen and up, the U.S. found the prohibition unacceptable.
Furthermore, a number of the ICCPR’s provisions regulated matters which were, and still are, considered to be within the boundaries of state law. Articles governing certain aspects of criminal law and marriage, for example, would necessarily intrude into the states’ police powers if they were given domestic effect. The federalist structure of the U.S. government is a central concern in many aspects of federal law, and international law should not be an exception. Because the U.S. government, by ratifying the ICCPR, could be placed on the hook for matters it does not traditionally have the power to regulate, reluctance to accept international scrutiny in the field of human rights is at least somewhat understandable.
The failure to ratify the International Covenant on Economic, Social, and Cultural Rights is also consistent with the traditional notion of rights in the United States. The guarantees of the ICCPR were at least structurally consistent with the U.S. Bill of Rights – they provided individuals with negative rights, or freedoms from unlawful and unjust action of the state. The ICESCR, however, sought to provide individuals with rights which a state would need to take positive action to promote. The United States and a number of other western nations argued that the provisions of the ICESCR, providing guarantees such as employment, fair wages, and paid holidays, were largely infeasible and inconsistent with western traditions. Accordingly, the United States has yet to ratify the ICESCR.
Despite the reluctance to submit to a number of these international obligations, it would be difficult to argue that the American people have not been committed to the development of human rights. Public pressures, the political process, and the American judicial system have all led to enormous strides in the guarantees held sacred in our nation. At the beginning of the 1800’s, slavery was legal and women were denied the right to vote. Over the next two centuries, the American people worked to abolish slavery and recognize African Americans as equal citizens. Women won the right to vote and have championed their way into the workforce and political sphere. And even today, Americans continue to fight, often successfully, for their rights and the rights of fellow humans. In short, one could argue that the domestic forum has adequately developed a comprehensive guarantee of certain rights for all Americans.
Given the conflicts between American federalism and certain provisions of human rights treaties, the “correct” approach to international human rights law may not exist. Protecting state authority and limiting the power of the federal government is certainly a tenable concern. The ICESCR would also commit the United States to the provision of unprecedented positive rights, some of which are arguably infeasible in light of an enormous budget deficit and hotly contested federal fiscal policies. And the American people have come a long way in recognizing new and important rights without any help from the international community.
On the other hand, international covenants provide a comprehensive and substantive body of human rights law. States that ratify treaties such as the ICCPR are technically legally bound, and the Covenant provides an actual standard through which international actors can be accused of violation. Instead of simply criticizing human rights violations on an individual basis, the Covenant allows the United Nations to point to specific provisions when accusing a state of violation. Therefore, if the United States fails to fully ratify the treaty, it is difficult for us as a nation to criticize the action of states such as Iraq and the Sudan on a legal basis.
The issue of whether the United States should fully submit to international human rights obligations is more complicated than it appears. While substantive bodies of international law provide legal ground for criticism of human rights violations, they can also complicate the relationship between the federal government and the states. Some provisions even directly conflict with American values such as permissive free speech, and the domestic forum has largely been adequate in developing human rights in the United States. In light of these considerations, the proper approach to international human rights law will likely remain unclear.
 Human Rights Committee, General Comment 24, U.N. Doc. A/50/40, Vol. 1, at 119 (1995)
Jeffrey L. Dunoff et al., International Law: Norms, Actors, Process: A Problem-Oriented Approach 403-404 (3rd ed. 2010).
G.A. Res. 543 (VI), U.N. Doc. A/RES/543(VI) (Feb. 1952).
 Dunoff et al., supra note 2, at 436.
 Id. at 440.
 Annotations on the Text of the Draft International Covenants on Human Rights, ¶ 9, U.N. Doc. A/2929 at 7 (1955).
 Dunoff et al., supra note 2, at 442.
 International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966).
 Senate Executive Rep. 102-123 (102d Cong. 2d Sess. 1992).
 Annotations on the Text of the Draft International Covenants on Human Rights, ¶ 9, U.N. Doc. A/2929 at 7 (1955)
 Dunoff et al., supra note 2, at 451.