Foreign Relations of the United States, 1952–1954, United Nations Affairs, Volume III

Hickerson–Murphy–Key files, lot 58 D 33, “Memoranda to Secretary and Under Secretary (General, 1953)”

Memorandum by the Assistant Secretary of State for United Nations Affairs ( Hickerson ) to the Secretary of State ¹

restricted

[ Washington ,] February 9, 1953.

• Subject:
• American Foreign Policy and the Promotion of Human Rights Through the United Nations

Problem:

To examine and re-define United States policies and action in the United Nations relating to the promotion of human rights under the Charter. Such a review is necessary in order to lay down firm policies which will be responsive:

(a) to the need of maintaining United States leadership in rallying and strengthening the free peoples of the world; and

(b) to domestic criticism of specific action taken or contemplated in the promotion of human rights in the United Nations, particularly with respect to the proposed Covenants on Human Rights.

Background:

The following major considerations enter into any reformulation of policy:

1. The promotion and encouragement of respect for human rights and fundamental freedoms by joint and separate action is one of the purposes of the United Nations. The United States, as a Member of the United Nations, must continue to comply with this obligation.

2. In the discharge of this obligation the United States has thus far held a position of leadership ever since the inception of the United Nations. The establishment of the Commission on Human Rights (Article 68 of the Charter) was due to United States initiative in San Francisco. The United States participated actively in the drafting of the Universal Declaration of Human Rights, and supported its completion and approval by the General Assembly in 1948.

3. United States leadership in the promotion of human rights and our championship of the fundamental freedoms has been a significant factor in the cold war. It has helped to bring into focus the basic differences between the countries aspiring to greater freedom on the one hand, and those under the control of totalitarian Communism on the other. It has helped to strengthen the ideological basis for common action on the part of the free nations and for greater unity among them.

4. The United States has participated actively, ever since the submission of an initial draft by the United Kingdom in 1947, in the drafting of a Covenant on Human Rights in the Commission on Human Rights.

In participating in the drafting of such a treaty, the United States has been guided by the following objectives:

(a) To promote and strengthen the observance of human rights which are basic to the maintenance of free and democratic institutions; and

(b) To assure that the final text would conform to American constitutional principles, would in no way restrict or derogate from any rights set forth in the American Constitution, and would not be self-executing.

5. The United States had hoped to confine the proposed Covenant to civil and political rights as set forth in the American Bill of Rights. When a majority vote in the General Assembly called for the inclusion of economic, social and cultural rights, it was due to a persistent effort on the part of the United States that the General Assembly decided on the drafting of two separate Covenants which would permit separate consideration and ratification of one Covenant on Civil and Political Rights and another Covenant on Economic, Social and Cultural Rights.

6. In recent years vocal criticism has developed in the United States concerning United States participation in the drafting of these Covenants, with the expression of fear by many that such international treaties would supersede the Constitution and impose obligations upon the United States destructive of some of the basic concepts of the United States Constitution. Such criticism, initially formulated by a Committee of the American Bar Association, is reflected in the proposed “Bricker Amendment” to the Constitution (S. J. Res. 1).² See Tab A [B]. It has been strongly urged by these groups that the United States should cease to participate in the drafting of the Covenants. This view has been opposed by a number of other groups in this country, however, including the New York City Bar Association.

7. In contrast, there has been evident a growing determination within the UN itself to complete the Covenants. These proposed treaties have to an overwhelming majority of the Members of the UN become symbols of the loftiest aspirations of the UN. Many Asian-Arab-Latin American countries insist on the drafting of treaties for the expression of their aspirations in the field of human rights. For the United States to withdraw at this stage from participation in the elaboration of these treaties would greatly weaken the position of leadership of the United States in the UN as a whole, and would be exploited to the full by countries hostile to the United States, and particularly the USSR.

8. While the Draft Covenants as developed to date (See Tab B [A])³ are not entirely satisfactory from the American point of view, it has proved possible, by and large, to gain acceptance of texts which do conform in essentials to American constitutional principles. Should the United States abandon the Covenants, it is certain that before their completion, the texts would substantially deteriorate and articles would be included utterly unacceptable to the United States. The Covenants will no doubt serve as accepted standards of conduct after their approval by the UN, whether the United States does or does not ratify them.

Recommendations:

It is recommended:

1. That the United States should continue to participate actively in all measures considered in the United Nations for the promotion of respect for and observance of human rights and freedoms.

2. That, with regard to the Covenants, the United States should continue to participate in the drafting of these treaties in order to achieve the best possible results. In doing so, the United States should avoid being “out in front,” but should assume its responsibilities as one of the 60 Members of the Organization. United States Representatives should as appropriate point out that there are many ways other than through the Covenants to promote more effectively human rights and freedoms, particularly in the field of economic, social and cultural rights. See recommendation 4 below for an elaboration of this point. If a majority view develops in the UN for a further delay in the completion of the Covenants, United States representatives should support this view.

3. That in drafting the Covenants the following policies be observed:

(a) Support the drafting of two separate Covenants, one Covenant on Civil and Political Rights and the other Covenant on Economic, Social and Cultural Rights, in order to stress the sharp differences between these two groups of “rights.”

Civil and political rights are of such a nature as to be given legal effect promptly by the adoption of legislation or other measures as may be necessary. Since these rights, as now embodied in the draft of the Covenant on Civil and Political Rights are generally in line with the American Bill of Rights, ratification of this first Covenant by the United States would not restrict or derogate from rights under the United States Constitution.

Economic, social and cultural rights, while spoken of as “rights” are, however, to be recognized as objectives to be achieved progressively by private as well as public action, subject to available resources.

(b) In the light of (a) above, the United States should lend support primarily to the Covenant on Civil and Political Rights. While cooperating in the drafting of the Covenant on Economic, Social and Cultural Rights, the United States should not hesitate to express its doubts regarding the usefulness of such a Covenant since it deals with matters which, in many instances, do not lend themselves to legislation.

(c) Support the retention of language in the Covenants to assure that they are non-self-executing.

(d) Support the retention of language in the Covenants to make it clear that they will not in any way restrict or derogate

(e) Urge the inclusion of a federal state article in the Covenants to make it expressly clear that the obligations of a federal state, such as the United States, under the Covenants will be limited to matters which, under the Constitution of the country, are within the federal jurisdiction and to ensure that the constitutional balance between the powers delegated by the federal Constitution to the federal government, on the one hand, and the powers reserved to the States, on the other hand, would not be altered by the Covenants.

(f) Oppose the inclusion of provisions in the Covenants to authorize the proposed Human Rights Committee to receive or consider complaints or petitions from organizations or individuals concerning alleged violations of the Covenants. If such provisions are included, the United States should urge that they be set forth in a separate protocol or protocols.

(g) Support the inclusion of non-judicial procedures in the Covenant on Civil and Political Rights relating to complaints with respect to alleged violations of the Covenant, limited to States Parties to the Covenant and simply authorizing the proposed Human Rights Committee to ascertain the facts in each case and make available its good offices to the States concerned, with a view to a friendly solution of the matter on the basis of respect for human rights as recognized in the Covenant. A report should be prepared by the Committee on each case and published by the United Nations.

If these policies are fully reflected in the Covenants as finally approved, and particularly in the Covenant on Civil and Political Rights, the objectives of the “Bricker Amendment” (S.J. Res. 1) would be attained (see Tab A [B]).

4. That the Department consider and propose, as appropriate, other and possibly more effective methods of promoting human rights such as:

(a) Less ambitious and more specific international treaties or recommendations (for instance the Convention on Political Rights of Women or the Declaration on the Rights of the Child).

(b) Fuller information and publicity regarding constructive measures adopted by various countries to advance human rights. In this connection consideration might be given to the appointment of a Rapporteur on Human Rights, similar to the appointment of a Rapporteur on Freedom of Information by the Economic and Social Council at its 1952 session.

(c) An exchange of experience regarding measures taken in various countries to overcome disrespect for human rights particularly in the field of discrimination.

(d) The improvement of living standards which require economic and social measures rather than legislation.

(e) The fuller development of mass media, particularly in the under-developed countries to assure greater freedom of information.

5. That as a corollary of 4(a) above, the President authorize the signature on behalf of the United States of the Convention on the Political Rights of Women completed at the 1952 session of the General Assembly (see Tab C)³ and the approval by the Senate of the Genocide Convention (see Tab D).⁴ Appropriate understandings or reservations will have to be filed with each of these conventions. The ratification of the Genocide Convention by the United States is particularly urgent. The Convention is already in force with 40 countries having adhered to it. Non-ratification by the United States has deprived us of the opportunity to make full use of the Convention in branding as Genocide basic policies and actions of the USSR and its satellites.

6. That the United States take every opportunity to expose and publicize the violation of human rights and freedoms by the USSR and its satellites, as illustrated by forced labor in these countries, religious persecutions and the disregard of basic principles of justice in the trial and punishment of persons in these countries.

Clearances:

This memorandum has been cleared by L.

[Attachment—Tab B]

S.J. Res 1 Submitted by Senator Bricker and Other Senators on Treaties

S.J. Res. 1 submitted by Senator Bricker and a number of other Senators in the 83d Congress lists three tests with respect to treaties.

1. “A provision of a treaty which denies or abridges any right enumerated in this Constitution shall not be of any force or effect.”

This test is proposed to be met by recommendation 3 (d). Under this recommendation, the Covenants would expressly provide that they are not in any way to restrict or derogate from any right in the United States Constitution. As a matter of fact, Justice Field in 1890 pointed out in Geofroy v. Riggs that the treaty-making power of the United States “does not extend ‘so far as to authorize what the Constitution forbids’.”

2. “No treaty shall authorize or permit any foreign power or any international organization to supervise, control or adjudicate rights of citizens of the United States within the United States enumerated in this Constitution or any other matter essentially within the domestic jurisdiction of the United States.”

This test is proposed to be met by recommendations 3(f) and 3(g). Under these recommendations, the Human Rights Committee proposed to be established under the Covenant on Civil and Political Rights would have no authority to receive or consider complaints or petitions from a citizen of the United States or from any other individual. Also, the proposed Human Rights Committee would not be authorized “to supervise, control or adjudicate” rights or any other matters. The Committee would simply ascertain the facts in each case and make available its good offices to the countries concerned with a view to a friendly solution of the matter. A report of its efforts would then be prepared by the Committee and published by the United Nations. The Committee would address itself only to the obligations of countries under the Covenant.

3. “A treaty shall become effective as internal law in the United States only through the enactment of appropriate legislation by the Congress.”

This test is proposed to be met by recommendation 3(c). Under this recommendation, it is proposed that language be retained in the Covenants to assure that they are non-self-executing; that is, that they will not be enforceable as such in the courts of the United States. They will require implementing legislation to the extent such legislation has not already been enacted, and it will be this legislation that will be enforced in the courts of the United States.

1. The source text was an attachment to a covering memorandum of Feb. 12, 1953, from Hickerson to Secretary Dulles, which read in part: “In a democracy it is appropriate that from time to time policies being followed be re-examined and reviewed. The change of administration makes this a particularly appropriate occasion for such a review. I asked my Bureau, in association with the officers in the Legal Adviser’s Office who have worked on the problem, to make a complete review of our policy respecting the promotion of human rights through the United Nations. I enclose a copy of this review for your consideration.…”
2. For documentation on the Bricker Amendment, see volume i .
3. Texts of the Draft Covenants on Human Rights are not printed in Foreign Relations, but a detailed analysis of the draft articles is printed in Foreign Relations, 1951, vol. ii, pp. 735 ff.
3. Tab C “Convention on Political Rights of Women,” not printed here. The General Assembly of the United Nations voted on Dec. 20, 1952 to open for signature and ratification at the end of its 7th Regular Session (1952–53) the Convention on the Political Rights of Women. For text of the convention, see United Nations, Official Records of the General Assembly, Seventh Session (during the period Oct. 14–Sept. 21, 1951), Resolutions, p. 28.

4. Tab D “Convention on the Prevention and Punishment of the Crime of Genocide” (not printed here). The convention was approved by the General Assembly on Dec. 9, 1948 and came into force on Jan. 12, 1951 (40 countries having ratified or acceded to the convention). For text of the Genocide Convention, see United Nations, Official Records of the General Assembly, Third Session, Part I, Resolutions, 174–177. President Truman forwarded the Genocide Convention to the Senate for ratification on June 16, 1949; for documentation, see Foreign Relations, 1949, vol. ii, pp. 384 ff. For documentation on the U.S. position in support of the convention in the deliberations at Paris in 1948 leading to the adoption of the Genocide Convention by the General Assembly, see ibid., 1948, vol. i, Part 1, pp. 295–302.

   Subsequently, in 1953, Secretary of State Dulles indicated in testimony before a Senate Judiciary subcommittee that the Executive Branch did not propose to press for approval of the Genocide Convention.