Policy, and Internationally
Recognized Human Rights
Conventional wisdom holds that in times of war and national emergency the president dominates the making of foreign policy. At other times the Congress supposedly asserts itself but is so fragmented that, while it can joust with the president over that policy in important ways, it cannot achieve sustained co-equal status. A partial review of the congressional record with regard to internationally recognized human rights suggests that most of the conventional wisdom remains valid. But the Senate, on the basis of its power to block and revise, has persistently displayed co-equal influence with regard to human rights treaties. The situation is otherwise with regard to humanitarian intervention.
The Clinton administration led NATO in a sustained bombing campaign of Yugoslavia during the first half of 1999, the primary goal of which was to alter the systematic persecution and forced displacement of ethnic Albanians living in Kosovo. While the bombing lacked a clear and persuasive legal rationale under international law, it is widely seen as contributing to an emerging modern doctrine of humanitarian intervention. Such a doctrine would permit the use of military force by states, even when not approved by the UN Security Council, to oppose gross violations of internationally recognized human rights.
Whether legal or illegal under international law, this 1999 bombing campaign was clearly war, or in the terms of modern international law, an international armed conflict. The Clinton administration so admitted by agreeing: that the 1949 Geneva Conventions for Victims of War applied to the situation, and that the International Criminal Tribunal for Former Yugoslavia had the jurisdiction and authority to inquire into whether war crimes had been committed through military action in the territory of the former Yugoslavia.
The central point for present purposes is that Congress played no decisive role in these events, notwithstanding its Republican majority and pretensions to assertiveness. It was not consulted in any significant way prior to the initiation of the bombing campaign, nor did it seek to formally approve the military action through a declaration of war. As long as the military action was conducted without significant loss of American life (incredibly, the bombing was conducted without loss of a single American life due to combat), Congress was essentially deferential to presidential decisions regarding the use of force.
Thus the Kosovo military campaign fit with the usual pattern of modern U.S. diplomacy involving use of force abroad. The president has the political power to make war, and only if there is the prospect or actuality of significant loss of American life (however subjectively determined) does the Congress enter the picture in any important way. President Clinton was able to do essentially the same in Haiti as in Kosovo (although he got UN Security Council approval first) - namely, deploy the U.S. military for human rights reasons (restore an elected leader and stop the flow of asylum seekers) without significant involvement of Congress, as long as appreciable numbers of Americans were not really put in harm's way. He was able to do essentially the same in Bosnia, 1992-1995, where NATO (and U.S.) bombing of Serb positions occurred. The president did essentially the same in Iraq after Desert Storm, where U.S. and allied bombing continues to this day. The president alone decided whether the U.S. would engage in humanitarian intervention in Rwanda in 1994 to stop genocide. In all of these situations the Congress was reduced to the role of sideline spectator, despite occasional speeches, debates, and committee hearings. Congress as a corporate body took no important decisions.
What Congress did do, regarding Lebanon in 1983 and Somalia in 1993, was to signal to the president that extant military involvements were about to undergo critical congressional scrutiny, and that the president had best change course lest he face a protracted struggle on Capitol Hill. This protracted struggle is exactly what transpired regarding the Reagan administration's support for the Contras and their effort to unseat the Sandinista government in Nicaragua. Even without formal declarations of war, the Congress can convey critical public opinion and can use public discourse to send important signals.
The central point remains. Whether humanitarian intervention emerges as a clear doctrine in international law, supported at least sometimes by the United States, depends primarily on the president and not on the Congress. Congress can harass a president over a controversial military deployment, but the initial deployment, especially one that succeeds at low human cost, is firmly controlled by the president. If we should have "humanitarian war" during the administration of George W. Bush, it will not be because the Congress so decides.
The Senate is a much more important player when it comes to the area of advise and consent, and it has long helped determine the fate of human rights treaties in Washington. Human rights treaties are really a type of transnational policy, with much potential impact on the U.S. at home. (But likewise, the issue of war powers impacts the domestic question of who makes the decision at home for the use of force abroad.)
Almost from the beginning of the United Nations era, the Senate has been home to influential nativists and unilateralists. (The fact that such members of Congress existed before 1945, or also are to be found in the House, falls outside the bounds of the present short essay.) By whatever name, these senators have believed strongly in the radiating goodness of American nationalism and state sovereignty, and they have been skeptical of international developments that might trump the U.S. constitution - as traditionally understood - or the independence of Washington policymaking. From Joe McCarthy to Jesse Helms, from John Bricker to Orin Hatch, these senators have been skeptical about many human rights treaties, especially those negotiated through the United Nations. To these senators, many of whom have exercised considerable influence, human rights is something defined by the American experience at home and preached to others, not something defined by international experience that might cause change in the United States. Senate attitudes toward UN human rights treaties take several forms, but these forms mostly reflect varying dimensions of assertive hostility.
Some human rights treaties are so controversial in the Senate that presidents who favor them, or might like to favor them, do not really or seriously seek advice and consent as a step toward ratification. Presidents Carter and Clinton both endorsed the International Covenant on Economic, Social, and Cultural Rights, but never really sought to obtain advice and consent. The game was not worth the candle to them. The struggle that was sure to evolve was not worth the use of presidential time and influence that would be involved. The probability of a favorable outcome was slight. Particularly, Carter believed that all human beings have a fundamental personal right to adequate food, clothing, shelter, and health care, whether or not they could purchase such in markets. But the United States was not founded on such notions, and endorsing this type of fundamental change in thinking was anathema to many Senators - smacking as it did of socialism and large bureaucracy.
In this same category one could fit the Treaty on the Rights of the Child, which the president signed but which was seen as dead on arrival in the Senate. The controlling Senate view was that protecting children was the primary responsibility of the parents, not the state. And that if a state role was needed, it was to come not from the federal level (much less from the international level) but from the internal state governments. There were other controversies as well, such as the definition of child soldiers, so the U.S. remained with Somalia as the only two states out of some 190 to formally reject this human rights treaty.
Also in this category one could place the Rome Statute of the International Criminal Court (ICC). The Clinton administration helped to negotiate the rules of this permanent international court with jurisdiction over war crimes, crimes against humanity, and genocide. But given strong opposition from several senators like Jesse Helms - and the Pentagon - the Clinton administration voted against the statute in the summer of 1998 in Rome, and at first promised to work against its coming into effect in that form. Clinton only signed the treaty in the waning days of his administration, and he did not submit it for advice and consent but rather called for further study by the incoming Bush administration.
The superficial arguments against the court centered on the prospects of a rogue prosecutor seeking bogus indictments of U.S. military personnel. But given that the ICC would only function if a state proved negligent in responsible investigation and prosecution itself, and given that the prosecutor was restricted by all sorts of safeguards against abuse of power, these criticisms were really smokescreens for the deeper argument that no international court should ever have jurisdiction over an American. It might be fine for the ICC to judge Canadians, or Italians, or French, etc., but not Americans. We do not know for sure if President Clinton personally favored the court, although we know that some persons in his administration did. But once the Pentagon indicated its opposition, and also Senator Helms who of course headed the Foreign Relations Committee, it proved impossible for the court's supporters to try to advance it.
A second category comprises those human rights treaties that are given advice and consent by the Senate and are then ratified by the executive, but they are essentially emasculated in the process. A chief example is to be found in the International Covenant on Civil and Political Rights, signed by President Carter and finally given advice and consent by the Senate in 1992. The Senate, however, attached so many reservations, understandings, and declarations (RUDs) to its resolution of approval that the effect of the treaty was essentially null in the United States. The RUDs meant, in the final analysis, that the U.S. would have to make no changes in its domestic legal order, and individuals could not make use of the treaty in Federal Courts. Some other states like the Netherlands formally challenged the RUDs to the Civil-Political Treaty as being inconsistent with ratification - and with good reason. So in this category, the U.S. goes through the motion of formal acceptance of a human rights treaty, but indicates that the U.S. status quo will prevail. One has a symbolic U.S. association with the treaty, but without any legal (or behavioral) consequences.
Closely related is the Senate's acceptance of a human rights treaty but only with a major reservation. Here one could place the 1948 Treaty Against Genocide, ratified by the U.S. in 1984 only after the Senate reserved against allowing the World Court (The International Court of Justice) to determine the existence of genocide. (The Senate's advice and consent was partially the product of tireless lobbying for it by Senator William Proxmire.) Thus the U.S. formally accepts the treaty but reserves to itself the right to determine when genocide occurs. In 1994 the Clinton administration engaged in semantical gymnastics to try to maintain the legal fiction that genocide was not occurring in Rwanda. Under the Genocide Treaty, parties are obligated to take action to stop genocide. (When the Clinton administration undertook this line on Rwanda, for which it later apologized, there was no hue and cry in the Congress for a proper response to the atrocities then occurring. There was a bipartisan and bi-branch agreement in Washington that the difficulties of Somalia the year before were not to be chanced in Rwanda.)
Finally, there are human rights treaties that are ratified by the U.S. and given some subsequent attention in law and policy. Here one finds not only the Geneva Conventions of 12 August 1949 for Victims of War (covering human rights in armed conflict), but also the 1951 Refugee Convention and 1967 Protocol, and the UN Convention on Prohibition of Racial Discrimination. Formal acceptance does not imply the absence of subsequent violations, and in the case of the Refugee Convention its guardian, the Office of the UN High Commissioner of Refugees, believed the U.S. violated the terms of the treaty when dealing with Haitian boat people interdicted outside U.S. territory. A majority of the U.S. Supreme Court disagreed, however, upholding the U.S. interdiction program.
But even with regard to this category of genuinely accepted human rights treaties, Senate nativists and others are sometimes influential. With regard to the UN Convention on Racial Discrimination, Senator Helms objected when the UN supervising body, authorized to review a required U.S. report, dared to raise critical questions about the U.S. record of compliance. As usual for Senator Helms, the core issue was the audacity of an international body in questioning the U.S. record on a human rights matter. Different was the U.S. difficulty in formally accepting the 1977 Protocol I, additional to the 1949 Geneva Conventions. Israel and its friends in the U.S. Senate feared that some language in the protocol might confer a certain status on those fighting for Palestinian rights. This senatorial concern, combined with other concerns by the Pentagon, kept all administrations since 1977 from endorsing either of the two protocols.
So in different ways on different categories of human rights treaties, it is easy to see that the Senate is indeed a major player in U.S. foreign policy, probably co-equal with the executive branch. While presidents lead in negotiations, they cannot lightly disregard views found in the Senate. Senatorial nativists/unilateralists have been especially influential. Ever since the eras of McCarthyism and Brickerism, human rights treaties have often been seen as controversial in Washington, and this is primarily because of views found in the Congress, not so much in the executive. Again it should be stressed that we are dealing with a transnational subject entailing domestic implications. But also again, that same logic obtains for the subject of war powers as well.
If we look at war powers as applied to human rights concerns, the conventional wisdom on Congress looks valid. Congress remains clearly secondary to the president - even in times of general peace, even when it has pretensions to be assertive, and even when it is controlled by a political party that does not control the White House. Much foreign policy is made by the president alone, and this certainly holds for what is called humanitarian intervention. But when we look at how the Senate uses its advise and consent prerogatives, the conventional wisdom seems in need of some refinement if not revision. Clearly the Senate co-determines the fate of human rights treaties. This is certainly in part because these treaties are supposed to impact the United States at home, and thus give rise to deep concern by those in the Congress who are devoted to American exceptionalism. But the question of war powers and humanitarian intervention also has important domestic considerations, namely the fate of constitutional provisions concerning who can take the nation to war.
The key to congressional influence on advice and consent of human rights treaties is the position of the nativists or unilateralists, who are strongly committed to their ultra-nationalist views and who hold a number of leadership positions. In this short essay I will not try to gauge their numbers. They are far more numerous than their leading figures such as Jesse Helms and Orin Hatch. One can debate how many of their colleagues really share their views, how much of the American public really identifies with them, and how much even presidents like Reagan and Bush senior have disagreed with them. But they have prevailed and have taken the Congress with them.