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The Universal Declaration of Human Rights: Fifty Years Young

United Nations Update Fall 1998

On October 14, 1998, The International Relations Committee of the DC League of Women Voters sponsored a panel discussion to observe the fiftieth anniversary of the Universal Declaration of Human Rights. The following papers are based on presentations made at that meeting or written in consultation with the presentor.

Margaret Galey,
former staff member, U.S. House of Representatives, Committee on Foreign Affairs; essayist
Joseph Mettimano, Assistant Director for Public Policy, U.S. Committee for UNICEF; Chair, Washington Working Group on the Rights of the Child
Ruth Nadel,
immediate Past President, Clearinghouse for Women's Issues; Co-Chair, Woman's National Democratic Club Global Women's Task Force

Congress and the Universal Declaration of Human Rights
by Margaret Galey

The Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948, identifies a full range of internationally recognized human rights. A common standard of achievement for governments and peoples throughout the world for fifty years, it enumerates political and civil rights found also in the U.S. Bill of Rights and the earlier French Declaration of the Rights of Man as well as economic and social rights derived from more contemporary sources such as President Franklin Roosevelt's Four Freedoms.

Declarations, Covenants and Conventions: A declaration is an international declaratory measure adopted by governments, usually in the UN General Assembly. It does not require signature or ratification by governments and is not generally binding. The Universal Declaration, however, is a special case. It is regarded as having binding legal quality because it has been incorporated so often in constitutions of states as well as in hundreds of UN resolutions and conventions.

In 1948, fifty-eight member states of the UN adopted the Universal Declaration after thorough scrutiny and 1,400 rounds of voting on practically every word and clause. Since then, over 100 new states have joined the UN. Almost all of them have incorporated the text of the Declaration in their constitutions. This reiteration and reaffirmation of the principles and authority of the Declaration has caused legal scholars to consider the Declaration international customary law. This contrasts with international covenant and convention law, which derives from negotiating and adopting covenants and conventions, and requires ratification by states to be legally binding.

The UN Commission on Human Rights, under the leadership of Eleanor Roosevelt, was the institutional source of the Declaration itself. Subsequent Declarations, Covenants and Conventions have almost always been negotiated within the UN Commission on Human Rights, the only Commission specifically called for in the UN Charter itself.

The Role of Congress: As probably the most important rule- making body in the world, Congress lends great weight to the large majorities that have adopted resolutions on human rights in the UN General Assembly when it endorses principles such as those in the Declaration. When the Senate refuses its consent to a human rights initiative endorsed by the UN General Assembly, it withholds the authority of one of the UN's leading members.

Congress initially paid little attention to the Declaration since, as a declaration, it did not require ratification. In the years since Vietnam, however, Congress has taken the initiative in the field of human rights, using the standards offered by the Declaration to achieve its aims. It amended foreign economic and military aid legislation by providing that promoting internationally recognized human rights was a goal of US foreign policy. No military or economic assistance could be granted if the recipient country was engaged in a pattern of gross violation of internationally recognized human rights.

In 1977, Congress legislated a Bureau of Human Rights and Humanitarian Affairs headed by an Assistant Secretary in the Department of State to administer the human rights program.. Now known as the Bureau of Democracy, Human Rights and Labor, this Bureau prepares Country Reports on Human Rights Practices in response to Congressional mandate. These annual reports, which were initially prepared only for countries receiving US assistance, now include all UN members. Congress has also approved country-specific measures on human rights that prohibit aid to particular countries unless the President certifies that the country is not engaged in gross violations of human rights. For example, aid is currently prohibited to Mauritania unless the President certifies that it has taken action to eliminate chattel slavery.

There are also Congressional Caucuses on human rights — for women, blacks, Hispanics, and human rights in general. These caucuses concentrate on those areas considered by their leaders and members to need more attention than mainstream congressional committees may give.

The Special Role of the Senate: The US Senate must, under the Constitution, give advice and consent to treaties before the President ratifies.. These steps are part of the treaty ratification process. In addition to signing a treaty, the President must take a specific decision to ratify it. Before this can happen, the Secretary of State must coordinate review of the treaty by relevant US government agencies, following which the Secretary must submit a recommendation that the treaty be ratified. The President in turn transmits this decision to the Senate which, under the Constitution, must give its advice and consent before the President ratifies. The Senate Committee on Foreign Relations then convenes hearings and casts a majority vote for or against the treaty. This is the point at which reservations, declarations or understandings are attached to the treaty. If adopted by the Committee, it is reported to the full Senate where a two-thirds vote of consent is required.

Finally, Ratification: Once the Senate approves the treaty and sends it to the President, the President ratifies it. He must then deposit the instruments of ratification, i.e., the text of the treaty with the Senate consent and the seal of the government, with the Secretary-General of the United Nations. This act means that government consent is public, as is the treaty text, and that there are no secret covenants secretly arrived at, considered by some to have helped start World War I. Very often, the Senate and the House must also enact legislation to implement the provisions of the treaty within United States law. This may mean legislation to authorize changes in the US code or to appropriate the necessary funds.

Human Rights — The US Ratification Record: For about forty years, from about 1948 when the General Assembly adopted the Declaration through the 1980s, the US record of ratifying human rights treaties was quite dismal. The U.S. had signed but not ratified the Covenant on Civil and Political Rights and the Covenant on Economic and Social Rights which, together with the Declaration comprise the International Bill of Rights. It had signed but not ratified the Genocide Convention. The U.S. also signed but did not ratify the conventions on eliminating racial discrimination and discrimination against women and the torture convention. A major reason for this failure to ratify was the influence of the conservative view that such treaties might infringe upon US cherished rights by enabling a foreign power or international organization to tell the US Government what to do about the human rights of its citizens. This attitude was articulated by Ohio conservative Republican Senator Bricker whose constitutional amendment on the subject was narrowly defeated in the 1950s. It is also reflected in US actions, beginning in the late 1980s, to ratify major human rights treaties on civil and political rights, genocide, torture and racial discrimination with reservations, understandings and declarations, so called RUDs. These RUDs qualify US adherence and have evoked wide criticism from abroad as well as at home. Some ten foreign states have objected to one or more of the RUDS attached to the Covenant on Civil and Political Rights, while the RUDs have attracted criticism in the U.S. for distorting the treaty-making process under the US Constitution. Promoting a review of the US ratification process, including the RUDs and achieving Senate consent to the Convention on Elimination of all Forms of Discrimination against Women and the Convention on the Rights of the Child should be our immediate goals in the field of human rights.

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The Convention on the Rights of the Child
Based on presentation by Joseph Mettimano

In keeping with its menu on Human Rights issues and in recognition of the particular vulnerability of children, the United Nations General Assembly adopted — unanimously — The Convention on the Rights of the Child (CRC) on November 20,1989. This convention expands and updates the moral framework addressed in the Declaration on the Rights of the Child adopted by the General Assembly thirty years earlier.

The Convention establishes a set of goals for individual nations to achieve on behalf of their children. In general, it calls for:

  • protection from violence, abuse, and abduction;
  • protection from hazardous employment and exploitation;
  • adequate nutrition;
  • equal treatment regardless of gender, race or cultural background;
  • the right to express opinions and freedom of thought in matters affecting them;
  • safe exposure/access to leisure, play, and culture.

All of these goals are expressed with respect to the child's age and evolving capacities — the child's best interests are always the paramount concern. Moreover, the Convention is supportive of the family unit and repeatedly emphasizes the primacy of the role, authority, and responsibility of parents.

The CRC is the most widely and rapidly ratified human rights treaty in history, with 191 participating nations. Only two countries, Somalia and the United States, have not ratified. Since Somalia does not have the governmental capacity to ratify a treaty, the United States stands alone as the only remaining eligible nation failing to ratify this Convention.

The CRC has not been forwarded to the Senate Foreign Relations Committee because Chairman Jesse Helms has let it be known that he is against it. Further, the United States will consider only one human rights treaty at a time. Currently, the Convention on the Elimination of All Forms of Discrimination Against Women is the top priority of the Administration among human rights treaties.

In addition, and most important, there are widespread misconceptions about the Convention's intent and provisions, and a lack of public understanding on how it would be implemented. The opponents, both within the Senate and in the public, portray the Convention as a threat to the American family and national sovereignty. More specifically, they claim that the Convention usurps national and state sovereignty, undermines parental authority and would allow or encourage children to sue parents and have abortions. All this, they fear, adds up to the UN dictating how we rear and teach our children.

The opposition movement within the Senate is led by Senator Jesse Helms who believes that "the United Nations Convention on the Rights of the Child is incompatible with the God-given right of parents to raise their children" and that "the Convention has the potential to severely restrict State and the Federal Government in their efforts to protect children and to enhance family life." Although Senator Helms, along with 26 cosponsors, introduced a Senate resolution (1995) which urged the President not to transmit the Convention to the Senate Foreign Relations Committee, five resolutions supporting ratification have been introduced in Congress.

Treaty supporters offer the following rebuttals:

  • The Convention does not threaten a parent's authority or rights; neither does it threaten the parent-child relationship. The Convention preamble, inter alia, affirms that "the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibility within the community; the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding." The Convention also states that "States parties shall respect the responsibilities, rights and duties of parents — to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of rights recognized in the Convention."
  • The Convention does not threaten our national sovereignty, nor will the United Nations control our laws and children. The Convention contains no controlling language or mandates regarding implementation of the treaty. Moreover, the Supreme Court has ruled that, under the Supremacy Clause of our Constitution, no treaty can "override" our Constitution. Furthermore, the U.S. has historically regarded treaties such as this Convention to be non-self-executing, which means that the text of a treaty itself does not directly become part of law, but is only implemented through domestic legislation, regulatory action, and judicial opinion. This can take years.
  • Therefore, neither the UN nor the Committee on the Rights of the Child (the international body established to monitor the Convention) would have dominion, power, or enforcement authority over the U.S. or its citizens. Ultimately, the Convention obligates the federal government to make sure that the provisions of the treaty are fulfilled. There is no international enforcement mechanism.
  • The Convention does not give children the right to sue their parents since it does not address this issue. States parties to the Convention must ensure that their laws are in compliance with the provisions of the Convention; there must be some mechanism for children's grievances to be heard. However, the Convention does not stipulate that the grievances must be brought before the state's judicial system by the child himself or by an adult acting on the child's behalf. These specifics are to be determined by the States parties themselves.
  • The Convention does not address the question of abortion. In recognition of the State's sovereignty and the many cultural and legal systems of the world, the Convention remains "abortion neutral". For the purposes of this treaty, the standard of when a child's life begins is determined by each nation that ratifies the Convention. The Holy See was one of the first states to ratify; many countries such as Ireland and the Philippines, which have strict abortion laws, have also ratified the Convention. Conversely, countries such as Sweden and France, which recognize their citizens' right to abortion, have also ratified.

The United States currently has some of the best programs and laws in the world to protect children, but U.S. children are not immune to conditions that adversely affect them. For example, the U.S. has one of the highest rates of poverty and hunger among children and suffers one of the highest infant mortality rates among industrialized countries. It experiences approximately three child deaths a day due to abuse and neglect; nearly three-quarters of all the murders of children in the industrialized world occur in the U.S. To resolve these problems, the U.S. needs a comprehensive set of goals, a framework for developing policy and the affirmation of children as a national priority.

The Convention would establish useful guidelines by which all levels of government, private organizations and individuals can form policies and programs to improve our children's condition. It would compel us to reevaluate their situation and to pursue the Convention's goals. In addition, US ratification would improve the plight of children overseas through our participation in the international body set up to monitor the Convention, thereby enabling our voice to be heard on this important issue. It would also help maintain and enhance the US role as a human rights leader.

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The Convention on the Elimination of All Forms of Discrimination Against Women
by Sue Whitman in cooperation with Ruth Nadel

The Convention: The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted by the United Nations General Assembly in 1979. For the first time, this international bill of rights for women proclaimed women's civil, political, economic and cultural rights and their legal equality. It also addressed their reproductive rights, allowing them to choose freely the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.

Discrimination Defined: The Convention provides for the first time a clear definition of discrimination against women, namely "distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality between men and women, of human rights and fundamental freedoms in the political, social, cultural or any other field."

Ratification: The Convention was adopted by the UN General Assembly in 1979, and signed on behalf of the U.S. in 1980, the culmination of more than 16 years of effort in which the U.S. was an active participant. It came into force in 1981 with ratification by 20 of the 77 signatories. It has now been ratified by 162 governments and has also been accepted by a broad range of social and non-governmental organizations. To date, seven US states, seven counties, and nine cities have endorsed ratification, with thirteen states and city resolutions in progress. In 1994, the Senate Foreign Relations Committee reported the Convention out favorably, but it was blocked from a full Senate vote. It still awaits action by the Senate Foreign Relations Committee prior to submission to the full Senate for its advice and consent, where a two-thirds vote is required. The Clinton Administration has strongly recommended approval, declaring it "a treaty for which there is an urgent need for Senate approval."

Implementation: Since it has not signed the document, the U.S. cannot join the UN Committee on the Elimination of Discrimination against Women, established in 1982, which monitors progress in the treatment of women in the countries that have ratified the Convention. The committee is composed of 23 members who are elected by the States parties for four year terms. Although nominated by their governments, they serve as individuals; they meet twice a year for three week sessions to review the progress made in countries that have ratified or acceded to the Convention. The governments present national reports on measures taken to comply with the treaty's obligations. Non-governmental organizations also report. On the basis of the review, the committee recommends ways to eliminate discrimination against women. It has also used this power to address areas of discrimination not specifically covered in the Convention, such as HIV/AIDS and violence against women. While the U.S., as a non- member of the committee, cannot advise other countries, neither can other countries advise the U.S. on its discriminatory practices against women.

Optional Protocol: A working group of the United Nations Commission on the Status of Women is drafting an optional protocol to allow individual women or groups of women to petition the committee directly about violations by their governments. The protocol may also allow the committee to conduct inquiries into abuses of women's rights in countries that are parties to the Convention and the Protocol. This protocol would need to be approved and ratified by the States parties to come into effect for the states ratifying.

Women's Issues at the UN: Today there are five bodies in the UN system devoted to women's issues: the Commission on the Status of Women, the Committee on the Elimination of Discrimination against Women, the Division for the Advancement of Women, the UN Development Fund for Women (UNIFEM), and the International Research and Training Institute for the Advancement of Women (INSTRAW). There is also an Interagency Committee that is working to ensure coordination and integration of a gender perspective into all UN programs and policies.

Our Obligation To Ratify: The Convention recognizes women's rights as human rights. As a leading advocate for human rights, the United States was heavily involved in the drafting of the Convention. It is also signatory to a series of other documents on women and human rights which call for ratification of the Convention. The U.S. obligation to ratify the Convention, therefore, seems clear.

Looking Ahead: In August 1998, a group of American women met through Global Action on Aging and drafted a declaration calling for the special needs of older women to be recognized in connection with the 1999 UN Year of the Older Person. The Nashville Declaration on Older Women's Rights is specific in the areas of education, health and caring, income security, environment, and political participation and representation. It is expected to be introduced at the UN by the Dominican Republic, hopefully cosponsored by the UN Commission on the Status of Women, of which US Ambassador Linda Tarr-Whelan is Chair.

Committee member Sue Whitman is Chair of the Long Term Care Committee of the Mayor's Health Policy Council.

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Single copies are available without charge upon request. To order by mail, please send self-addressed envelope to LWVDC, 1234 Massachusetts Avenue, NW, Suite 208, Washington, DC 20005.

Edited by Sheila Keeny, LWVDC, International Relations Chair, October 1998.

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