L/UNA files, “Human Rights—Conventions and Treaties—1949–1965”

Memorandum by the Legal Adviser (Phleger) and the Assistant Secretary of State for United Nations Affairs (Hickerson) to the Secretary of State1

confidential
  • Subject:
  • United States Policy Regarding Draft International Covenants on Human Rights

Since the meeting in your office last week,2 we have discussed further with Mrs. Lord3 the problem of a change in United States policy toward the Human Rights Covenants. The memorandum which is attached has been prepared in the light of these discussions. It sets forth arguments for and arguments against a change in the policy of support for the Covenants. It then goes on to suggest three possible courses of action which might be followed if a decision is made to change the policy which this Government has pursued up to the present time. These courses are considered in terms of their effectiveness in accomplishing a change in United States policy with the least damage to our public position at home and abroad.

When a decision is reached on the question of basic policy and on the course to be followed if a change in policy is decided upon, we expect to work with Mrs. Lord further on the preparation of a general policy statement for her to make in the Human Rights Commission at its forthcoming session in Geneva.

If a decision is made to change United States policy toward the Covenants, it has occurred to us that it might be useful to include in a letter of instructions to Mrs. Lord prior to her departure for Geneva the following elements: (1) a recital of United States efforts for several years on drafting the Covenants in the Human Rights Commission, which has been proceeding under instructions from the General Assembly; (2) a statement of our view that codification of human rights in the Covenants is not an appropriate and effective way of furthering the observance of human rights throughout the world at the present stage in international relations; (3) an authorization to the United States representative to put forward methods other than the Covenants for appropriate action through the United Nations to further the goals proclaimed in the Declaration of Human Rights; and (4) statements of the importance attached by this Government to the pursuit of human-rights goal through appropriate procedures in the United Nations and of wholehearted support for suitable steps to this end. In the event of a decision to change existing United States [Page 1550] policy toward the Covenants, the change would presumably be foreshadowed if not announced in your testimony before the Senate committee holding hearings on the Bricker amendments to the Constitution. It is, therefore, our thought that you might wish to make a public release of the letter of instructions to Mrs. Lord before her departure. Public indications of a changed policy, in the hearings on the Bricker amendments and in a letter to Mrs. Lord, could be helpful in reassuring large numbers of people in this country about United States participation in the United Nations and could prepare the ground for Mrs. Lord’s work at the session of the Human Rights Commission by making it clear that her actions in Geneva stem from instructions given by the highest authorities in this Government.

[Attachment]

United States Policy Regarding Draft International Covenants on Human Rights4

i. should present united states policy in support of the draft covenants be changed?

A. Arguments For:

1.
It seems unlikely at the present stage in international relations that the observance of human rights throughout the world will be furthered by means of international agreements which lack real enforcement provisions. At the present time progress can best be made, not through the imposition of legal obligations, but through means of public discussion and persuasion.
2.
It is highly problematical that even the Covenant on Civil and Political Eights can gain the consent of the U.S. Senate to ratification.
3.
It is by no means clear that a significant number of countries whose existing standards in the human rights field would be affected by the Covenants, would ratify them and actually give effect to their provisions.
4.
The Covenants, once adopted and in force among some states, could work to the disadvantage of United States interests, whether this country became a party or not. The Covenants would be a source of propaganda attack on positions taken by the United States and on conditions within this country. The Covenants might contain provisions [Page 1551] on economic self-determination and the right of nationalization which would be detrimental to United States interests in certain areas abroad.
5.
Continued United States effort in support of the Human Rights Covenants might appear, at least to some observers and critics in this country, as inconsistent with the Administration’s policy on civil rights in the United States, where the emphasis is now on persuasion as against any new federal civil rights legislation.
6.
The Covenants are under attack by large and important groups in this country such as the American Bar Association and a number of members of the U.S. Senate. For the administration to press ahead with the Covenants would tend to keep alive and strengthen support for the Bricker amendments to the Constitution.

B. Arguments Against:

1.
The United States has believed that continued friendly relations among nations depends in part upon the observance of human rights throughout the world, and that the draft Covenants will be a means by which progress may be made in this field. The United States has therefore for several years supported the idea of incorporating basic civil and political rights in a binding international instrument. A change in position now would be difficult to explain.
2.
Sentiment in other countries, especially those of Latin America and the Middle and Far East, strongly favors the Covenant. United States support for the Covenants has helped in our relations with those countries, which together have a majority in the General Assembly. To withdraw support from the Covenants would have a marked negative effect on these relations.
3.
To withdraw support from the Covenants would be interpreted by at least some other countries as a step backward in the world effort to promote universal observance of human rights. Countries unfriendly to the United States, particularly the Soviet bloc, would be presented with a propaganda weapon for use in the cold war, which we could expect them to exploit particularly in under-developed areas.
4.
Withdrawal of United States support of the Human Rights Covenants will not necessarily prevent their completion. United States interest requires that the final texts of the Covenants, in the event that they are accepted by some countries, be in as satisfactory a form as possible. United States efforts to this end will be less effective if we have withdrawn support from the Covenants.
5.
A considerable body of organized opinion in the United States favors support for the Covenants.
6.
The Covenants would not increase federal power over the states in the human-rights field. The United States has been insisting on the [Page 1552] inclusion of a federal-state clause in the Covenants, by which the existing federal-state relationship would remain the same.

II. in the event of a shift in united states policy away from active support of the covenants, the problem of how best to implement the new policy must be considered. there are a number of possible courses for giving effect to such will suggest three varying and represenative possibilities, giving the arguments for and against each.

A. The United States would invite United Nations Members engaged in drafting the Covenants to take stock of their efforts and consider whether long experience has not shown that it is difficult or impossible to produce mutually satisfactory instruments which will at the same time operate effectively to promote human rights; the United States would express its view that now is not the propitious time for seeking the codification of human-rights standards in such general form as the Covenants, that a greater degree of general acceptance of goals in this field must be achieved before the time will be ripe. The United States would urge that the United Nations give attention and emphasis to means other than the Covenants for making progress toward the goals set forth in the Declaration of Human Rights; the United States would suggest consideration of such means as (i) a human-rights rapporteur designated by the Human Rights Commission to survey and report on the progress being made in the different countries, the results of his study to be discussed by the Commission with appropriate attention to special problems and systematic denial of rights; (ii) periodic reporting by member governments, with the assistance of national advisory groups, on forward steps being taken in their respective countries, such reports to be discussed as appropriate by the Human Rights Commission; (iii) the provision of advisory services, through a panel designated by the Human Rights Commission, to countries desiring what amounts to technical assistance in the human rights field. In view of the instructions given to the Human Rights Commission by the General Assembly, and in view of the likelihood that other members of the Commission would wish nevertheless to proceed with work on the Covenants, the United States would continue to participate in the work of drafting despite its general position on principle expressed above.

1. Arguments For:

(a)
This would be a wholly candid position, making a clean break with the past where experience has led the United States to conclusions different from those held by this Government four or five years ago.
(b)
The position would have maximum influence in drawing support away from the Bricker amendments.
(c)
It comprises elements of positive policy which would minimize the difficulties to be anticipated, in a change of basic position, from other countries and from the United States groups particularly interested in human rights policy.
(d)
By continuing to participate in the drafting process, the United States would retain some measure of influence over the texts of the Covenants, perhaps preventing the inclusion of provisions which would be detrimental to American interests.

2. Arguments Against:

(a)
Work on the Covenants might well continue despite the change in United States position, with resulting instruments less satisfactory than those which might be anticipated if the United States continued its policy of support for the Human Rights Covenants.
(b)
Reporting, either by a rapporteur or by member governments, on human rights developments in the different countries might facilitate propaganda charges against conditions in the United States.
(c)
This position would most clearly express our opposition to the Covenants, and for that reason would, in comparison with alternatives II.B. or II.C. below, accentuate the disadvantages of a change in policy referred to in part I of this memorandum.

B. The United States would state its opposition to the Covenant on Economic and Social Rights, arguing our view that these rights must be furthered in other ways; the United States would reserve its position altogether regarding the Covenant on Civil and Political Rights; and the United States would express willingness to continued to participate in drafting, with the hope that the latter Covenant might eventually emerge in acceptable form.

1. Arguments For:

(a)
In stating frankly this position, the United States still would not be opposing stubbornly the will of the majority and would continue to cooperate in their drafting efforts.
(b)
The United States would be able to exercise influence toward securing relatively satisfactory Covenant texts, particularly in the case of the Covenant on Civil and Political Rights.
(c)
This position would to some extent serve to reassure the groups in the United States most strongly opposed to the Human Rights Covenants.

2. Arguments Against:

(a)
This position might be interpreted by other countries as implying a patronizing attitude on the part of the United States, an attitude especially resented by the less developed countries.
(b)
United States influence in the drafting process would be relatively less than in the past, with the possible result of frequent American defeats in voting.
(c)
This position would lack elements of positive and constructive policy in the human rights field, such as could help the United States Government, which are of importance to other countries and to the groups in the United States particularly interested in the promotion of human rights.
[Page 1554]

C. The United States would continue to participate in the work of drafting the Covenants; the United States would refrain from asserting leadership in the work, and would actually follow a course calculated to delay, if not prevent, the completion of the Covenants. The United States would pursue this course as perhaps the first stage in carrying out a new policy, to be followed later by announcement of a change in position and by pursuit of a course such as that indicated in II.A. or II.B. above.

1. Arguments For:

(a)
The above course of action might soften the propaganda disadvantages to the United States of a change in policy toward the Human Rights Covenants.
(b)
Lack of positive leadership by the United States might make it more difficult to reach agreement on the final texts. Eventually, therefore, other countries might be persuaded that the whole idea of concluding the Covenants is not a practical undertaking at the present time.
(c)
The United States might find it easier, after a period of expressing repeatedly its dissatisfaction with the progress in drafting the Covenants, to announce and follow a basically changed policy

2. Arguments Against:

(a)
The above course of action would readily be sensed by other delegations as indicating a basic change in policy. Charges of duplicity and ad faith might then be added to charges of unfriendliness to the United Nations human rights programs.
(b)
Failure of the United States frankly to state its basic policy change at the outset would make it more difficult for the United States to gain adherence later to positive programs in the human rights field which this country might decide to put forward
(c)
The tactic of veiled and gradual withdrawal of support for the Covenants would have only minimum effectiveness in diminishing the prospects of the Bricker amendments [sic].
  1. Drafted by the Assistant Legal Adviser for UN Affairs (Meeker).
  2. No record of this meeting has been found in Department of State files.
  3. Mrs. Oswald B. Lord was U.S. Representative on the UN Commission on Human Rights.
  4. Drafted by Meeker and an officer of his staff, W. E. Hewitt. The two officers had jointly prepared a draft on Feb. 16 which differed from the instant memorandum in form, substance, and emphasis, although much of the material was the same and simply presented differently (memorandum by Meeker and Hewitt, Feb. 16, 1953, L/UNA files, “Human Rights—Conventions and Treaties—1949–1965”).