Human Rights Treaties in and beyond the Senate: The Spirit of Senator Proxmire

Abstract

In 1995, Louis Henkin wrote a famous piece in which he suggested that the process of human rights treaty ratification was haunted by “the ghost of Senator Bricker” – the isolationist Senator who in the 1950s had waged a fierce assault on the treaty power, especially with regard to human rights treaties. Since that time, Senator Bricker’s ghost has proved even more real. Professor Henkin’s concern was with how the United States ratified human rights treaties, and specifically with the packet of reservations, declarations, and understandings (RUDs) attached by the Senate in giving its advice and consent. Today, the question is not how but whether. It is now twenty years since the United States ratified a major human rights treaty.

Yet one common theme that arches across U.S. foreign relations law is the power of the dialectic. Written in honor of Roger Clark, this essay suggests that as a counterweight we should consider the spirit of Senator Proxmire – the late internationalist who for many years led a lonely campaign to keep the Genocide Convention on the Senate’s agenda. The spirit of Senator Proxmire embodies two trends in relation to unratified human rights treaties. The first is simply that efforts towards Senate advice and consent for at least some of these treaties persist and persist. The second trend – less direct, but even more interesting – is that unratified human rights treaties are nonetheless influencing the shape of law in the United States. In essence, these uses of unratified human rights treaties are advancing Senator Proxmire’s goal of having the United States be responsive to human rights norms, although not doing so through his preferred means of treaty ratification. This essay describes these trends and closes by observing that isolationists and internationalists have both used half-measures in order to pursue their goals.

Keywords: Domestic incorporation of international law, constitutional and foreign relations law, human rights, treaty ratification, United States Senate, William Proxmire, John W. Bricker, reservations, understandings and declarations (RUDs), Roper v. Simmons