Shame in Our Own House

In its relations with the rest of the world, America struggles with a profound contradiction. On the one hand, our country has been a pioneer in the human-rights movement, providing much of the language and inspiration for international efforts to win equality for all. On the other hand, our government has repeatedly blocked attempts to bring these rights home to America's own racial minorities, and that hypocrisy lurks at the core of our moral identity as a nation, undermining our claims to global leadership.

The roots of the problem run deep. Since the country's inception, when the Founding Fathers decided to build a rights-based government on the foundation of slavery, the commitment to grant basic human rights to some, but not all, citizens has bedeviled our nation. Along with the legacy of racism itself, we are still contending with institutions originally established to preserve slavery. It was a compromise reached at the Constitutional Convention in 1787, which gave southern slave states disproportionate power in the U.S. Senate; in the years following, influential southern senators were able to block every anti-slavery measure passed by the House of Representatives, terminate Reconstruction, and, until 1957, obstruct all civil-rights legislation. The power of southern senators has also been used to ensure that America's engagement in the world posed no threat to its discriminatory practices at home. That purpose, like the compromise in 1787, met the interests of a broader constituency than just the South.

No historical period demonstrates the resulting clash of policy -- the simultaneous promotion of human rights and rejection of racial equality -- better than the era of the United Nations' founding. The end of World War II created an opportunity for the United States to position itself as not only the military leader but also the moral leader of the world. Eleanor Roosevelt became one of the principal drafters of the Universal Declaration of Human Rights, the document that first created the legal framework for the international human-rights movement. Americans promoted the creed of democracy, freedom, and human dignity around the world.

At the same time, African American leaders were intensifying their appeals to the international community to redress the damage done by more than three centuries of slavery, Jim Crow, and racism. Americans such as Walter White and W.E.B. DuBois of the NAACP, Mordecai Johnson of Howard University, and Mary McLeod Bethune, founder of the National Council of Negro Women, participated as activist-observers at the Dumbarton Oaks and San Francisco conferences that gave birth to the United Nations. There they joined oppressed and colonial peoples from around the world in lobbying the “great powers” to include guarantees of fundamental human rights in the UN Charter.

But the U.S. government balked at that. The American delegation was wary of the implications such standards would have for racial equality at home. U.S. Delegate Tom Connally, a senator from Texas, opposed even language about UN support for education, because, he said, it might be read as endorsing “educa[tion] irrespective of race.”

In the end, the U.S. delegation agreed to a UN Charter that called for “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” But the Americans also guaranteed that the United Nations had no authority to intervene in human-rights matters, which were “presumed,” in the words the United States insisted be written into the charter, “to be solely within the domestic jurisdiction of each country.” The U.S. delegation also successfully lobbied against establishing a powerful commission to consider these issues. The UN Commission on Human Rights, as ultimately created, was essentially toothless.

Back in Washington, southern Democrats, with their iron grip on the U.S. Senate, remained alarmed. President Harry Truman, abandoning his own progressive record on race relations, had assured the Senate that the UN Charter imposed no legal obligations on U.S. courts; it merely enumerated “moral principles.” Yet as they watched the domestic civil-rights movement pick up steam, the southern senators became increasingly fearful that American litigants would someday be able to use the UN Charter to get segregation laws overturned at home. And those fears were only strengthened when the question of racism was among the first placed on the agenda of the new world organization.

In the autumn of 1946, India requested that the United Nations investigate the treatment of Indian nationals and their descendants in South Africa. Later that same year, the National Negro Congress of the United States filed a petition to the UN Economic and Social Council, calling on the United Nations to study the patterns of racial discrimination in America and to take appropriate actions to ensure U.S. compliance with international human-rights standards. In 1947, a similar submission was drafted by DuBois for the NAACP and was reviewed by Thurgood Marshall and Robert Carter, who were at that time part of the NAACP's legal team and who later argued Brown v. Board of Education before the U.S. Supreme Court.

South Africa and the United States both tried to fend off international scrutiny by joining forces and citing the “domestic jurisdiction” language in the UN Charter. Even human-rights advocate Eleanor Roosevelt wanted to prevent any UN actions against apartheid in South Africa that could later become a precedent for international scrutiny of American race relations.

It was left to African American leaders to argue that the issue of racial discrimination in the United States was not a purely domestic matter. Their petitions were being filed at a time when parts of the United States actively required segregation by law in educational systems, employment, and housing. Other areas of the country practiced de facto segregation. The federal government and judicial system were turning a blind eye to what was called “southern justice,” while countless African Americans were denied voting rights and, instead of fair trials, faced beatings, torture, and lynchings. Particularly in the South, white resistance to even minor advances in the rights of African Americans often culminated in hostility and violence. Charles Houston, counsel for the NAACP, presented this evidence and made a straightforward case. “Where the national government either cannot or will not afford protection and redress for local aggression against colored peoples,” he argued, the matter falls within the competence of the United Nations. “A national policy of the United States which permits disfranchisement in the South is just as much an international issue as elections in Poland or the denial of democratic rights in Franco Spain.”

While the matter of South African apartheid remained on the United Nations' agenda for decades, the NAACP petition was soon buried. Still, it served the very important function of attracting highly visible, albeit informal, support from a significant number of Third World governments and future leaders in postcolonial countries.

It also received widespread U.S. and international press coverage and deeply embarrassed the Truman administration. Moreover, as Cold War hostilities flared -- and the Soviet Union and the United States vied for the hearts and minds of emerging Third World states, including various postcolonial African ones -- the Soviets made the most of these revelations of the ugliness of Jim Crow and the persistence of de facto racial discrimination throughout the United States.

Under the circumstances, the United States had only two choices: It could declare that the UN Charter prohibited racial discrimination and bring an end to segregation in America, or it could pull down the curtain on further international scrutiny of American practices. The Truman administration took the latter path. The cause of racial justice was sacrificed.

The U.S. strategy was one of half-truths and evasions. For instance, while admitting that certain problems existed, American officials maintained that discrimination was already outlawed under the U.S. Constitution. But in 1947, this assertion was at odds with Supreme Court rulings, which upheld segregation laws until the Brown decision finally found them unconstitutional seven years later. Similarly, the U.S. government gave in to pressures to establish a subcommission on minorities within the UN Commission on Human Rights, but maneuvered to ensure that its primary focus would be on national minority populations, mostly in Europe, that were trying to preserve their languages and cultures. The definition of “minority” was so narrowly crafted that it was understood for the next several decades to exclude African Americans from the new subcommission's consideration.

* * *

As time went on, a series of international treaties were negotiated to protect human rights, and leading southern senators saw those, too, as threats to the U.S. racial system. They maintained that ratifying the international Convention for the Prevention and Punishment of the Crime of Genocide, for instance, would be a back-door route to enacting federal anti-lynching legislation, something they had continuously opposed. And when the Civil Rights Congress, an American anti-racism organization, decided in 1951 to document the violence perpetrated against blacks and present it to the United Nations, charging the United States with genocide, the southern senators proclaimed their fears vindicated.

They were not alone. Senator John Bricker of Ohio went so far as to launch an all-out national campaign to convince Congress and the American people that human-rights treaties were designed to erode American liberties. He introduced a constitutional amendment to restrict the president's treaty-making powers.

President Dwight Eisenhower, who had come to the Oval Office in 1953, decided to sacrifice American leadership on human rights rather than risk defeat on the Bricker amendment in Congress. He completely abandoned the UN human-rights treaty system, pledging that his administration would not seek future ratifications of international human-rights treaties. And that policy was maintained for more than 25 years.

As a result, the United States failed to ratify the genocide convention until 1988. It was not able to participate fully in the early development of three of the most important UN human-rights treaties containing significant nondiscrimination clauses: the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR and the ICERD were not ratified until 1992 and 1994, respectively, and even then, the Senate attached a package of reservations to make sure that the treaties would have no significant impact on civil-rights litigation in U.S. courts. The ICESCR, meanwhile, has yet to be ratified by the United States.

It is not only America's role in the international movement for human rights that has suffered as a result. According to Carol Anderson, whose book, Eyes Off the Prize, documents these events, the loss of American involvement in the development of human-rights treaties and “the pervasive notion that there was something un-American and communistic about human rights converged to severely constrict the agenda for real black equality.”

Until very recently, American judges resisted even references to international or foreign law in making their decisions. Meanwhile, civil-rights attorneys, finding human-rights treaties unhelpful in gaining specific remedies for their clients, came to be generally disinterested in the global rights movement.

The United States has been particularly hostile to the notion of economic, social, and cultural rights, which for a long time were viewed here as mere Soviet-inspired rhetoric. In the days when any leader who broached such matters was likely to be attacked as a communist, the American movement for racial equality chose to focus largely on the denial of civil and political rights, pursuing mainly voting-rights and nondiscrimination cases. We can now see the limitations of this strategy for lifting our whole community from historical disadvantage. The still-unmet goals of the civil-rights struggle today are primarily about economic and social needs -- a living wage, decent shelter, adequate food, life-sustaining health care. Placing these issues within an international human-rights framework would allow them to be seen, as they are in most of the rest of the world, as falling squarely within the category of rights -- a profound difference from the way they are widely perceived in America today.

The lack of connection between the civil-rights movement in America and the global human-rights movement is a tremendous loss. Even our understanding of what justice is about has been narrowed and clouded by it. It is thus good news that American civil-rights organizations have recently begun to examine the relevance and meaning of international human-rights norms to our struggle here at home. The large participation of American groups at the UN World Conference Against Racism in Durban, South Africa, in 2001 was encouraging, as it set the stage for new alliances and perspectives. However, the U.S. government boycotted this conference, rekindling old feelings of betrayal among civil-rights groups. Once again the White House chose to relinquish its leadership rather than fight what were admittedly difficult battles on race issues.

Others, though, are awakening to the realization that there are important lessons to be learned from how other countries approach human rights. Even Supreme Court justices are acknowledging international and foreign court decisions and the jurisprudence of treaty-oversight bodies. An important ray of hope came with Supreme Court Justice Ruth Bader Ginsberg's reference to ICERD in her opinion concurring with the Court's 2003 decision upholding affirmative action in admissions at the University of Michigan. It would have been better if civil-rights litigators had been able to use ICERD directly in seeking that outcome, accepting the international treaty as binding U.S. law, but that is something for the future.

America helped create international procedures to protect and promote human rights, but American resistance to fully participating in them is only just beginning to subside.

Gay McDougall is the executive director of Global Rights, an international human-rights advocacy group. She was a member of the UN Committee on Racial Discrimination from 1997 to 2001.