As of this day, the United States has ratified three of the major seven global human rights treaties (HRTs). (1) The three it has ratified have been assented to only conditionally. They have been qualified by reservations, understandings, and declarations (RUDs) to prevent their direct enforcement in U.S. courts, and bring their provisions into sync with U.S. domestic law. This being said, the greater issues remain far from settled.
Limited and conditional consent to HRTs provokes controversy in the form of two interrelated questions: first, whether U.S. RUDs are legal under international law (the "legality question"), and, second, why the United States has chosen not to increase domestic human rights protection through fuller adherence to HRTs (the "human rights question"). Conditional consent to HRTs--i.e., the policy that raises the legality question--can only be explained by answering the human rights question. Further, unlike the answer to the legality question, the answer to the human rights question responds to the assumedly desirable goal of guaranteeing the protection of human rights.
Accordingly, this article examines various theories asserting claims to truth as to why the United States has tendered only conditional and limited consent to HRTs. This examination of theories and the diverse hypotheses they produce yields a socio-structural theory of human rights. From this theory, a policy suggestion emerges: to construct social arrangements for a minimum substantive floor of human rights protection. This policy suggestion disposes of the legality question, because it effectively reinterprets U.S. RUDs in a manner that satisfies applicable international rules. Most significantly, it directly addresses the concerns underlying the human rights question.
In times of war and external threat, domestic human rights guarantees have been repealed within the United States--consider, for example, McCarthyism and Japanese internment. Parting from the premise that such practices are undesirable, this article assumes first that such practices may recur during present and future threats, and, second, that it is possible that future instances of such human rights infringement will not be as brief. Both assumptions are worth entertaining, given the ongoing and potentially protracted struggle against terrorism in the post-September 11th era.
At its close, the article suggests that although the United States has severely curtailed the effect of human rights treaties within its territory, the HRTs--even in their diminished state--can serve to establish a substantive standard of human rights protection. That standard would be a mast to which the United States could bind itself to ensure that a meaningful level of freedom be maintained and preserved within its territory, come what may.
Part I contains a summary of relevant U.S. law and practice as regards HRTs. Part II analyzes existing explanations for this law and practice and presents a socio-structural theory for human rights protection. Finally, in Part III, the article surveys two existing proposals for change and suggests a minimum floor approach for U.S. human rights law and policy that builds off the socio-structural theory. Given the breadth and quantity of the issues germane to this matter, this article does not seek to arrive at definitive or exhaustive answers. Rather, it seeks to re-conceptualize a complex problem and facilitate a resolution responsive to the multiple underpinnings of limited and conditional consent, on the one hand, and the necessity for certain inalienable and permanent rights within the United States on the other.
I. HRTs IN DOMESTIC LAW
Traditional U.S. judicial conceptions of international law are both antithetical to and insistent upon the enforcement of international human rights. In respect to the former, the U.S. Supreme Court has depicted international law as concerned not with domestic rights and duties, but instead with international rights and duties. …