How polarization affects human rights treaty ratification by the US Senate

Term Paper, 2014
27 Pages, Grade: 2,0


1. Introduction ... 2
1.1 State of the Art and Hypothesis Generation ... 3
2. Methodical Approach ... 6
2.1 Case Selection ... 8
3. Case Study Analysis ... 10
3.1 The Convention against Torture ... 10
3.2 The Convention on the Rights of Persons with Disabilities ... 13
4. Conclusion ... 17
5. Literature ... 18
6. Appendix ... 20

The present essay investigates the role of the US Senate in international human rights
policy. The USA is accused by the civil society as well as from social scientists to
follow a hypocritical approach of human rights policy. While claiming universal human
rights as driving force behind foreign policy, the US did not succeed in ratifying some
of the landmark human rights conventions, such as the Convention on the Rights of the
Child, the Convention to Eliminate Discrimination against Women and nowadays the
Convention on the Rights of Persons with Disabilities to name a few.
The reasons
might be related with the general reluctance of international norms undermining the US
constitutions superior civil and political rights. However, this explanation is not
satisfactory as alleged hypocrisy does not provide a sufficient analysis of the specific
reasons for ratification behavior. Accordingly, the author of this paper suggests to
consider institutional hurdles of the decentralized system of the USA and the steady rise
of partisan polarization.
Polarization is defined as the ideological divide between the parties. Thus, the greater
the sum of ideological differences between individual members of the parties in
congress, the greater is the partisan polarization. It follows that consensus in congress is
more difficult to achieve under greater polarization due to bicameralism and the
prevailing status of divided government leading to less public policy production.
Thus, the following research question will be examined: How does polarization matter
in human rights treaty ratification by the US Senate?
It is assumed that the procedural complexity of the American political system and
conservative reservations against human rights treaties produce an unfavourable
environment for ratification.
It is further assumed that under these circumstances the
The Statute of Rome establishing the International Criminal Court which the US refuses to sign and
ratify is also one of the prominent examples of American reluctance to adhere to international norms. See
appendix for a detailed overview of US-ratification results, S. 21.
See for research on polarization the classic works of Keith, Poole/ Rosenthal, Howard 1984: The
Polarization of American Politics, Journal of Politics 46 (4), S. 1061-1076; Nolan, McCarty/ Poole,
Keith/ Rosenthal, Howard 2003: Political Polarization and Income Inequality. The Dance of Ideology and
the Unequal Riches, Princeton: Princeton University Press.
While great polarization should lead to very different policies after another party attains power, the
American system constrains coalition building by requiring super-majorities and the consent of the
president. The production of new policies thus is dependent of bipartisan consensus, rarely existent in
recent times.
Moravcsik, Andrew 2005: The Paradox of US Human Rights Policy, in Ignatieff, Michael (Hrsg.):
American Exceptionalism and Human Rights, Princeton: Princeton University Press, S. 193-196.

reservations which the US constantly attaches serve as instrument to limit the impact of
treaty obligations on domestic regulation.
The term "reservation" refers to the legal possibility of states in international affairs "to
exclude or to modify the legal effect of certain provisions"
when they decide upon
application to international treaties. As a result, state parties can select obligations that
fit into their policy preferences and do not change the legal domestic status quo.
The preset paper is structured as follows. The first chapter will summarize the main
insights of previous researches on treaty ratification and combines these with results
from the polarization literature in order to generate the hypothesis. The second chapter
presents the case selection and will outline the methodical approach. In the following
chapter two case studies will be conducted. The conclusion will indicate the analyzed
results of these two case studies in comparison.
The arguments put forward by opponents of human rights treaties point to the self-
executing nature of its obligations and the undermining of democratic decision-making
of the states which cannot implement own policies.
In scientific as well as in popular
researches this view is described as "superior understanding of the US constitution"
Opinions of political elites on foreign policy issues reject the idea of international
jurisdiction in fear of a world government superior of the US constitution. Following
this logic there should be no reason to adopt international human rights standards when
the domestic institutions guarantee human rights for American citizens at best.
Observations derived from failed ratifications analysis of the 1980s and 1990s list
several principles that guide the rejection of human rights treaties by US senators. The
see United Nations 2011: Guide to Practice on Reservations to Treaties, Yearbook of International Law
Commission 2 (2), S.2.The attachment of reservations is only possible if the treaty in question notifies the
Vienna Convention (1993).
Following the failed Bricker Amendment of the 1950s that sought to restrain the senate's legal
possibility to vote for self-executing treaties the arguments are still alive today and used by the senate,
see Henkin, Louis 1995: U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker,
The American Journal of International Law 89 (2), S. 341­350.
Moravcsik, Andrew 2001: Why Is U.S. Human Rights Policy So Unilateralist?, in Forman, Shepard /
Stewart, Patrick (Hgg.): The Costs of Acting Alone: Multilateralism and US Foreign Policy, Boulder:
Lynne Riener Publishers, S..
Katz, Stanley N. 2003: A New American Dilemma? U.S. Constitutionalism vs. International Human
Rights, University of Miami Law Review 58, S. 323-345.

international human rights scientist Louis Hefner summarizes the crucial reservations as
- Treaty obligations not consistent with the US constitution will be rejected
- Treaty obligations shall not change existing policy practices
- Disputes shall not be submitted to the International Court of Justice on how to
interpret the application of treaty obligations domestically
- Large parts of a treaty shall be implemented by the states, guaranteed by a
"federalism clause" attached to the treaty
- Treaties shall not be self-executing
The arguments announced in committee hearings and senate deliberations evoked the
following crucial question, if human rights treaty obligations would replace the better
standards set by the US constitution.
While aforementioned factors can be valued as "cultural explanation" for human rights
treaty rejection, the institutional dynamics has been neglected. Andrew Moravscik
argues that normative reasons cannot explain the senate's reluctance to ratify human
rights treaties sufficiently. According to Moravscik, status quo preserving policy
preferences are the result of the US status of a superpower. As an established liberal
democracy associated with stable institutions and domestic security the USA gains little
from an international human rights regime.
Moravcsik extends this rationalist
perspective by reasoning that sovereignty costs are strongly rejected by conservative
senators. Domestic enforcement of human rights and judicial review mark the crucial
preferences of republican senators opposing Democrat senators which seek to enhance
the leading role of the USA in human rights issues in the world.
Thus, partisan
cleavages over human rights issues are highly polarized. The required 2/3-majority in
the senate for ratification secures the interests of a conservative minority leading to non-
submission of a treaty by the president or to its rejection during the ratification
procedure. Furthermore, the likelihood of agenda setting depends of the partisan control
of the Foreign Relations Committee determining the content of the proposed
Henkin 1995: 334.
Kaufman, Natalie H. 1988: Opposition to Human Rights Treaties in the United States Senate: The
Legacy of the Bricker Amendment, Human Rights Quarterly 10 (3), S. 330-334.
Moravcsik 2005: 167-169.
Forsythe, David P. 1989: Human Rights and US Foreign Policy: Congress Reconsidered, University of
Florida: Florida University Press, S. 32-37.

Due to its complexity, it may be appropriate to demonstrate the assumed
mechanism at this point.
As Moravscik assumes, ratification is more likely if Democrats control the senate and
the presidency. If one takes a look at the ratification results it is remarkable that only
Democrat controlled senates could achieve international human rights legislation.
However, causal mechanisms of polarization and unified or divided government remain
unexplored. Polarization on human rights empowers the conservative minority in the
senate and under republican control of the senate ratification fails. Therefore, Veto-
group politics structures the battle over ratification between the senate and the
presidency as well as between republican and democrat senators in theory. Furthermore,
there seems to be strong support for the assumption that democratic control of the
senate and the presidency is sufficient for ratification. Ratification successes have been
achieved by a minimal democrat majority in the senate followed by the approval of a
Democrat president. Due to the partisan nature of human rights conflict the republican
minority is able to enforce compromises limiting sovereignty costs.
Recent researches have demonstrated that under divided government presidents should
moderate their policy positions allowing for consensus with the opposite party in
congress. Under an unified government, presidents should tend more to policy
extremism relying on a majority of their own party in congress.
In contrast, great party
polarization and the 2/3-majority for ratification complicate coalition building. First,
the president requires the support of liberal leaning Republicans to ensure a majority.
Second, under great polarization a consensus between the parties are difficult to achieve
as strong concessions could alienate strong liberals of the own party. Thus, gridlock is
likely under these circumstances.
It follows that increasing polarization shrinks the
achievable sum of compromises (winset). As a consequence, unified government does
not guarantee ratification..
Moravcsik 2005: 178.
Cohen, Jeffrey E. 2011: Presidents, Polarization and Divided Government, Presidential Studies
Quarterly 41 (3), S. 517 f.
Beckmann, Matthew M. / Kumar, Vimal 2011: Opportunisms in Polarization: Presidential Success in
Senate Key Votes, 1953-2008, Presidential Studies Quarterly 41 (3), S. 499 f. Results on senate votes
even suggest that economic growth and high presidential approval rates make coalition building easier
under great polarization and divided government. However, on foreign policy issues this effect could not
be observed.

In order to examine the effect of polarization and the mode of government the
procedural hurdles of the ratification process need to be considered.
First, the agenda setting power of the Foreign Relations Committee (FRC) is crucial. A
conservative leaning chairman will push it off the agenda or introduce a draft bill
limiting the scope of the proposed legislation.
However, the proposal of the
presidenttowards the FRC should consider the power balances. Subsequently, successful
ratification is achieved by the observed use of substantial reservations attached to the
Nevertheless, a liberal leaning chairman should push the treaty proposal on the
floor and support its legislative intention.
Second, partisan polarization in the senate
needs to be examined in the specific time period. Based on assumptions of human rights
treaty criticism by the US Senate and foremost republican senators it is expected that
consent on a treaty is combined with large implementation power for the states.
Furthermore, a democratic majority and control of the FRC should lead to a consensus
by changing the existing policy practices only marginal.
In sum, considering last findings of research regarding policy making, the following
hypothesis will be examined: Lower polarization serves as necessary condition to ratify
international human rights treaties.
The following analysis will be conducted by a comparative case study measuring the
effect of polarization on the ratification result. Therefore, the Comparative Manifesto
Project (CMP) will be consulted in order to demonstrate the overall polarization on
foreign policy issues. The positive value of "Internationalism" measures the party's
Republican chairman Helms of the Foreign Relations Committee successfully prevented a vote on the
floor of the Convention on Eliminate Discrimination against Women in 1995 lacking a 2/3 majority to
override the decision of the chairman, vgl. Moravcsik 2005: 188.
Goodman, Ryan 2002: Human Rights Treaties, Invalid Reservations, and State Consent, The American
Journal of International Law 96, p. 559 f. According to Goodman reservations seem to be used by liberal
democracies consistently but their content in relation to domestic structures remains unexplored.
Madonna, Anthony J. 2011: Winning Coalition Formation in the U.S. Senate: The Effects of
Legislative Decision Rules and Agenda Change, American Journal of Political Science 55 (2), p. 276-
288. See for power of the committee chairmen Walker, Jack L. 1977: Setting the Agenda in the U.S.
Senate: A Theory of Problem Selection, British Journal of Political Science 7, p. 423-445.
Henkin 1995: 350.
Kearney, Patrick / Powers Ryan M. 2011: Veto Players and Conditional Commitment to U.N. Human
Rights Treaties, Draft, University of Wisconsin, p. 24 f.
DiSalvo, Daniel 2011: Legislative Coalitions, Polarization, and the U.S. Senate, The Forum 9 (4)
p. 1-

commitment to global governance, support of UN organizations and international
Contrastingly, the negative value of "Internationalism" measures the
commitment in terms of unilateralism, endorsement of national sovereignty and
negative references to international cooperation.
The previously mentioned
measurement values s provide an appropriate indicator for estimating the partisan
polarization in a given time period.
The content analysis of majority building will focus on debates in the Foreign Relations
Committee of the Senate and the floor debates to identify the main preferences and
interests. Accordingly, the THOMAS-Database provides the accessibility to the
required documents.
In the first step the preferences of the president will be considered and which impact
concessions to the right wing of the senate have on majority building. It should be
examined, if the parties' preferences diverge with regard to the implementation of the
treaty and change of existing policy practices on the federal and state level.
If the hypotheses are confirmed as correct, lower polarization will lead to compromises
under republican approval while greater polarization lead to the empowerment of the
conservative minority and makes it impossible for the majority to impede a gridlock.
Volkens, Andrea et al 2013: The Manifesto Data Collection. Manifesto Project
(MRG/CMP/MARPOR) Berlin: Wissenschaftszentrum Berlin für Sozialforschung (WZB).
The value ,,Freedom and Human Rights" does not provide a good indicator for this study because it
measures general commitment to civil and political rights, which both main parties in the US highlight in
their manifestos.
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Julian Ostendorf (Author), 2014, How polarization affects human rights treaty ratification by the US Senate, Munich, GRIN Verlag,


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