An Exceptional Relationship the US and International Human Rights

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					An Exceptional Relationship: the
US and International Human
Rights Law


Barbara A. Frey and James Dorsey
The Advocates for Human Rights
April 17, 2008
Overview of Presentation

   1. International human rights law

   2. The US and international human
    rights law: exceptional leadership

   3. The US and international human
    rights law: exceptionalism
International Human Rights Law

Individual human beings are deemed
  to have internationally guaranteed
  rights.
International Human Rights

   These rights are recognized
    regardless of the nationality of the
    individual
   Human rights are no longer
    considered as within domestic
    jurisdiction of States
International Human Rights Law

States no longer have unlimited
  sovereign authority over persons
  within their territory
International Human Rights Law

These laws are enshrined in several
 core international legal instruments:

  United Nations Charter, Article 1:
  “To achieve international co-operation …
    in promoting and encouraging respect
    for human rights and for fundamental
    freedoms for all…”
International Human Rights Law
International Bill of Human Rights:

Universal Declaration for Human
  Rights (1948)
International Covenant on Economic,
  Social and Cultural Rights (1966)
International Covenant on Civil and
  Political Rights (1966)
(www.umn.edu/humanrts)
International Human Rights Law
Other Major Human Rights Treaties:

Genocide Convention (1948)
Race Convention (1965)
Women’s Convention (1979)
Convention Against Torture (1984)
Children’s Rights Convention (1989)
Convention on Migrants (1990)
US Ratification Record
Genocide Convention (1948), (1988)
Race Convention (1965),(1994)
Civil and Political Rights (1966),(1992)
ESC Rights (1966),(NA)
Women’s Convention (1979),(NA)
Convention Against Torture (1984),(1994)
Children’s Rights Convention (1989),(NA)
Convention on Migrants (1990), (NA)
Helms Proviso




   Nothing in this Covenant requires or
    authorizes legislation, or other action, but
    the United States of America prohibited
    by the Constitution of the United States
    as interpreted by the United States.
The US and International Human
Rights Law: Exceptional Leadership
Rights of Man Campaign
   H.G. Wells, 1939
    “At various crises in the history of our
    communities, beginning with Magna Carta
    and going through various Bills of Rights,
    Declarations of the Rights of Man and so
    forth, it has been our custom to produce
    a specific declaration of the broad
    principles on which our public and social
    life is based…
Rights of Man Campaign

Warsaw, 1939
Rights of Man Campaign
   …The present time seems peculiarly
    suitable for such a restatement of
    the spirit in which we face life in
    general and the present combat in
    particular…’
   “Declaration of Rights”
   Final version: “The Rights of Man,”
    Daily Herald, February 1940
Four Freedoms

   FDR response to H.G. Wells, 9
    November 1939

   January 1940: meeting with church
    leaders – fundamental principles for
    new world order

   July 1940: press meeting
Four Freedoms

   FDR’s Four Freedoms, Jan. 1941:

       Of Speech
       Of Worship
       From Want
       From Fear
Four Freedoms

   From Want:

       active promotion of well-being of
        citizens
       Promoted “Economic Bill of Rights” to
        complement existing Bill of Rights
        (1944 State of Union)
Four Freedoms

   From Fear:
       Worldwide reduction of armaments
       Protection against oppression of own
        state: “Our Government believes that
        freedom from cruelty and inhuman
        treatment is a natural right. It is not a
        grace to be given or withheld at will by
        those temporarily in a position to exert
        force over a defenseless people.”
        (1941)
Human Rights as a Purpose of the UN:
The Context

     56 million military and civilian deaths
     Holocaust: 6 million European Jews,
      Roma, homosexuals, others considered to
      be threats




       Refugees in Europe and survivors of
        atomic bombs in Japan
Human Rights and the UN

   Wartime proposals for giving human
    rights international status:
       Movement for Federal Union
       Catholic Association for International
        Peace
       US State Dept Subcommittee
       Commission to study the organization
        of Peace
       American Law Institute
Human Rights and the UN
   Leaders of Allied
    Powers formed the
    United Nations

   American NGOs
    lobbied for human
    rights to be
    included in the
    purposes of the
    new international
    organization
Human Rights and the UN

   Dumbarton Oaks 1944:
       Did not meet expectations on human
        rights
       Only one mention, in one of last
        chapters
       Change came from Latin American
        States and North American NGOs
Human Rights and the UN

   U.N. Charter adopted in San
    Francisco, June 26, 1945
       Human rights referenced in
          Preamble,
          Article 1 (Purposes and Principles)

          Article 55(c) (UN shall promote)

          Article 56 (Members pledge themselves to
           take joint and separate action)
Human Rights and the UN
“No plea of sovereignty shall ever again be
  allowed to permit any nation to deprive
  those within its borders of fundamental
  rights on the claim that they are matters
  of internal concern. It is now a matter of
  international concern to stamp out
  infractions of basic human rights.”
      --America Jewish Committee, 1945
International Human Rights Law
   Universal Declaration of Human
    Rights
       December 10, 1948
       UN Commission on Human Rights
       Eleanor Roosevelt, head of US
        delegation to UN, first chair
       18 Member States
       Drafting 1946-48
       Saudi Arabia, South Africa and Soviet
        States abstained
Universal Declaration of Human Rights
Eleanor Roosevelt, December 9, 1948
   “We stand today at the threshold of a
    great event both in the life of the United
    Nations and in the life of mankind. This
    declaration may well become the
    international Magna Carta for all men
    everywhere. We hope its proclamation by
    the General Assembly will be an event
    comparable to the proclamation in 1789
    [of the French Declaration of the Rights of
    Man], the adoption of the Bill of Rights by
    the people of the U.S., and the adoption
    of comparable declarations at different
    times in other countries...
Universal Declaration of Human Rights

     Defines “human rights” in UN Charter
     The Declaration consists of 30 Articles:

     Article 1:        Origin of Rights
     Articles 2-21:    Civil and political rights
     Articles 22-27:   Economic, social and cultural rights
     Article 28:       Communitarian/solidarity
     Article 29-30:    Duties to the Community
Universal Declaration of Human Rights

Philosophical underpinnings: Preamble

“Recognition of the inherent dignity and of
  the equal and inalienable rights of all
  members of the human family is the
  foundation of freedom, justice and peace in
  the world…”
The US and International Human
Rights Law : Exceptionalism

Cold War: A shift to civil and political
 rights
The US and International Human
Rights Law : Exceptionalism

   Post-Cold War: the lone
    Superpower
Case One: the Prohibition against
Torture


   Convention against Torture and
    Other Cruel, Inhuman or Degrading
    Treatment or Punishment (1984),
    Article 1:
1. Definition

“any act by which severe pain or
  suffering, whether physical or
  mental,
is intentionally inflicted on a
  person…
for such purposes as
 obtaining from him or a third
  person information or a confession
1. Definition

…when such pain or suffering is
 inflicted by or at the instigation of
 or with the consent or acquiescence
 of a public official or other person
 acting in an official capacity.”
2. No Exceptions
   Article 2(2):
    No exceptional circumstances whatsoever,
    whether a state of war or a threat of war,
    internal political instability or any other
    public emergency, may be invoked as a
    justification of torture.

      Article 2(3):
    An order from a superior officer or a
    public authority may not be invoked as a
    justification of torture.
3. U.S. is a Party to the Convention
against Torture

   1988: President Reagan signed the
    treaty and sent it to the Senate for
    advice and consent
   1989, G.H.W. Bush indicated CAT
    had highest priority for ratification
    among human rights treaties
   1990, Senate gave its advice and
    consent
3. U.S. is a Party to the Convention
against Torture
   Senate included 2 reservations, 5 understandings,
    2 declarations and 1 proviso
   Most significant reservation: That the United
    States considers itself bound by the obligation
    under Article 16 to prevent “cruel, inhuman or
    degrading treatment or punishment,” only insofar
    as the term "cruel, inhuman or degrading
    treatment or punishment” means the cruel,
    unusual and inhumane treatment or punishment
    prohibited by the Fifth, Eighth, and/or Fourteenth
    Amendments to the Constitution of the United
    States
The United States should foreswear
torture because torture:

   endangers our troops;
   prevents the enemy from
    surrendering;
   creates more enemies;
   interferes with coalition building;
   destroys the torturers;
   does not produce good intelligence.
Case Two:
The International Criminal Court

   Rome Statute of the International
    Criminal Court
   Adopted July 17, 1998
   Entered into force July 1, 2002
Jurisdiction

   Can try individuals for some of the
    most serious crimes, including

       Genocide (article 6)
       Crimes against humanity (article 7)
       War crimes (article 8)
       Aggression (undefined)
Assembly of States Parties

   105 States Parties
   Independent institution, not part of
    UN
US Actions re: ICC

   President Clinton signed the ICC on
    December 31, 2000

   President Bush nullified this
    signature on May 6, 2002
US Actions re: ICC

   Bilateral Immunity Agreement (BIA)
    Campaign:
       States agree not to transfer US officials
        to ICC for prosecution, 100 signed
       American Service Members Protection
        Act (ASPA) withdraws military aid to
        states that won’t sign BIA
       Nethercutt Amendment withdraws
        economic aid
US Actions re: ICC

   What is the US so worried about?
       Prosecution of US citizens even when
        US not a party to the court
       Unaccountable ICC prosecutor & court.
       No reservations permitted if join ICC.

       Consider, e.g., Article 8(2)(vi)Wilfully
        depriving a POW of the rights of fair
        and regular trial is a war crime
Shift of US Attitude toward ICC

   Iraq: Iraqi Special Tribunal
Shift in US Attitude toward ICC

   Darfur: referral of investigation, UN
    Security Council Resolution 1593 –
    March 2005
Shift in US Attitude about ICC

   10/1/05, Jendayi Frazer, US Assistant
    Secretary of State for African Affairs: “… if
    we were asked by the ICC for our help,
    we would try to make sure that this
    gets pursued fully, … because we don’t
    want to see impunity for any of these
    actors. So they haven’t asked, but if they
    did, we stand ready to assist."
Shift in US Attitude about ICC
   President Bush directs waiver of military aid cuts to
    21 countries refusing BIAs, 10/2/06

   John Warner National Defense Appropriations Act
    waives military aid cuts to all countries without
    BIAs, 10/17/06

   US military: cuts in US military aid re ICC hurt US
    anti-terrorism efforts, 3/05 to date

   Bush signs law eliminating military cuts under ASPA
    1/28/08
Exceptionalism - lite?

   "Our policy toward the ICC has not
    changed. We are strongly opposed to the
    ICC's covering us. In that regard, our policy
    is crystal clear."

       -- John Bellinger, State Dept legal
        advisor, Dec 2006
Candidates’ positions on ICC


 McCain:
“I want us in the ICC, but I’m not
  satisfied that there are enough
  safeguards.”
Candidates’ positions on ICC

 Clinton:
“Consistent with my overall policy of
  reintroducing the US to the world, I
  will as President evaluate the record
  of the Court, and reassess how we
  can best engage with this institution
  and hold the worst abusers of
  human rights to account.”
Candidates’ Positions on ICC

 Obama:
“I will consult thoroughly with our
  military commanders and also
  examine the track record of the
  Court before reaching a decision on
  whether the US should become a
  State Party to the ICC."
Conclusion
   Despite intent to carve out
    exceptions
   US cannot shield itself from
    obligations
   Factors:
       IHRL consistent with US values
       IHRL arguably supports national
        security interest
       Growing international consensus
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