David Weissbrodt, Joan Fitzpatrick, Frank Newman, INTERNATIONAL

Document Sample
David Weissbrodt, Joan Fitzpatrick, Frank Newman, INTERNATIONAL Powered By Docstoc
					DAVID WEISSBRODT, JOAN FITZPATRICK, AND FRANK NEWMAN, INTERNATIONAL
HUMAN RIGHTS—LAW, POLICY, AND PROCESS (3d ed. 2001).

Supplement to Chapter 10: How Does U.S. Foreign Policy Influence Human Rights in
Other Countries? (November 2003)

Section C.1. International Duties: U.S. duties as a UN member-nation

       For an overview of recent developments in U.S. international human rights policy
and the ―war on terror‖, please see Joan Fitzpatrick, Speaking Law to Power: The War
Against Terrorism and Human Rights, in the Supplement to the Preface on this site,
available at <http://www1.umn.edu/humanrts/intlhr/preface.html>.

Section D.7. Human Rights and Foreign Policy in the George W. Bush
             Administration

The National Security Strategy of the United States

        In September 2002, the Bush administration released The National Security
Strategy of the United States of America,1 outlining the guiding principles of its foreign
policy. Prominent in the text was a re-interpretation of the right of self-defense to include
pre-emptive military action against those states that it views as threats to U.S. national
security. Less attention was paid to what the document had to say about the role of
human rights within this new strategy. Indeed, the document generally preferred to use
―freedom‖ or ―non-negotiable demands of human dignity‖ instead of ―human rights.‖

       Chapter II: Championing aspirations for human dignity
           - ―America must stand firmly for the nonnegotiable demands of human
               dignity: the rule of law; limits on the absolute power of the state; free
               speech; freedom of worship; equal justice; respect for women; religious
               and ethnic tolerance; and respect for private property.‖2
           - In outlining the actions that it will take to defend human rights, the
               administration states that it will:
                     ―speak out honestly about violations of the nonnegotiable demands
                       of human dignity using our voice and vote in international
                       institutions to advance freedom‖;3
                     use our foreign aid to promote freedom and support those who
                       struggle non-violently for it, ensuring that nations moving toward
                       democracy are rewarded for the steps they take‖;4
                     ―make freedom and the development of democratic institutions key
                       themes in our bilateral relations, seeking solidarity and cooperation


1
  Available at <http://www.whitehouse.gov/nsc/nss.html> (last visited September, 16, 2003)
2
  The National Security Strategy of the United States of America, ¶ 2.
3
  Id. at ¶ 8.
4
  Id.


                                                   1
                           from other democracies while we press governments that deny
                           human rights to move toward a better future‖;5
                          ―and take special efforts to promote freedom of religion and
                           conscience and defend it from encroachment by repressive
                           governments.‖6

President George W. Bush’ address to the United Nations, September23, 2003

        President George W. Bush addressed the United Nations on September 23, 2003,
seeking to enlist the aid of the international community in the reconstruction of Iraq.7
The speech reiterated the central tenets of the Bush administration’s policy in Iraq, in
particular, the. The speech also addressed the ―war on terror,‖ and human trafficking. To
summarize, President Bush concluded by saying,

     ―All the challenges I have spoken of this morning require urgent attention and moral clarity. Helping
Afghanistan and Iraq to succeed as free nations in a transformed region, cutting off the avenues of
proliferation, abolishing modern forms of slavery -- these are the kinds of great tasks for which the United
Nations was founded. In each case, careful discussion is needed, and also decisive action. Our good
intentions will be credited only if we achieve good outcomes.‖ 8

The U.S. Mission to the UN Commission on Human Rights in Geneva

    In April 2002, the United States regained its position at the UN Commission on
Human Rights.9 In 2003, the U.S. Permanent Representative to the U.N. in Geneva gave
a statement at the 2003 session outlining U.S. human rights goals.10 The following are
the main points:
     ―We share with [the High Commissioner] a desire to see a world in which every
        government implements those obligations to the governed that it has assumed-in
        short, a world in which every man, woman and child on this planet enjoys the
        inalienable political and civil liberties recognized in the Universal Declaration of
        Human Rights.‖11
     ―Nations whose citizens enjoy political and civil liberties do not threaten the
        peace and security of other countries, near or far.‖12

5
  Id.
6
  Id.
7
  Available at <http://www.whitehouse.gov/news/releases/2003/09/20030923-4.html> (last visited
September 28, 2003)
8
  President Bush Addresses United Nations General Assembly, ¶ 31,
<http://www.whitehouse.gov/news/releases/2003/09/20030923-4.html> (last visited September 28, 2003)
9
  Fact Sheet, 58th United Nations Commission on Human Rights, Bureau of Democracy, Human Rights,
and Labor, Washington, DC, May 16, 2002, available at <http://www.state.gov/g/drl/rls/10171.htm> (last
visited September 28, 2003).
10
   Statement by Ambassador Kevin E. Moley, Permanent Representative to the United Nations in Geneva,
March 21, 2003, available at
<geneva.usmission.gov/humanrights/statements/0321Moley%20Item%204.html> (last visited September,
26, 2003)
11
   Id. at ¶ 1.
12
   Id. at ¶ 4.


                                                     2
        ―[They], instead, contribute to international peace and security. They create the
         conditions for entrepreneurship and long-lasting, broad-based economic growth.
         They generate the means and medical advances necessary to staunch the global
         pandemic of HIV/AIDS.‖13
        ―The Commission on Human Rights can contribute to these goals primarily by
         helping ordinary men and women enjoy the political and civil liberties that their
         governments have undertaken to secure in ratified agreements.‖14
        ―We cannot allow human rights abusers to undermine this organization from
         within. We should […] consider the simple proposition that only real
         democracies, democracies with regularly scheduled multi-party elections,
         independent judiciaries, and constitutional guarantees of human rights, deserve
         membership on the Commission for Human Rights.‖15
        ―Another concern of ours relates to a recent proliferation of special rapporteurs
         who dissipate the Commission's limited resources, and whose mandates stray
         from the Commission's core mission. The future effectiveness of the Commission
         of Human Rights requires prioritization: in other words, a return to the time-
         honored basics such as freedom of speech, thought, assembly, worship, and the
         press; the equal protection of the law; and of governments limited in power,
         subject to the will of the people expressed through competitive, regularly-held
         elections.‖16

The U.S. State Department: Bureau of Democracy, Human Rights, and Labor

        The State Department carries much of the burden for U.S. human rights policy
generation and implementation through the Bureau of Democracy, Human Rights, and
Labor, website available at <http://www.state.gov/g/drl/hr/> (last visited September 23,
2003).
        The State Department’s annual Country Reports on Human Rights are available at
<http://www.state.gov/g/drl/hr/c1470.htm> (last visited September 23, 2003). The State
Department issues a large number of statements and press releases outlining U.S. human
rights policy, available at <http://www.state.gov/g/drl/rls/>. The primary State
Department report explaining U.S. actions in support of human rights is Supporting
Human Rights and Democracy: The U.S. Record 2002-2003.17
        The following sources address the Bush administration’s view of economic, social
and cultural rights, as well as the general role of human rights in U.S. foreign policy.

        Right to Development, Ambassador George Moose, U.S. Delegation and U.S.
         Permanent Representative to the UN Offices in Geneva, Remarks to the 57th
         Session of the UN Commission on Human Rights, Geneva, Switzerland, March
         27, 2001.18

13
   Id. at ¶ 5.
14
   Id. at ¶ 6.
15
   Id. at ¶ 10.
16
   Id. at ¶ 12-13.
17
   Available at <http://www.state.gov/g/drl/rls/shrd/2002/> (last visited September 28, 2003).
18
   Available at < http://www.state.gov/g/drl/rls/rm/2001/1775.htm> (last visited September 28, 2003).


                                                    3
             -    ―The protection of basic civil and political rights is indispensable to
                  sustainable growth.‖19
              - ―A government that seeks growth and development without respecting
                  these core rights is unlikely to succeed for very long. Development cannot
                  precede human rights; it can only proceed in harmony with human
                  rights.‖20
              - ―Individual liberty unlocks the creative and entrepreneurial spirit.
                  Protection of private property and the freedom to contract give individuals
                  the confidence to invent, innovate, and invest. Without confidence in the
                  laws that govern them, people simply will not devote their energy and
                  genius in any system.‖21
              - ―There is no substitute for free markets, transparent financial institutions,
                  and respect for the rule of law. This is why our assistance programs
                  increasingly focus on promoting democracy, good governance, fighting
                  corruption, and developing a free and independent media.‖22
              - ―It was in this spirit that our delegation participated in the Working Group
                  on the Right to Development.‖ ―It is clear, however, that significant
                  differences remain among the participants in this important debate and that
                  we still have a considerable distance to go before it can be said that a
                  genuine consensus exists regarding the definition of the right to
                  development.‖23
        U.S. Human Rights Policy, Paula Dobriansky, Under-Secretary of State for Global
         Affairs; Testimony Before the International Operations and Terrorism
         Subcommittee, Senate Foreign Relations Committee; Washington, D.C., May 24,
         2001.24 The testimony took place in the period following the loss of the U.S. seat
         at the United Nations Commission on Human Rights. The following are quotes
         illustrating the main points of the testimony.
              - ―The future policy of the United States toward the Commission would be
                  the result of a review and ultimately a decision by the President. This
                  review is now under way within the Administration.‖25 The
                  Administration ultimately decided to remain engaged with the
                  Commission and regained its seat the following year.
              - ―The United States will remain committed to human rights. It will be a
                  crucial part of our approach to China, Cuba, Indonesia, the Balkans, Iran,
                  Sudan and all the other places where fundamental freedoms are at stake.‖26
        The Role of Human Rights in Foreign Policy, Lorne W. Craner, Assistant
         Secretary for Democracy, Human Rights, and Labor; Remarks to the Heritage
         Foundation, Washington, DC, October 31, 2001.27

19
   Id. at ¶ 4.
20
   Id. at ¶ 5.
21
   Id. at ¶ 6.
22
   Id. at ¶ 7.
23
   Id. at ¶ 9.
24
   Available at <http://www.state.gov/g/drl/rls/rm/2001/3062.htm> (last visited September 28, 2003).
25
   Id. at ¶ 8.
26
   Id. at ¶ 9.
27
   Available at <http://www.state.gov/g/drl/rls/rm/2001/6378.htm> (last visited September 28, 2003).


                                                    4
             -    ―Our policy in this Administration, and it is certainly true after September
                  11, is to focus on U.S. national interests. Lest that sound bloodless to my
                  colleagues in the human rights community, it should be understood that
                  the definition of national interests can never be as narrow as it was
                  through the late 1970s. Indeed, those at high levels of this administration
                  watched during those years as a narrow definition of national interests led
                  us to back the Shah of Iran, Somoza, and others. […] Our focus on
                  national interests will come by concentration on advancing human rights
                  and democracy in countries important to the United States. Some are
                  obvious -- nations of the former Soviet Union, Indonesia, Colombia and
                  Cuba -- but others come to mind, including nations in Africa with a high
                  demonstration value in their respective regions, such as Zimbabwe,
                  Kenya, and Nigeria.‖28

Specific Issues

The International Criminal Court (ICC)
    For information on U.S. opposition to the International Criminal Court see the
       Supplement to Chapter 8 on this site, available at
       <http://www1.umn.edu/humanrts/intlhr/chapter8.html>.
    Bilateral Agreements
           - the administration has actively pursued a policy of preventing the ICC
               from gaining jurisdiction over any U.S. citizen by entering into bilateral
               agreements that preclude those nations from transferring U.S. citizens to
               the jurisdiction of the ICC.
           - Approximately 54 countries have now signed such agreements.29 States
               that did not sign were subject to the withdrawal of U.S. military aid.
    American Servicemembers’ Protection Act of 2002
       –   The American Servicemembers’ Protection Act of 200230 became law on
           August 3, 2002, with the signature of President Bush.31 In part, the statute:
                Prohibits cooperation with the ICC by U.S. state and federal
                   government entities;32
                Prohibits U.S. military participation in U.N. peacekeeping operations
                   unless the President certifies to Congress that peacekeeping personnel
                   are exempt from ICC jurisdiction;33
                Prohibits U.S. military assistance to parties to the ICC Statute’s state
                   parties;34 and

28
   Id. at ¶ 19.
29
   See Signatories of US Impunity Agreements (so-called Article 98 agreements) available at
<www.iccnow.org/documents/otherissues/impunityart98/BIASignatories4Sept03.doc> (last visited
September 26, 2003)
30
   22 U.S.C. §§ 7401 & 7402 (2002) and 22 U.S.C. 7421 et seq. (2002).
31
   U.S.: ‘Hague Invasion Act’ Becomes Law, Human Rights News, Human Rights Watch, August, 03,
2002, available at <http://www.hrw.org/press/2002/08/aspa080302.htm> (last visited, October 17, 2003).
32
   22 U.S.C. § 7423 (2002).
33
   22 U.S.C. § 7424 (2002).
34
   22 U.S.C. § 7426 (2002).


                                                   5
                    Authorizes ―all means necessary and appropriate to bring about the
                     release of U.S. military personnel and government officials and of
                     certain allied personnel who are being detained or imprisoned by the
                     ICC.‖35

             -   These restrictions are subject to waiver by the President on national
                 security grounds, as defined by the statute.36 The statute’s authorization of
                 ―all means necessary and appropriate‖ has been called the ―Hague
                 invasion clause‖ because it contemplates the use of U.S. military force to
                 ―liberate‖ U.S. personnel in ICC custody at the Hague, in the Netherlands.

        United Nation Security Council Resolutions
            - in response to U.S. threats to veto all further peacekeeping missions, the
                UN Security Council passed Resolution 1422 in July 2002, which
                provided that all U.N. peacekeepers from non-ICC State parties would be
                exempt from ICC investigation or prosecution for one year, renewable
                yearly for as long as necessary.37
            - On June 12, 2003, the Security Council again extended for a year the
                exemption for officials and personnel of nations that had not ratified the
                Statute of the International Criminal Court.38

        Further Reading
            - Diane Amman and M.N.S. Sellers, The United States of America and the
                International Criminal Court, Vol. 50, AM. J. COMP. L. 381 (2002)
                        The U.S. alternative to the ICC might be ad hoc tribunals of the
                           kind established for the former Yugoslavia and Rwanda, as
                           discussed in the supplement to Chapter 8.39

State Activities in the Federal System40
     In response to activism by residents in the state, Massachusetts passed a law in
       1996 restricting state purchases from individuals or companies doing business in
       Burma. The National Foreign Trade Council (NFTC), a non-profit organization
       representing member companies engaging in foreign trade, challenged the law.
           - National Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 1991)
                         The court upheld the district court’s finding that the law
                           interferes with the foreign affairs power of the federal
                           government.
                         The appeals court found that the law violated the Foreign
                           Commerce clause of the U.S. Constitution.

35
   22 U.S.C. § 7427 (2002).
36
   22 U.S.C. §§ 7422, 7424(c)(3), 7426(b) & (c) (2002)
37
   See the Supplement to Chapter 8, available at <http://www1.umn.edu/humanrts/intlhr/chapter8.html>.
38
   U.N. Doc. S/Res/1487 (2003), available at < http://www.un.org/Docs/sc/unsc_resolutions03.html> (last
visited October 10, 2003).
39
   Available at <http://www1.umn.edu/humanrts/intlhr/chapter8.html>.
40
   See Coursebook at 572, Note 2.


                                                   6
                               It also found that the law violated the Supremacy clause
                                because it was preempted by federal sanctions against Burma,
                                which were enacted three months after the Massachusetts law
                                was passed.
                               The state appealed the case to the Supreme Court.

             -    Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000)
                         The Supreme Court upheld the appeals court decision on the
                             limited grounds that the federal statute pre-empted the state
                             legislation.

      Further reading on the role of states in the U.S. federal system
           - David Sloss, International Agreements and the Political Safeguards of
               Federalism, 55 STAN. L. REV. 1963.
Curtis Bradley, World War II Compensation and Foreign Relations Federalism, 20
BERKELEY J. INT’L L. 282 (2002)

E-4. U.S. Military Intervention and Human Rights

James Meernik, Steven C. Poe, & Erum Shaikh, Human Rights, Democracy, and
U.S. Military Intervention, Paper Prepared for the Annual Convention of the
Midwest Political Science Association, Chicago (2003) at:
<http://www.indiana.edu/~mpsa/proposal/qrypaperdownload.html> (last visited
November 11, 2003)

        Meernik, Poe, & Shaikh analyze U.S. military interventions from 1977 to 1996.
Levels of democracy and human rights are considerations in U.S. military intervention,
but use of force does not result in improved conditions. Non-democratic, somewhat
economically developed countries that abuse their citizens’ rights are most likely to be
targets of U.S. intervention. They use Polity III data and Political Terror Scale scores to
measure levels of democracy and respect for human rights.41 Past military conflict with
the United States, recent crises, and relatively large armed forces are also predictors of
U.S. tendency to use force. Meernik, et al. conclude that although the historical record
shows that most U.S. military interventions in their target period—much of which was
during the Cold War—happened because of security concerns other than human rights,
the data is nonetheless consistent with a pattern of humanitarian intervention. There is,

41
  Data is available from the Polity III archive at: <http://weber.ucsd.edu/~kgledits/Polity.html> (last visited
November 17, 2003). This page also includes links to newer sets of data, including Polity IV. The Purdue
University Political Terror Scale (PTS) was created in 1983 by Michael Stohl, includes data from 1980-
1996, and uses information from U.S. Department of State and Amnesty International Annual Reports to
assign numerical values to the general level of human rights abuses within countries. For each year,
countries within the data set are assigned values from 1 to 5 (1 is assigned to states ―under a secure rule of
law‖ with minimal abuses and 5 is assigned to states in which abuses are widespread and ―leaders of these
societies place no limits on the means or thoroughness with which they pursue personal or ideological
goals.‖) It is available at: <http://www.ippu.purdue.edu/global_studies/gghr/research_pts.cfm> (last
visited November 17, 2003).



                                                      7
however, no firm evidence that human rights or democratic conditions improve
significantly when the United States decides to intervene.

                                         NOTES:

        Among the initiatives supported by U.S. funds are training for members of foreign
militaries either abroad or at hundreds of facilities in the United States. Several recent
studies by NGOs have catalogued and evaluated U.S. training programs for foreign
militaries and police.

AMNESTY INTERNATIONAL USA, UNMATCHED POWER, UNMET PRINCIPLES: THE
HUMAN RIGHTS DIMENSIONS OF US TRAINING OF FOREIGN MILITARY AND POLICE
FORCES (2002) at <http://www.amnestyusa.org/arms_trade/index.html> (last visited
November 17, 2003).

        The United States government trains 100,000 foreign police and soldiers from 150
different countries each year. The training funds come from several different budgetary
accounts that include International Military Education and Training (IMET), Joint
Combined exchange Training (JCET), and police training. Some training is done by
private military contractors. The end of the Cold War and post-September 11th security
concerns have been a catalyst for increases in the portion of security assistance that
consists of military training of foreign nationals.

         There have been hundreds of cases in which students trained in U.S. military
programs have later committed egregious human rights violations. Since military skills
are easily transferable, there should be appropriate oversight and accountability for the
training the U.S. does. Although there are several laws on the books to provide some
regulation to U.S. training at the 275 U.S. military institutions and numerous foreign
sites, there are still great shortcomings in the extent to which the laws have been
implemented.

        Some courses include human rights training as part of the curriculum, but there
are many programs in which students may receive no such training. Human rights
instruction is required in IMET programs and, for example, at the Western Hemispheric
Institute for Security Cooperation (WHINSEC)—formerly known as the School of the
Americas.

        Amnesty International recommends more transparency and accountability for the
training programs, mandatory human rights training for all trainees, better and more
consistent vetting for trainees before they take part in U.S. programs, and investigations
into allegations that past practices in U.S. training programs have directly contributed to
human rights abuses.

HUMAN RIGHTS WATCH, DANGEROUS DEALINGS: CHANGES TO US MILITARY
ASSISTANCE AFTER SEPTEMBER 11 (2002) at <http://www.hrw.org/reports/2002/usmil/>
(last visited November 17, 2003).



                                             8
       In the months after September 11th, the United States took a series of actions in its
war against terrorism that reduced safeguards on U.S. security assistance to other
countries. The legal regime governing assistance changed. For example, Congress and
President Bush waived many restrictions on military assistance to India and Pakistan.
Other restrictions on sales and assistance were modified and the Defense Security
Cooperation Agency (DSCA)—the organization within the Department of Defense that
administers foreign military sales—took steps to expedite military assistance.

       Human rights advocates did succeed in increasing restrictions on Uzbekistan—
which had a record of serious human rights abuses—when Senator Paul Wellstone
ensured that the State Department would report on how Uzbekistan used U.S. assistance.

       In Afghanistan, the U.S. airdropped weapons and gave air support and ground–
based targeting assistance to the Northern Alliance/United Front forces fighting the
Taliban government. The United Front has a history of violations of international
humanitarian law. In addition to the countries of Uzbekistan, Tajikistan, Pakistan, and
India which received considerable security assistance in exchange for their cooperation in
the war on terror, increased aid also flowed to the Philippines and Indonesia to fight
domestic groups linked to al-Queda.

        Human Rights Watch argues that in this time of international conflict, the United
States should not supply weapons and training to governments that engage in a consistent
pattern of gross violations of human rights.

ADDITIONAL READINGS:

Hauke Hartmann, US Human Rights Policy under Carter and Reagan, 1977-1981, 23
HUM. RTS. Q. 402 (2001);

Andrew Z. Katz, Public Opinion and the Contradictions of Jimmy Carter’s Foreign
Policy. 30 PRES. STUDIES Q. 662 (2000). (Katz argues that implementation of President
Carter’s human rights agenda was hampered by his ineffectively explaining it to the
American public.)

Harold Hongju Koh, A Human Rights Policy for the 21st Century, 46 ST. LOUIS U. L.J.
293 (2002).

Respondents
    Derek P. Jinks, The Legalization of World Politics and the Future of Human
      Rights Policy, 46 ST. LOUIS U. L.J. 357 (2002)
    Juan E. Méndez, Human Rights Policy in the Age of Terrorism, 46 ST. LOUIS U.
      L.J. 377 (2002)
    Michael H. Posner, Response to Harold Koh’s Childress Lecture-A United States
      Human Rights Policy for the 21st Century, 46 ST. LOUIS U. L.J. 411 (2002)




                                             9
              Argues that the war on terrorism may lead to changes in the accuracy and
               reliability of State Department Country reports.
      David Sloss, Hard-nosed Idealism and U.S. Human Rights Policy, 46 ST. LOUIS
       U. L.J. 431 (2002)

Timothy J. Kepner, Torture 101: The Case Against the United States for Atrocities
Committed by School of the Americas Alumni, 19 DICK. J. INT’L L. 475 (2001). (Kepner
argues the case for U.S. responsibility for some of the atrocities committed by Latin
American trainees of U.S. security assistance programs. Victims might sue the United
States under the Alien Tort Claims Act and the Federal Tort Claims Act on the grounds
that the Department of Defense showed ―deliberate indifference‖ to the consequences of
the training it provided to foreign militaries.)

Richard L. Millett, The United State and Latin America’s Armed Forces: A Troubled
Relationship, 39 J. OF INTERAMERICAN STUDIES AND WORLD AFFAIRS 121 (1997);

Russell W. Ramsey & Antonio Raimondo, Human Rights Instruction at the U.S. Army
School of the Americas, 2 HUM. RTS. REV. 92 (2001). (School of the Americas faculty
argue that human rights training at the U.S. Army School of the Americas reduced the
incidence of gross human rights violations in Latin America.)

L. Kathleen Roberts, The United States and the World: Changing Approaches to Human
Rights Diplomacy under the Bush Administration, 21 BERKELEY J. INT’L L. 631 (2003).




                                          10