During an introductory seminar yesterday on the current state of international law, I was reminded of America's lack of participation in the international human rights regime.

I cut this sentence because it doesn't seem very relevant.

While many independent American universities and organizations are proactive in sponsoring human rights awareness and enforcement abroad through academic programs such as the one at Columbia, the U.S. government is often more independent in its foreign policy. As a descendant and result of the tradition and culture which is almost entirely responsible for the production of modern political and civil human rights conventions, how problematic is the U.S. stance for the development of international human rights?

What is International Law?

While much of the scholarship surrounding the benefits and content of international law (essentially, the need for accountability and prevention of large-scale conflict) was spawned in the aftermath of World War Two and the Nuremburg trials, international custom pre-existed this era and substantially forms the foundation for the contemporary international legal schema. The three main sources of international law, in order of importance, are treaties, customs and general principles of international law. Human rights treaties, in particular, are generally considered more legally binding than contractual in nature than other treaties. For example, the Universal Declaration of Human Rights, one of the most influential statements of human rights standards, is an accepted part of customary international law, which binds all countries, not just consenting treaty parties.

I think the divide between the ICCPR and ICESCR deserves a mention here. The West adopted the ICCPR, the East the ICESCR, split along a belief over what rights (positive/economic and negative/political) were fundamental. The East eventually ratified the ICCPR, some countries did it before the fall of the wall, some after, and Western Europe did the same with the ICESCR. We still haven't ratified the ICESCR.

Yet there are countless arguments over whether any body of international law can legitimately exist without a central legislative authority (the U.N. does not make law, nor does the International Court of Justice have compulsory jurisdiction) or an executive mechanism of rule enforcement. This problem is even more pronounced in the field of human rights law. The debate on international rule of law is often grounded in the human rights regime. One of the most noticeable complications is the practice of the U.S. government of excluding itself from formalistic adherence to the international legal regime, while still affirming the principles of human rights. This notion is known as American exceptionalism, a term first coined by Alexis de Tocqueville and reiterated by political theorists such as Tim Dunne in the context of American foreign affairs.

Or more generally by some international law scholars as "realism"- in this case that a powerful enough nation will participate in international law only as far as it parallels the self-serving goals of that nation. (Just a comment, not really an edit)

American Exceptionalism

Currently, the U.S. has not ratified the Kyoto Protocol and has unsigned the Rome Statute, exempting it from the International Criminal Court’s jurisdiction. The U.S. has also failed to ratify the Convention on the Rights of the Child, which prohibits child trafficking and enlistment of child soldiers, by seeking a reservation on juvenile death penalty (although President Obama has promised to review this omission). The only other country that has not ratified the CRC is Somalia. In addition, the U.S. has not yet ratified, among other agreements, the Convention Relating to the Status of Refugees (regarding rights of asylum seekers), the Optional Protocol to the Convention against Torture (which allows for international oversight of the Convention Against Torture, to which the U.S. is a member), and the Convention on the Elimination of All Forms of Discrimination Against Women (boycotted by many Islamic nations and protested in the United States by Christian right-wing groups).

You should mention the specific provisions in CEDAW that are opposed, I think the Christian groups have issues with abortion and the possibility of an equal rights amendment becoming necessary. This would help people understand exactly why it is not politically viable to ratify this treaty.

American exceptionalism is one of the leading sources of criticism against supporters of human rights law.

This is a bit unclear- do you mean those supporters who believe international law regimes can work, or supporters of HR law in America and around the world who believe the United States should join these treaties?

However, the U.S. cites a number of reasons for America’s position. Mainly, the government is concerned with being subject to a politically motivated form of international justice. Moreover, the U.S. contends that since many of the principles of international law are already incorporated into the U.S. Constitution itself, international accountability is unnecessary. Thus, while the U.S. recognizes the principles of human rights, it sees itself as beholden only to domestic jurisdiction.

It seems to me that these are only hollow justifications for the real reason that we don't join other nations in CEDAW, CRC, International Convention for the Protection of All Persons from Enforced Disappearance, which is that it is not politically tenable in this country to admit that any of our policies, no matter how "exceptional" within the sphere of the Western world, might be wrong and that our peers in Europe, Australia, and Japan could have it right. Another reason may be that our country is so singularly influential on the world stage that it has no incentive to change it's policies to conform to these treaties and will join them only after the necessary changes have been affected here for unrelated reasons. If you forgive the cheesy expression, there is no carrot and no stick.

How harmful is the U.S. stance on these issues? The U.S. has often been accused of relegating human rights in the interest of national security. The U.S. has cooperated with states that are gross violators of human rights in exchange for aid in the War on Terror and has continued to operate detainee facilities that arguably violate both the Geneva Convention and the U.S. War Crimes Act of 1996. In this context, the government’s unwillingness to officially consent to a formal human rights agenda, especially as a Western liberal state, seems highly problematic.

Not necessarily problematic, because we don't seem to be suffering any trade embargoes or civil unrest. Probably more hypocritical. But then that gets back to the realism argument, that powerful nations can be hypocritical (why not?) or the justification proffered by the government, that the rights we don't recognize are not really rights in the American tradition.

Another criticism of these conventions is that they are toothless. Countries that are powerful enough to flout them do so at will, smaller countries still flout them secure in the knowledge that any penalties for doing so won't amount to more than a slap on the wrist (unless in doing so they piss off one of the big boys), and the so-called "civilized" nations pick and choose which rights are included (which are invariably rights they've long decided are fundamental and thus acknowledging them causes no social upheaval) and imposes them on the rest of the world, where there are serious political and cultural consequences in radically changing society to fit in with a Western worldview. Perhaps an example of a country that adopted one of the above conventions and then made a good faith effort to change society to conform to the provisions of those conventions is in order.

The Role of International Law in U.S. Courts

Despite the government’s reluctance, the United States Supreme Court has not hesitated to invoke international law in constitutional interpretation.

But what about Scalia?

In Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), a U.S. federal court employed the Alien Tort Claims Act to claim jurisdiction over a dispute between two non-Americans for acts committed abroad in contravention of public international law or U.S. treaty agreements. In its opinion, the Court made reference to the UN Charter and the UDHR in recognizing torture as a crime.

ATCA is an interesting law but I don't think this particular case is a good example because of the nature of the plaintiffs and defendant. Courts have no problem applying international treaties when dealing with a private dispute between non-citizens (especially non-citizens who tortured and murdered defenseless people), but I doubt that someone who suffered at the hands of Blackwater/Xe operatives in Iraq could seek the same protections, although that would be an interesting point for research. Is there a case where American courts have referenced international law to American citizens/companies on a claim brought by a non-citizen?

More recently, in Roper v. Simmons, 543 U.S. 551 (2005), the Court accepted an amicus curiae brief from international human rights lawyers in deciding to strike down juvenile death penalty. The majority noted that only the U.S. and Somalia had not ratified the CRD and seven other countries besides the U.S. allowed the execution of juveniles: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the DRC and China. (Roper, 543 U.S. at 577) The Court concluded that there was a general consensus in moving away from the use of capital punishment in juvenile cases and reflected that this may be the mark of a decent society.

A Brighter Future? If courts are willing to acknowledge international laws and customs, then perhaps there is a chance the legislative branch will consider formally adopting them. Such an action would strengthen the credibility of the global human rights regime, which the U.S. should seek to do if it purports to support human rights. As one of the most vocal proponents of democracy and liberty, the U.S. could take a strong stand on the enforcement of human rights domestically and abroad; to exempt itself from doing so on an international stage is much more damaging to state security in the long run.

Why?

The second example you gave about Roper probably better fits with the main issue in this essay, which is the US's relative lack of participation in the international human rights regime. The issue in the future might be whether other nations will allow us to dictate human rights to them when we abstain from some of the human rights treaties. Another case highlighting a willingness of the court to apply instruments of international law to an American party could be helpful.

Anyway, these aren't final edits. Tell me what you think of them and whether you think they divest too strongly from the main point of your paper.

Re ICCPR and ICESCR- you're right, those are distinguishable parts of the UDHR. The US has signed and ratified the ICCPR, but with enough reservations to make it virtually non-enforceable against us. As for the ICESCR, it's been signed and not ratified (has to go through Congress), which many consider politically improbable because the ICESCR has been read by to include the right to universal health care, abortion services, etc, all of which are contested and highly controversial in the US (similar to the conflict with CEDAW)` Re American exceptionalism- I meant scholars who support the existence of an inclusive and superseding international human rights regime, which they see threatened by the existence of American exceptionalism. I'll try to make this more clear.

Re justifications- I'm not entirely sure American hesitation is due to the fact that we think our policies might be objectively wrong, although they may very well be. I think the concern is that by committing to international covenants, our ability to make unilateral decisions in the best interest of our country is arguably reduced and we are made vulnerable to political persecution from unfriendly nations. While this may or may not be true, it does relate to the second point you make, that we have no need to make these concessions in our unique status as a superpower; hence, our exemption. The argument is we either already abide by human rights standards or we have good reason not to. But this speaks to my point- while there is no imperative, our acquiescence to the human rights regime, if we are as supportive as we say we are, would only strengthen it-if human rights are really consistent with our political philosophy, this should be incentive enough.

Re hypocrisy- I think you're right. My point is that this our hypocritical stance is problematic for the credibility of the regime we purportedly helped design. While it's true we may not accept certain universal economic rights, I think it's safe to say that the rights of the child or unqualified ratification of the ICCPR would not conflict with our mores. And your second point is correct in that this is a larger problem with the legitimacy of international law in general- it is Western dominated and often unenforceable. But I think greater US support would bolster the viability of the regime, and at least indicate our willingness to engage in a serious dialogue about international human rights on a world stage.

Re ATCA- I know In Re Union Carbide involved tort claims made by the Indian government against a U.S. company, but the case was dismissed to be tried in India under forum non conveniens. Finding cases against the military might be tricky, since they operate in a different jurisdiction, but I'll look. I think the Roper case fits better as well. Maybe a good case to mention might be Hamdan v. Rumsfeld, where the court struck down military commissions in Guantanamo because they violated both military law and the Geneva Conventions?

Anyway, thanks for the detailed comments, they were very helpful!

-- NovikaIshar - 27 Apr 2010

Rewrite

American Exceptionalism The debate on international rule of law is often grounded in the human rights regime. One of the most noticeable complications to this regime is American exceptionalism, the practice of the U.S. government of excluding itself from formalistic adherence, while publicly affirming human rights principles.

What is International Law? The Universal Declaration of Human Rights evolved from international custom after World War Two. The UDHR is one of the most influential statements of human rights standards, binding all countries regardless of treaty signatory status. The United States has not ratified one half of the UDHR, the International Covenant on Economic, Social, and Cultural Rights (ICESCR), originally drafted and adopted by the Eastern Bloc. The split between the ICESCR and the International Covenant on Civil and Political Rights (ICCPR) was thought to represent the difference in fundamental values between the East and West. Western Europe ratified the ICESCR and the former Eastern Bloc the ICCPR, the United States has not yet ratified the ICESCR.

America exempts itself from the jurisdiction of the International Court of Justice in any matter considered within the domestic jurisdiction of the nation, as defined by the United States. In Nicaragua v. United States (1984), the US resurrected this policy to avoid paying reparations to the Nicaraguan government. Currently, the U.S. has not ratified the Kyoto Protocol and has unsigned the Rome Statute, exempting it from the International Criminal Court’s jurisdiction. The U.S. and Somalia are the only two countries that haven't ratified the Convention on the Rights of the Child, which prohibits child trafficking and enlistment of child soldiers. The U.S. abstains from the Optional Protocol to the Convention against Torture (which allows for international oversight of the Convention Against Torture, to which the U.S. is a member), and the Convention on the Elimination of All Forms of Discrimination Against Women (protested by Christian right-wing groups who disagree with its provisions on health care and contraception). Each of these treaties contains individual provisions objectionable to domestic interest groups.

Realist Arguments Against International Law Regimes Critics of the human rights regime point to the lack of U.S. participation as evidence that the current regime is not working or that it can never work because powerful nations will always "opt out," either by not ratifying a treaty, subjecting it to reservations, or not enforcing its provisions. International human rights regimes are largely a tool used by powerful, rich nations to impose their will on smaller nations. These nations disregard the agreements whenever they wish, or simply refuse to sign.

Relativists argue that human rights as proposed in the UDHR largely reflect Western values, thus compliance with these treaties is less politically risky to Western governments than for nations that must force artificial changes in longstanding cultural and societal practices. Sometimes, nations can avoid compliance with these treaties by seeking protection from a powerful nation, usually the U.S., Russia, or China. This undermines the ability of a unified international community to challenge single nations.

American Justifications The U.S. cites a number of reasons for its position. The government is concerned with being subject to a politically motivated form of international justice. Moreover, the U.S. contends that since many of the principles of international law are already incorporated into the U.S. Constitution itself, international accountability is unnecessary. Thus, while the U.S. recognizes the principles of human rights, it sees itself as beholden only to domestic jurisdiction.

Political will plays a large part in ignoring these issues. The United States suffers no economic or political repercussions from non-participation in these treaties, in fact, non-participation is a boon to politicians representing certain constituencies. Take the CRC. Imposing restrictions on the death penalty will alienate those voters for whom the death penalty is a third rail, especially if the only proffered justification for these changes is an international treaty. In a district controlled by pro-death penalty voters there is some risk to joining the treaty and no benefit to the politician.

The Role of International Law in U.S. Courts In Roper v. Simmons, 543 U.S. 551 (2005), the Court accepted an amicus brief from international human rights lawyers in a juvenile death penalty case. The majority noted that only the U.S. and Somalia had not ratified the CRC and seven other countries besides the U.S. allowed the execution of juveniles: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the DRC and China. (Roper, 543 U.S. at 577) They concluded that there was a general consensus in moving away from juvenile capital punishment in and reflected that this may be the mark of a decent society. The court overrode federalism concerns, striking down the juvenile death penalty in 25 states that still allowed it.

If courts are willing to acknowledge international laws and customs, then perhaps there is a chance the legislative branch will consider formally adopting them. Such an action would strengthen the credibility of the global human rights regime, which the U.S. should seek to do if it purports to support human rights. As one of the most vocal proponents of human rights, the U.S. could take a strong stand on the enforcement of human rights domestically and abroad; to exempt itself from doing so on an international stage is much more damaging to state security in the long run. Widespread violations of human rights breed resentment and rebellion, and American support for violators of human rights provides a convenient target for dissidents. The rise of anti-American regimes in Iran and Cuba following our support for human rights violators in those countries are prime examples.

Whether human rights regimes can be enforced when the countries participating in them do not take them seriously is another matter. Many countries that have ratified the major international treaties do not guarantee their citizens the right in practice. However, a certain amount of resistance or non-compliance is expected when smaller legal and political entities attempt to form into larger ones. Only, time will tell if the current incarnation of the international legal system is overambitious.

-- JonathanWaisnor - 19 Jun 2010