-- NovikaIshar - 17 May 2010

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. Often, the U.S. is accused of hypocrisy and creating double-standards in human rights enforcement. As a descendant and proponent 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.

Yet there are countless debates 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 officially 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.

American Exceptionalism

The UDHR has several components, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The U.S. has signed and ratified the ICCPR, but with several reservations (including annihilating any private cause of action under the treaty), that serve to make it virtually non-enforceable. As for the ICESCR, it's been signed but not ratified, and remains pending before Congress. Many consider its ratification politically improbable because the ICESCR has been read by some advocacy groups to include the right to universal health care, abortion services, etc, all of which are contested and highly controversial in the US.

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 for the same reasons why the ICESCR continues to be opposed).

American exceptionalism is one of the leading sources of criticism against the human rights regime. Scholars who support the existence of an inclusive and superseding international human rights regime see the existence of American exceptionalism as a threat. However, the U.S. cites a number of reasons for America’s controversial position. Mainly, the government is concerned with being subject to a politically motivated form of international justice. The prevailing 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. The U.S. government also contends that since many of the principles of international law are already incorporated into the U.S. Constitution itself, international accountability is unnecessary. While these fears may or may not be valid, the U.S. ultimately has no need to make any concessions due to its unique status as a superpower; hence, American exemption. Thus, while the U.S. recognizes the principles of human rights, it sees itself as beholden only to domestic jurisdiction.

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 for the existence of international human rights.

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.

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. This willingness to reference international human rights law was exhibited again in Hamdan v. Rumsfeld, where the court struck down military commissions in Guantanamo because they violated both military law and the Geneva Conventions.

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?

America’s frequent hypocritical stance is problematic for the credibility of the regime we purportedly helped design. While it is true that we may not accept certain universal economic rights, I believe it is safe to say that the rights of children or unqualified ratification of the ICCPR would not conflict with our mores as a liberal democracy. While there is legitimate criticism that international law is Western dominated and not always enforceable, greater U.S. 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. This may also go far in persuading nations that are hesitant to allow the West to dictate human rights when we abstain from some of the human rights treaties to participate in more honest dialogue.

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. If courts are willing to acknowledge international laws and customs, then perhaps there is a chance the legislative branch will consider formally adopting these rules. Such an action would strengthen the credibility of the global human rights regime. If human rights are really consistent with our political philosophy, this should be incentive enough.