-- NovikaIshar - 17 Apr 2010 International Human Rights Law and the United States

When I attended an introductory seminar yesterday that overviewed the current state of international law, from its sources to (lack of) enforcement, I was reminded how underrepresented the United States is in the global group of treaty signatories. This summer, I will be participating in the Human Rights Internship Program as an assistant researcher on the rights of women and children in South Africa. 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, U.S. foreign policy often takes a more controversial humanitarian stand. As one of the leading Western powers, the hemisphere which is almost entirely responsible for the production of modern 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 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.

U.S. 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 and protested by Christian right-wing groups).

American exceptionalism is one of the leading sources of criticism against supporters of human rights law. However, the U.S. cites a number of valid 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.

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.

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 convict a non-American 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.

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. practiced juvenile death penalty: 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.