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US Should Seek to Reform Its Own Ambivalence Toward International Human Rights Law

March 23, 2021

When the US returned to the UN Human Rights Council as an observer in January 2021, it promptly announced that it would run for a seat on the Council. The Biden administration says it agrees with some criticisms of the Council, but that it will be best positioned to reform the Council when it again has a seat at the table. In remarks to the Human Rights Council earlier this week at the adoption of the US UPR outcome, US Acting Assistant Secretary of State Lisa Peterson acknowledged that the US' own human rights record is far from perfect, and that "American leadership on human rights must begin at home." 

The US should be a full participant in the work of the Human Rights Council, and the Biden administration is correct in recognizing that the US must confront its own human rights failings if it hopes to provide leadership by example at the UN. In earlier posts, The Advocates highlighted some challenging aspects of both the human rights situation in the US and the Biden administration's responses to UPR recommendations to address them, and there are certainly other specific issues requiring attention. But there are also broader concerns about how the US approaches its international human rights obligations that the Biden administration has, so far, not shown much interest in addressing.   

Human Rights Treaty Ratification 

The US was instrumental in the founding of the UN, but is not yet a party to several of its core human rights treaties. In its Human Rights Council presentation, the US discussed several UPR recommendations it received urging it to ratify a number of international human rights treaties. It explained that while the Biden administration supports ratification of additional human rights treaties (specifically naming the Convention on the Elimination of Discrimination Against Women, The Convention on the Rights of Persons with Disabilities, and the Convention on the Rights of the Child), ratification requires the affirmative vote of 2/3 of the US Senate. Past US Presidents signed these treaties long ago, but the Senate has failed for decades to ratify them.   Assistant Secretary Peterson's remarks noted that the administration "will continue to review how we can approach ratification of these treaties."  

Not mentioned in the US presentation were rejected UPR recommendations concerning other treaties, such as the International Covenant on Economic, Social and Cultural Rights, which was also signed but never ratified, and the International Convention on the Rights of Migrant Workers or the Second Optional Protocol to the ICCPR (regarding abolition of the death penalty), which have not ever been signed. The Biden administration apparently has no plans to take action on these  treaties. 

Domestic Implementation of Ratified Treaties 

It's equally important to note that the US has long neglected its obligation to implement in domestic law and policy the treaties it has ratified. In some countries, the law allows direct application of a treaty in domestic law once the treaty has been ratified. In others, including the US, that's not the case. National legislation also must be passed to make the provisions of the treaty applicable?in domestic law, so that it can be applied by the courts or government agencies. Without this additional step, which in many areas has not ever been taken, the international treaty obligations of the US can't be enforced in US courts.  

The federal government also often takes the position that its hands are tied when it comes to the conduct of states. The truth is that efforts to persuade state governments to comply with international human rights treaty obligations (or even make the states aware of those obligations) have been few and far between. While it examines what it can do to advance the ratification of additional treaties, the Biden administration should also undertake a thorough review of actions it can take to implement and enforce the treaties that are already in place. 

The International Criminal Court 

The US has a particularly checkered history with the International Criminal Court. The US participated in the negotiations that led to the founding of the ICC, but joined six other countries (China, Israel, Libya, Qatar and Yemen) in voting against the adoption of the statute at the UN. President Bill Clinton signed the founding treaty, known as the Rome Statute, but never submitted it to the Senate for ratification. President George W. Bush later informed the UN that the US did not intend to ratify it. Since then, US relations with the ICC have varied wildly, from supporting the referral of potential crimes by the UN Security Council and arranging for the surrender of foreign suspects to pressuring other countries to sign treaties agreeing not to surrender US personnel to the court.  

The Trump administration was actively hostile to the ICC. President Trump issued an Executive Order imposing sanctions on the ICC, its staff, and anyone who dared to assist it, all in retaliation for the opening of a preliminary inquiry into possible war crimes in Afghanistan. US officials who object to the jurisdiction of the ICC typically claim it infringes on US sovereignty, but that is not true. The Rome Statute very clearly provides that its jurisdiction is secondary. The ICC will step in only when the responsible nation is unable or unwilling to conduct a genuine investigation into war crimes, genocide, or crimes against humanity, and to pursue any prosecutions that arise from that investigation. There is no doubt that the US is fully capable of doing so. If it wishes to lead the world on human rights, it certainly must also be willing. 

As of now, the Biden administration has unfortunately failed to make any movement toward more positive relations with the ICC. The US rejected UPR recommendations to ratify the Rome Statute, and to cooperate with the ICC regarding the Afghanistan inquiry, stating that while it "shares the goals of the ICC in promoting accountability for the worst crimes known to humanity," it is not a party to the Rome Statute and has never accepted its jurisdiction over US personnel. Despite numerous UPR recommendations to lift sanctions and at least one lawsuit by human rights defenders threatened with sanctions, the Biden administration has said only that it is thoroughly reviewing the matter. In public statements, it has continued to reject the authority of the ICC to pursue investigations in Afghanistan and in the Israeli-occupied Palestinian territories.  

As the US pursues its candidacy for a seat on the Human Rights Council and its stated agenda to reform the Council and restore its own place as a global leader on human rights, it has a lot of work to do. High on the list should be to reform its ambivalent approach to its own international human rights obligations and take strong action - both at home and in the international community.