By consistently behaving as if human rights law does not apply to itself, the USA poses a challenge to the universality of the Universal Declaration of Human Rights.

By Reed Brody

May 1999

As we celebrate the 50th anniversary of the Universal Declaration of Human Rights (UDHR), there is a new challenge to the Declaration's universality. It comes not from the ayatollahs or the economically-humbled hawkers of 'Asian values'. This time, the challenge comes from the country whose influence predominated in both the drafting and the internationalising of the UDHR - the United States of America.

Unlike previous challengers, the US does not actually argue that the international bill of human rights is not of universal relevance. Rather, and more pernicously, it just consistently behaves as if human rights law does not apply to the United States.

The US Record

On Ratification: One good illustration is the United States' record of ratifying human rights treaties. The US is the only country in the world - other than the collapsed state of Somalia - that has not ratified the Convention on the Rights of the Child. The US is also one of only a handful of countries that have not ratified the Convention on the Elimination of All Forms of Discrimination against Women. Nor has the US ratified the International Covenant on Economic, Social and Cultural Rights or the American Convention on Human Rights.

When the US does ratify treaties, government lawyers comb through each treaty to identify any rights that might strengthen existing guarantees under US law, and then nullify them through reservations or declarations. Thus, the International Covenant on Civil and Political Rights (ICCPR) prohibits passing a death sentence on anyone aged less than 18 at the time of the crime. Yet a US reservation preserves its right to execute juvenile offenders. Similarly, because the US permits prolonged solitary confinement and other conditions of detention internationally considered as forms of torture or cruel treatment, it entered a reservation to the right to freedom from cruel, inhuman or degrading treatment or punishment in the ICCPR.

Finally, to guard against the possibility that the remaining rights might be construed more broadly than US law, Washington then ratifies the treaties in a way that denies US residents the right to enforce their provisions in US courts (because they are 'non-self-executing') or before the international treaty bodies charged with upholding them (because the US refuses to allow individual petitions). The result is that ratification becomes an almost cosmetic gesture.

Commenting on US ratification of the ICCPR, the American Civil Liberties Union lamented that 'the endorsement of the most important treaty for the protection of civil rights yielded not a single additional enforceable right to citizens and residents of the United States.'

We see a similar attack on universality in the US government's response to recent efforts to strengthen international human rights law.

On Land-mines: Washington refused to support the treaty banning anti-personnel land-mines unless the drafters allowed the Pentagon to continue using these indiscriminate weapons. Fortunately, the drafters refused. The mine ban treaty, signed by virtually all Western countries, has already become one of the treaties which have entered into force most rapidly.

On the Use of Child Soldiers: An estimated 300,000 child soldiers world wide contribute significantly to the inhumanity of war. The Convention on the Rights of the Child sets 18 as the age of maturity on most other matters, and there is a broad international consensus that this bright line should be used to define the appropriate age of soldiers. But because the Pentagon recruits 17-year-olds out of secondary school, the US government has blocked consensus on a proposed protocol (to a convention it has not ratified) barring the recruitment of anyone younger than 18.

International Criminal Court

The United States was one of only seven governments to vote against the Rome treaty to establish an International Criminal Court (ICC) - along with China, Iraq, Libya, Israel, Qatar, and Yemen - against 120 supporters. The Rome delegates went a long way toward addressing US fears of frivolous or politically motivated prosecutions. The ICC will have jurisdiction only if national courts are unable or unwilling to pursue a matter, meaning that the United States would be able to avoid any prosecution of its citizens by conscientiously acting on the case in question.

Moreover, the definition of the crime of greatest concern to the United States - the one governing attacks that cause disproportionate harm to civilians - was rewritten to make it much harder to call an attack a crime. Indeed, to the detriment of the court, its ability to acquire jurisdiction over a crime was significantly restricted in a futile effort to placate Washington. Yet the United States still left the Rome conference vowing to re-open negotiations and 'fix' the treaty.

What Washington evidently wanted, and what the Rome delegates refused to cede, was the opportunity to exempt US nationals altogether from the court's reach. That demand, never stated explicitly but implicit in many of the US proposals, is inconsistent with the funadamental principle that justice must apply equally to all.

US Reaction to International Scrutiny

Perhaps even more disturbing is the reaction - by US officials and others - to scrutiny of the US's own human rights record by the United Nations or NGOs.

In 1997, after several requests, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Bacre Waly N'Diaye, visited the US. While the Rapporteur had enjoyed high-level cooperation during his recent investigations in countries such as Colombia, Indonesia, Peru, Rwanda and Burundi, in the United States he was shunted to lower-level officials.

The powerful Chairman of the Senate Foreign Relations Committee, Jesse Helms, complained to US Ambassador Bill Richardson about the 'so-called investigation'. 'Bill,' he asked, 'is this man confusing the United States with some other country, or is this an intentional insult to the US and our nation's legal system?' Richardson replied - even before the report was prepared - that it would simply 'collect a lot of dust'.

In March, the Rapporteur issued a sober report accusing the United States of applying the death penalty in an unfair, arbitrary, and discriminatory manner. The US complained to the UN Commission on Human Rights that the report was 'severely flawed'. The Chairman of the Republican National Committee blasted the document as 'an outrageous insult to the American people' and called on the US to withhold all UN dues until an apology was forthcoming.

Reactions to NGO reports have been similar. In July 1998, Human Rights Watch produced an extensive study of police brutality in 14 cities across the United States. The solid 440-page report addressed difficulties in holding abusive police officers accountable.

New York's Mayor Rudy Giuliani called the report the product of 'left-wing ideology working itself out'. The New York Post, in an editorial entitled 'Inhuman Lefts Watch', complained that HRW was 'spending time and energy on the supposedly urgent problem of "police brutality" in the United States' when most other countries in the world 'violate human rights on a daily basis'. The vice-president of Freedom House was categorical: 'America does not have a human-rights problem. Human Rights Watch, on the other hand, does seem to have an American problem.'

When Amnesty International launched its report on abuses in the United States in October, there was a similar response. Representative Tom Lantos, Co-Chair of the Congressional Human Rights Caucus, protested that 'to single out the United States as a perpetrator of human rights violation, I think it's preposterous and unacceptable'.

These reactions betray a sentiment that human rights apply to 'them', 'over there', but they have no relevance to 'us', 'here'. Americans would do well to remember the words of Eleanor Roosevelt after the Declaration was adopted. She asked, 'Where, after all, do universal rights begin? In small places, close to home - so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm or office where he works.

'Such are the places where every man, woman and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.' - Third World Network Features

About the writer: Reed Brody, a Board Member of the Human Rights International, is Advocacy Director of Human Rights Watch. The above article first appeared in Human Rights Tribune (Vol. 6 No. 1, January 1999).