This week the United States is up for its Periodic Review at the UN Human Rights Committee. One of the most contentious issues that will be raised is whether the US will accept that core human rights provisions apply outside its borders.
This would seem a logical and sound policy from a government, which purports that "The story of the United States of America is one guided by universal values shared the world over--that all are created equal and endowed with inalienable rights," as it said last time it was up for scrutiny at the Human Rights Council.
Yet, as Charlie Savage reported last week, the US has no intention of changing its position despite all the legal arguments advanced by its former top human rights officials. Both Michael Posner, the former Assistant Secretary of State for the Bureau of Democracy, Human Rights and Labor at the State Department, and Harold Koh, the former top State Department Lawyer, have said that there are no reasons for the US to maintain an "increasingly implausible legal interpretation."
The rationale was first put forth in 1995, just after the US Senate had ratified the International Covenant for Civil and Political Rights (ICCPR), and the State Department's Top Lawyer was asked point blank if the US recognized that it would apply beyond its borders.
This treaty, and by it having been ratified by the Senate it's binding and of obligatory fulfillment, comport the basic rights to not be tortured, not to be killed arbitrarily (i.e. drones), to have privacy (think NSA), and of due process among others.
The US said then, that no, it didn't accept that the US would be bound to respect those core rights of people outside its borders.
The legal explanation comes down to the interpretation of the phrase "within its territory and subject to its jurisdiction." Does it apply to someone who is both in the US territory and under its jurisdiction or to someone who is not in the US territory but under its jurisdiction?
The Clinton and Bush administrations interpreted it only as the former, citing security and foreign policy. Bush would take it even further with the infamous article 98 agreements of the International Criminal Court Statute pursued to prohibit any state from surrendering a US Citizen to the Court for Genocide, Crimes Against Humanity, and War Crimes. The Bush administration pressured 102 countries into signing these agreements, called Bilateral Immunity Agreements.
The rationale then, and it applies just as much to the case of the ICCPR, is that the Statute was undermining the clear cut rational of binding treaties whereby only the countries that had ratified any treaty would be beholden to it. In this case, even if the nationals of a country, which hadn't signed the agreement, were accused of committing one of these grave crimes, the country would be required to surrender them to the ICC. Apart from that, the US argued that this would limit the ability of the largest deployed armed force in the world.
The counter argument of course then and now, is that these core crimes -- genocide, war crimes and crimes against humanity -- are so grave that they're considered peremptory or customary law. That is, they're crimes whether you sign it or not. The same rationale, if not as strongly, applies to the provisions of the ICCPR.
The bigger underlying argument, as explained by John Fonte in his book Sovereignty or Submission: Will Americans Rule Themselves or be Ruled by Others? is whether liberal democracies are being undermined by these supranational treaties. After all, he says, if rights can only be protected by states through a judiciary that has an enforcement mechanism, (normally the police) why should states be responsible for the rights of people who are not its citizens? And furthermore, if there's no international police (and would we want there to be one?) how are they going to enforce them?
This is cynical at its best, perverse at its worst. Yet Fonte argues persuasively against the supranational system leading to Global Governance, which, according to him, can turn perversely onto the world citizens. His main point is that these Committees and Treaties are administered and judged by people who are not elected by the people and have no real accountability. How is the US Supreme Court going to preserve its legitimacy and independence if it's no longer the highest court on the land, he asks?
Additionally, the US respects the provisions of the ICCPR almost better than any other country. Does not recognizing they apply outside its borders really undermine the treaty or does it strengthen the argument that what states should do is endeavor to respect themselves in their own country?
On the other hand, Ryan Goodman, a law professor at NYU and editor of the popular Just Security blog, bases his arguments as well on the fact that not extending the rights to people outside the US undermines the effectiveness of American Policy in relation to Ukraine, for example.
"How problematic that Putin now knows he will have a friend in Washington if Moscow tries to scuttle the [ICCPR] Committee's attention to Russian actions in Ukraine," Goodman wrote on Just Security.
How problematic indeed.