Section C.1. International Duties: U.S. duties as a UN member-nation

 

For an overview of recent developments in U.S. international human rights policy and the “war on terror�, please see Joan Fitzpatrick, Speaking Law to Power: The War Against Terrorism and Human Rights, in the Supplement to the Preface on this site, available at <http://hrlibrary.law.umn.edu/intlhr/preface.html>.

 

Section D.7. Human Rights and Foreign Policy in the George W. Bush Administration

 

The National Security Strategy of the United States

 

 In September 2002, the Bush administration released The National Security Strategy of the United States of America, [1] outlining the guiding principles of its foreign policy. Prominent in the text was a re-interpretation of the right of self-defense to include pre-emptive military action against those states that it views as threats to U.S. national security. Less attention was paid to what the document had to say about the role of human rights within this new strategy. Indeed, the document generally preferred to use “freedom� or “non-negotiable demands of human dignity� instead of “human rights.�

 

• Chapter II: Championing aspirations for human dignity

-         “America must stand firmly for the nonnegotiable demands of human dignity: the rule of law; limits on the absolute power of the state; free speech; freedom of worship; equal justice; respect for women; religious and ethnic tolerance; and respect for private property.â€? [2]

-         In outlining the actions that it will take to defend human rights, the administration states that it will:

q       “speak out honestly about violations of the nonnegotiable demands of human dignity using our voice and vote in international institutions to advance freedomâ€?; [3]

q       use our foreign aid to promote freedom and support those who struggle non-violently for it, ensuring that nations moving toward democracy are rewarded for the steps they takeâ€?; [4]

q       “make freedom and the development of democratic institutions key themes in our bilateral relations, seeking solidarity and cooperation from other democracies while we press governments that deny human rights to move toward a better futureâ€?; [5]

q       “and take special efforts to promote freedom of religion and conscience and defend it from encroachment by repressive governments.â€? [6]

 

President George W. Bush’ address to the United Nations, September 23, 2003

 

  President George W. Bush addressed the United Nations on September 23, 2003, seeking to enlist the aid of the international community in the reconstruction of Iraq. [7]  The speech reiterated the central tenets of the Bush administration’s policy in Iraq, in particular, the. The speech also addressed the “war on terror,� and human trafficking. To summarize, President Bush concluded by saying,

"All the challenges I have spoken of this morning require urgent attention and moral clarity. Helping Afghanistan and Iraq to succeed as free nations in a transformed region, cutting off the avenues of proliferation, abolishing modern forms of slavery -- these are the kinds of great tasks for which the United Nations was founded. In each case, careful discussion is needed, and also decisive action. Our good intentions will be credited only if we achieve good outcomes." [8]

 

The U.S. Mission to the UN Commission on Human Rights in Geneva

 

In April 2002, the United States regained its position at the UN Commission on Human Rights.[9]  In 2003, the U.S. Permanent Representative to the U.N. in Geneva gave a statement at the 2003 session outlining U.S. human rights goals.[10]  The following are the main points:

• “We share with [the High Commissioner] a desire to see a world in which every government implements those obligations to the governed that it has assumed-in short, a world in which every man, woman and child on this planet enjoys the inalienable political and civil liberties recognized in the Universal Declaration of Human Rights.â€?[11]
• “Nations whose citizens enjoy political and civil liberties do not threaten the peace and security of other countries, near or far.â€?[12]
• “[They], instead, contribute to international peace and security.  They create the conditions for entrepreneurship and long-lasting, broad-based economic growth. They generate the means and medical advances necessary to staunch the global pandemic of HIV/AIDS.â€?[13]
• “The Commission on Human Rights can contribute to these goals primarily by helping ordinary men and women enjoy the political and civil liberties that their governments have undertaken to secure in ratified agreements.â€?[14]
• “We cannot allow human rights abusers to undermine this organization from within. We should […] consider the simple proposition that only real democracies, democracies with regularly scheduled multi-party elections, independent judiciaries, and constitutional guarantees of human rights, deserve membership on the Commission for Human Rights.â€?[15]
• “Another concern of ours relates to a recent proliferation of special rapporteurs who dissipate the Commission's limited resources, and whose mandates stray from the Commission's core mission.  The future effectiveness of the Commission of Human Rights requires prioritization: in other words, a return to the time-honored basics such as freedom of speech, thought, assembly, worship, and the press; the equal protection of the law; and of governments limited in power, subject to the will of the people expressed through competitive, regularly-held elections.â€?[16]

 

The U.S. State Department: Bureau of Democracy, Human Rights, and Labor

 

 The State Department carries much of the burden for U.S. human rights policy generation and implementation through the Bureau of Democracy, Human Rights, and Labor, website available at <http://www.state.gov/g/drl/hr/> (last visited September 23, 2003).

 The State Department’s annual Country Reports on Human Rights are available at <http://www.state.gov/g/drl/hr/c1470.htm> (last visited September 23, 2003). The State Department issues a large number of statements and press releases outlining U.S. human rights policy, available at <http://www.state.gov/g/drl/rls/>. The primary State Department report explaining U.S. actions in support of human rights is Supporting Human Rights and Democracy: The U.S. Record 2002-2003. [17]  

            The following sources address the Bush administration’s view of economic, social and cultural rights, as well as the general role of human rights in U.S. foreign policy.

 

• Right to Development, Ambassador George Moose, U.S. Delegation and U.S. Permanent Representative to the UN Offices in Geneva, Remarks to the 57th Session of the UN Commission on Human Rights, Geneva, Switzerland, March 27, 2001.[18]

-         “The protection of basic civil and political rights is indispensable to sustainable growth.â€?[19]

-         “A government that seeks growth and development without respecting these core rights is unlikely to succeed for very long. Development cannot precede human rights; it can only proceed in harmony with human rights.â€?[20]

-         “Individual liberty unlocks the creative and entrepreneurial spirit. Protection of private property and the freedom to contract give individuals the confidence to invent, innovate, and invest. Without confidence in the laws that govern them, people simply will not devote their energy and genius in any system.â€?[21]

-         “There is no substitute for free markets, transparent financial institutions, and respect for the rule of law. This is why our assistance programs increasingly focus on promoting democracy, good governance, fighting corruption, and developing a free and independent media.â€?[22]

-         “It was in this spirit that our delegation participated in the Working Group on the Right to Development.â€?  “It is clear, however, that significant differences remain among the participants in this important debate and that we still have a considerable distance to go before it can be said that a genuine consensus exists regarding the definition of the right to development.â€?[23]

• U.S. Human Rights Policy, Paula Dobriansky, Under-Secretary of State for Global Affairs; Testimony Before the International Operations and Terrorism Subcommittee, Senate Foreign Relations Committee; Washington, D.C., May 24, 2001.[24]  The testimony took place in the period following the loss of the U.S. seat at the United Nations Commission on Human Rights.  The following are quotes illustrating the main points of the testimony.

-         “The future policy of the United States toward the Commission would be the result of a review and ultimately a decision by the President. This review is now under way within the Administration.â€?[25]  The Administration ultimately decided to remain engaged with the Commission and regained its seat the following year.

-         “The United States will remain committed to human rights. It will be a crucial part of our approach to China, Cuba, Indonesia, the Balkans, Iran, Sudan and all the other places where fundamental freedoms are at stake.â€?[26]

• The Role of Human Rights in Foreign Policy, Lorne W. Craner, Assistant Secretary for Democracy, Human Rights, and Labor; Remarks to the Heritage Foundation, Washington, DC, October 31, 2001.[27] 

-         “Our policy in this Administration, and it is certainly true after September 11, is to focus on U.S. national interests.  Lest that sound bloodless to my colleagues in the human rights community, it should be understood that the definition of national interests can never be as narrow as it was through the late 1970s.  Indeed, those at high levels of this administration watched during those years as a narrow definition of national interests led us to back the Shah of Iran, Somoza, and others.  […]  Our focus on national interests will come by concentration on advancing human rights and democracy in countries important to the United States.  Some are obvious -- nations of the former Soviet Union, Indonesia, Colombia and Cuba -- but others come to mind, including nations in Africa with a high demonstration value in their respective regions, such as Zimbabwe, Kenya, and Nigeria.â€?[28]

 

Specific Issues 

The International Criminal Court (ICC)

• For information on U.S. opposition to the International Criminal Court see the Supplement to Chapter 8 on this site, available at <http://hrlibrary.law.umn.edu/intlhr/chapter8.html>.
• Bilateral Agreements

-         the administration has actively pursued a policy of preventing the ICC from gaining jurisdiction over any U.S. citizen by entering into bilateral agreements that preclude those nations from transferring U.S. citizens to the jurisdiction of the ICC. 

-         Approximately 54 countries have now signed such agreements.[29]  States that did not sign were subject to the withdrawal of U.S. military aid.

• American Servicemembers’ Protection Act of 2002

–         The American Servicemembers’ Protection Act of 2002[30] became law on August 3, 2002, with the signature of President Bush.[31]  In part, the statute:

q       Prohibits cooperation with the ICC by U.S. state and federal government entities;[32]

q       Prohibits U.S. military participation in U.N. peacekeeping operations unless the President certifies to Congress that peacekeeping personnel are exempt from ICC jurisdiction;[33]

q       Prohibits U.S. military assistance to parties to the ICC Statute’s state parties;[34] and

q       Authorizes “all means necessary and appropriate to bring about the release of U.S. military personnel and government officials and of certain allied personnel who are being detained or imprisoned by the ICC.â€? [35]

-         These restrictions are subject to waiver by the President on national security grounds, as defined by the statute.[36]  The statute’s authorization of “all means necessary and appropriateâ€? has been called the “Hague invasion clauseâ€? because it contemplates the use of U.S. military force to “liberateâ€? U.S. personnel in ICC custody at the Hague, in the Netherlands.

 

• United Nation Security Council Resolutions

-         in response to U.S. threats to veto all further peacekeeping missions, the UN Security Council passed Resolution 1422 in July 2002, which provided that all U.N. peacekeepers from non-ICC State parties would be exempt from ICC investigation or prosecution for one year, renewable yearly for as long as necessary.[37]

-         On June 12, 2003, the Security Council again extended for a year the exemption for officials and personnel of nations that had not ratified the Statute of the International Criminal Court.[38]

 

• Further Reading

-         Diane Amman and M.N.S. Sellers, The United States of America and the International Criminal Court, Vol. 50, Am. J. Comp. L. 381 (2002)

q       The U.S. alternative to the ICC might be ad hoc tribunals of the kind established for the former Yugoslavia and Rwanda, as discussed in the supplement to Chapter 8.[39]

 

State Activities in the Federal System[40]

• In response to activism by residents in the state, Massachusetts passed a law in 1996 restricting state purchases from individuals or companies doing business in Burma.  The National Foreign Trade Council (NFTC), a non-profit organization representing member companies engaging in foreign trade, challenged the law.

-         National Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 1991)

q       The court upheld the district court’s finding that the law interferes with the foreign affairs power of the federal government.

q       The appeals court found that the law violated the Foreign Commerce clause of the U.S. Constitution.

q       It also found that the law violated the Supremacy clause because it was preempted by federal sanctions against Burma, which were enacted three months after the Massachusetts law was passed.

q       The state appealed the case to the Supreme Court.

 

-         Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000)

q       The Supreme Court upheld the appeals court decision on the limited grounds that the federal statute pre-empted the state legislation. 

 

• Further reading on the role of states in the U.S. federal system

-         David Sloss, International Agreements and the Political Safeguards of Federalism, 55 Stan. L. Rev. 1963.

Curtis Bradley, World War II Compensation and Foreign Relations Federalism, 20 Berkeley J. Int’l L. 282 (2002)

 

E-4.  U.S. Military Intervention and Human Rights

 

James Meernik, Steven C. Poe, & Erum Shaikh, Human Rights, Democracy, and U.S. Military Intervention, Paper Prepared for the Annual Convention of the Midwest Political Science Association, Chicago (2003) at: <http://www.indiana.edu/~mpsa/proposal/qrypaperdownload.html> (last visited November 11, 2003) 

 

            Meernik, Poe, & Shaikh analyze U.S. military interventions from 1977 to 1996.  Levels of democracy and human rights are considerations in U.S. military intervention, but use of force does not result in improved conditions.  Non-democratic, somewhat economically developed countries that abuse their citizens’ rights are most likely to be targets of U.S. intervention.  They use Polity III data and Political Terror Scale scores to measure levels of democracy and respect for human rights.[41]  Past military conflict with the United States, recent crises, and relatively large armed forces are also predictors of U.S. tendency to use force.  Meernik, et al. conclude that although the historical record shows that most U.S. military interventions in their target period—much of which was during the Cold War—happened because of security concerns other than human rights, the data is nonetheless consistent with a pattern of humanitarian intervention.  There is, however, no firm evidence that human rights or democratic conditions improve significantly when the United States decides to intervene.

 

NOTES:

 

Among the initiatives supported by U.S. funds are training for members of foreign militaries either abroad or at hundreds of facilities in the United States.  Several recent studies by NGOs have catalogued and evaluated U.S. training programs for foreign militaries and police.

 

Amnesty International USA, Unmatched Power, Unmet Principles: The Human Rights Dimensions of US Training of Foreign Military and Police Forces (2002) at <http://www.amnestyusa.org/arms_trade/index.html> (last visited November 17, 2003).

 

The United States government trains 100,000 foreign police and soldiers from 150 different countries each year.  The training funds come from several different budgetary accounts that include International Military Education and Training (IMET), Joint Combined exchange Training (JCET), and police training.  Some training is done by private military contractors.  The end of the Cold War and post-September 11^th security concerns have been a catalyst for increases in the portion of security assistance that consists of military training of foreign nationals. 

 

There have been hundreds of cases in which students trained in U.S. military programs have later committed egregious human rights violations.  Since military skills are easily transferable, there should be appropriate oversight and accountability for the training the U.S. does.  Although there are several laws on the books to provide some regulation to U.S. training at the 275 U.S. military institutions and numerous foreign sites, there are still great shortcomings in the extent to which the laws have been implemented. 

 

Some courses include human rights training as part of the curriculum, but there are many programs in which students may receive no such training.  Human rights instruction is required in IMET programs and, for example, at the Western Hemispheric Institute for Security Cooperation (WHINSEC)—formerly known as the School of the Americas.

 

Amnesty International recommends more transparency and accountability for the training programs, mandatory human rights training for all trainees, better and more consistent vetting for trainees before they take part in U.S. programs, and investigations into allegations that past practices in U.S. training programs have directly contributed to human rights abuses.

 

Human Rights Watch, Dangerous Dealings:  Changes to US Military Assistance After September 11 (2002) at <http://www.hrw.org/reports/2002/usmil/> (last visited November 17, 2003).

 

In the months after September 11^th, the United States took a series of actions in its war against terrorism that reduced safeguards on U.S. security assistance to other countries.  The legal regime governing assistance changed.  For example, Congress and President Bush waived many restrictions on military assistance to India and Pakistan.  Other restrictions on sales and assistance were modified and the Defense Security Cooperation Agency (DSCA)—the organization within the Department of Defense that administers foreign military sales—took steps to expedite military assistance. 

 

Human rights advocates did succeed in increasing restrictions on Uzbekistan—which had a record of serious human rights abuses—when Senator Paul Wellstone ensured that the State Department would report on how Uzbekistan used U.S. assistance. 

 

In Afghanistan, the U.S. airdropped weapons and gave air support and ground–based targeting assistance to the Northern Alliance/United Front forces fighting the Taliban government.  The United Front has a history of violations of international humanitarian law.  In addition to the countries of Uzbekistan, Tajikistan, Pakistan, and India which received considerable security assistance in exchange for their cooperation in the war on terror, increased aid also flowed to the Philippines and Indonesia to fight domestic groups linked to al-Queda. 

 

Human Rights Watch argues that in this time of international conflict, the United States should not supply weapons and training to governments that engage in a consistent pattern of gross violations of human rights.

 

ADDITIONAL READINGS:

 

Hauke Hartmann, US Human Rights Policy under Carter and Reagan, 1977-1981, 23 Hum. Rts. Q. 402 (2001);

 

Andrew Z. Katz, Public Opinion and the Contradictions of Jimmy Carter’s Foreign Policy. 30 Pres. Studies Q. 662 (2000).  (Katz argues that implementation of President Carter’s human rights agenda was hampered by his ineffectively explaining it to the American public.) 

 

Harold Hongju Koh, A Human Rights Policy for the 21st Century, 46 St. Louis U. L.J. 293 (2002).

 

Respondents

• Derek P. Jinks, The Legalization of World Politics and the Future of Human Rights Policy, 46 St. Louis U. L.J. 357 (2002)
• Juan E. Méndez, Human Rights Policy in the Age of Terrorism, 46 St. Louis U. L.J. 377 (2002)
• Michael H. Posner, Response to Harold Koh’s Childress Lecture-A United States Human Rights Policy for the 21st Century, 46 St. Louis U. L.J. 411 (2002)

q       Argues that the war on terrorism may lead to changes in the accuracy and reliability of State Department Country reports.

• David Sloss, Hard-nosed Idealism and U.S. Human Rights Policy, 46 St. Louis U. L.J. 431 (2002)

 

Timothy J. Kepner, Torture 101:  The Case Against the United States for Atrocities Committed by School of the Americas Alumni, 19 Dick. J. Int’l L. 475 (2001).  (Kepner argues the case for U.S. responsibility for some of the atrocities committed by Latin American trainees of U.S. security assistance programs.  Victims might sue the United States under the Alien Tort Claims Act and the Federal Tort Claims Act on the grounds that the Department of Defense showed “deliberate indifference� to the consequences of the training it provided to foreign militaries.)

 

Richard L. Millett, The United State and Latin America’s Armed Forces: A Troubled Relationship, 39 J. of Interamerican Studies and World Affairs 121 (1997);

 

Russell W. Ramsey & Antonio Raimondo, Human Rights Instruction at the U.S. Army School of the Americas, 2 Hum. Rts. Rev.  92 (2001).  (School of the Americas faculty argue that human rights training at the U.S. Army School of the Americas reduced the incidence of gross human rights violations in Latin America.)

 

L. Kathleen Roberts, The United States and the World: Changing Approaches to Human Rights Diplomacy under the Bush Administration, 21 Berkeley J. Int’l L. 631 (2003).