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May 3, 2010

Groups Offer UN Council Two Distinct Views on U.S. Human Rights Record

Jim Kelly

 According to which of two reports one believes, either the United States is a serial abuser of international human rights standards or it is engaging in democratic and constitutional processes that have resulted in the U.S. making a good faith effort to meet or exceed all of its core international human rights obligations. The U.S. Human Rights Network (in the case of the first report) and the Heritage Foundation (in the case of the second report) filed the reports in connection with the first Universal Periodic Review ("UPR") of the United States' human rights record by the Geneva-based U.N. Human Rights Council that will take place later this year. If history is any guide, the Council will use the UPR to "name and shame" the United States for its alleged human rights shortcomings to the detriment of its international reputation and approval of its international critics.

The Human Rights Council (the "Council") is an inter-governmental body within the UN system that is "responsible for strengthening the promotion and protection of human rights around the globe." The Council, composed of 47 Member States, including human rights "stalwarts" China and Saudi Arabia, uses the UPR to assess the human rights records of the 192 U.N. Member States. Each Member State must undergo a review once every four years, during which time the Council's UPR Working Group evaluates that State's compliance with international human rights mechanisms, including the U.N. Charter, the Universal Declaration of Human Rights, and individual international human rights treaties that the State has ratified.

When reviewing a State's human rights record, the UPR Working Group considers not only the national reports submitted by the State under review, but also reports from various U.N. bodies and other human rights "stakeholders," including non-governmental organizations ("NGO's") and national human rights institutions. One such stakeholder, the aforementioned U.S. Human Rights Network (the "Network"), recently submitted a Summary Report (the "Report") on the human rights record of the United States for consideration during the United States' first UPR, scheduled to take place this December during the 9th Session of the UPR Working Group. The Network is an umbrella organization of high profile "human rights groups," including Amnesty International, the ACLU, and the United Food and Commercial Workers union that, according to the Network's website, aims to:

challenge the belief that the United States is inherently superior to other countries of the world, and that neither the US government nor the US rights movements have anything to gain from the domestic application of human rights. Network members believe that the US government should no longer be allowed to shield itself from accountability to human rights norms and that the US civil, women's, worker, immigrant, LGBTQ, prisoner and other rights movements that stand to benefit, perhaps now more than ever, from an end to US impunity in this regard (emphasis added).

In an effort to hold the United States accountable for its so-called failure to "compl[y] with universal human rights standards," the Network, through its UPR Project, "seeks to coordinate and facilitate U.S. civil society efforts to inform and influence the [UPR] review process." The Network aims to influence the outcome of the UPR Working Group session in December by painting a picture of America in its Report that most Americans would not recognize. Despite the United States' independent and readily accessible judiciary, free and flourishing civil society, Constitutional guarantees of freedom and equal protection, and system of representative government, the Network asserts the following in its Report:

* Discrimination permeates all aspects of life in the U.S., and extends to all communities of color. The U.S. response to Hurricanes Katrina and Rita bring into sharp focus the ways structural racism impacts all aspects of human security, from housing, food, employment, education, health, and environmental justice.

* [U.S. Society] is a highly stratified society in which, for example, persons of color continue to live in isolated, segregated communities, and have been disproportionately affected by the current mortgage and foreclosure crisis.

* Gross disparities in the U.S. educational system are the direct result of inequalities and discrimination in housing, compounded by judicial restrictions on affirmative action policies aimed at redressing structural racism and historical discrimination, lack of programming for English Language Learners, excessive and discriminatory school discipline, a persistent achievement gap, and use of restraints and seclusion in the school system as a means for -intervention for children with disabilities.

* The effects of excessive and discriminatory school discipline policies follow persons of color and sometimes directly result in discriminatory treatment in the criminal justice system which incarcerates African Americans and Latinos at rates far greater than Whites, due partly to ongoing racial profiling and discriminatory sentencing policies.

* Discrimination and segregation in housing and education, combined with discrimination in our criminal justice system, all contribute to inequalities in employment and discrimination in the enjoyment of the right to decent work.

* The U.S. continues to fall short of its human rights obligations in the administration of justice.

* Racial profiling persists in the U.S. where policies and programs that allow for, or incentivize the use of racial profiling in criminal, immigration, and national security law enforcement proliferate.

* Dozens of political prisoners who were victimized by the U.S. government's political repression against African-Americans, Puerto Ricans, and Native American communities continue to languish in prison and endure solitary confinement, poor medical health care, various other forms of abuse, and perfunctory parole hearings resulting in routine denial of release.

* The U.S. has not yet fully recognized economic and social human rights, including the rights to social security and adequate standards of living, nor does it protect and fulfill these rights. This human rights denial negatively impacts the entire U.S. population resulting in high income inequality and poverty rates, and lack of adequate social safety nets.

* In the U.S. the human right to social security, which ensures the basic resources necessary for a life with dignity, is not sufficiently protected. Social policies assume that a basic income can be generated from work, and fail to provide adequate supports to meet fundamental needs and prevent poverty.

* The U.S. is the only high-income country without a universal health care system, even after recent reform efforts. Instead the U.S. has a highly commercialized, market-based system that relies predominantly on for-profit, private health insurance companies that are then publicly subsidized.

* Women who seek reproductive healthcare services including abortion are further limited by state and federal laws obstructing access, discriminatory restrictions on funding and government failure to curb extreme private conduct designed to intimidate women and health care providers.

* While the U.S. dedicates significant resources to supporting homeownership and private development, these investments have hampered rather than furthered the human rights obligation of meeting the housing needs of all. Government policies have created the current housing crisis - which precipitated the 2008 global financial crisis - through deregulating mortgage lending, disinvesting in public housing and other affordable housing programs.

* The U.S. education system is highly segregated, stratified, grounded in a competition-based achievement model that is increasingly pursued through privatization - such as the creation of publicly funded but privately run charter schools - while public schools in low-income communities and communities of color suffer from underfunding, overcrowding, and forced closures, resulting in gross disparities in educational opportunities for students of color.

* The U.S. immigration system, while generous in many ways, is riddled with systemic failures to protect human rights. Some violations result from the statutory framework itself, while others are a matter of administrative policy or agency practice. The massive expansion of the immigration enforcement system has tremendous implications on the protection of the rights of non-citizens.

The Network's Report will likely find a captive audience in several members of the Working Group who share the Network's negative opinion of the United States. The Report will undoubtedly serve as "proof" of the United States' alleged human rights shortcomings, enabling those members to falsely label the country as a serial human rights violator in the company of North Korea, Cuba, China, and Saudi Arabia.

To provide some semblance of balance in the UPR process, the Heritage Foundation ("Heritage"), a Washington, D.C.-based conservative public policy organization, also submitted a Report to the UPR Working Group on the human rights situation in the United States. According to the Report, the United States is in full compliance with its obligations under the human right treaties it has ratified, including the International Covenant on Civil and Political Rights; the Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment; the International Convention on the Elimination of All Forms of Racial Discrimination; and the two Optional Protocols to the Convention on the Rights of the Child.

Moreover, "the legal protections provided to women and children in the United States meet or exceed the provisions of the U.N. Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women though the United States is not a party to those conventions" (emphasis added).

Regardless, as Heritage asserts, since their enforceability depends entirely on the unique political, social, and legal systems of any particular country, international treaties, norms, and practices never offer the best protections for human rights. Rather, it is "the U.S. Constitution and the panoply of U.S. laws and institutions protecting human rights and fundamental freedoms [that] represent best practices that all States and stakeholders should emulate." To illustrate, while some would claim that social welfare programs like Social Security and Medicare are basic human rights, they are referred to in the United States as simply benefits. Heritage argues,

[t]his is entirely appropriate, as such "rights" are more properly viewed as benefits conferred by law and therefore subject to modification or elimination. Such programs should be considered secondary to the civil and political rights that are vital to an accountable government because they cannot be lawfully withdrawn without threatening the fundamental freedoms of the citizenry. Ignoring the difference defies the reality that without the institutional guarantees provided by civil and political rights-an independent judiciary, the rule of law, and representative government-all other "rights" are essentially unenforceable.

Indeed, many nations boast that civil and political rights are enshrined in their constitutions and laws and yet routinely and flagrantly violate those rights. Other nations (usually nations without a strong tradition of protecting civil and political rights) claim that they provide their people with universal social programs and welfare. Without an independent judiciary and the ability to enforce those protections, however, such claims must be viewed with skepticism. A population may possess some ethereal "right to health," but that right is likely unattainable without an accountable government and accessible judiciary.

Although, as the Heritage Report concludes, the United States is in full compliance with its international human rights treaty obligations and possesses an accountable government and an independent, accessible judiciary, it remains to be seen what picture of America will be drawn by the UPR Working Group in December. Unfortunately, the likely answer is that several members of the Working Group will purposely ignore these simple truths and wholly accept the negative human rights view of America represented by the U.S. Human Rights Network. If, however, the Human Rights Council and its UPR Working Group were truly concerned about promoting human rights worldwide, they would be wise to pay more than lip service to reports from the Heritage Foundation and similar organizations during the upcoming session. For only when other countries have legal and political systems in place like the United States will human rights ever come close to becoming universally protected.

Jim Kelly is the President of Solidarity Center for Law and Justice, P.C., a public interest civil and human rights law firm based in Atlanta, Georgia. The opinions expressed herein are his own.



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