Tag: International Covenant on Civil and Political Rights

U.S. Restrictions on Felon Voting Do Not Comply with International Law

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International law regarding voting is found in the International Covenant on Civil and Political Rights (ICCPR or Covenant) that was approved and adopted by the United Nations General Assembly on December 16, 1966. The drafting of the treaty was the work of the U.N. Commission on Human Rights, in which the U.S. participated.[1]

The Covenant’s Terms and Parties

This Covenant establishes an international minimum standard of governmental conduct for rights of self-determination; legal redress; equality; life; liberty; freedom of movement; fair, public and speedy trial of criminal charges; privacy; freedom of expression, thought, conscience and religion; peaceful assembly; freedom of association; family; and participation in public life. The Covenant forbids “cruel, inhuman or degrading treatment or punishment;” slavery; arbitrary arrest; double jeopardy; and imprisonment for debt.

Article 25 (b) of this treaty states, “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [race, colour [sic], sex, language, religion, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions: To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.” (Emphasis added.)

On June 8, 1992, the U.S. finally became a party to the treaty, nearly 26 years after the Covenant had been approved by the U.N. The U.S. accession to the treaty was subject to five reservations, five understandings, four declarations and one proviso. Potentially relevant to the issue of voting rights for felons are the U.S. understandings that (1) distinctions based on . . . other status [felon?] are permissible if rationally related to a legitimate governmental objective; . . . (3) certain practices concerning accused and convicted individuals were preserved; . . . and (5) the obligation of the U.S. federal government to enforce the Covenant in the federal system were limited.”[2]

Earlier (on March 23, 1976), the Covenant had gone into force, in accordance with its Article 49(1), after 35 states had ratified or acceded to the treaty. Now there are 168 states parties to the Covenant.

The Covenant’s Human Rights Committee

UN Human Rts

Article 28 of this treaty establishes a Human Rights Committee that is empowered under Article 40 to receive, analyze and comment on periodic reports from parties to the treaty regarding their compliance with its provisions, and the Committee may also issue authoritative “general comments” about the treaty.

The Committee’s General Comment No. 25 Regarding Voting Rights

On August 27, 1996, the Committee issued its General Comment No. 25: “The right to participate in public affairs, voting rights and the right of equal access to public service.”

It stated, in part, “The right to vote at elections and referenda must be established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote. It is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements. Party membership should not be a condition of eligibility to vote, nor a ground of disqualification.” (Para. 10) (Emphasis added.)

The Comment added, “In their reports, States parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote. The grounds for such deprivation should be objective and reasonable. If conviction for an offence [sic] is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence [sic] and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.” (Para. 14)

Proceedings Regarding the Most Recent U.S. Report to the Committee [3]

  1. The U.S. Report to the Committee.

The U.S. has submitted four periodic reports to the Committee, most recently on December 30, 2011, which stated the following with respect to voting rights:

  • “Criminal conviction and mental incompetence. The Fourteenth Amendment to the United States Constitution explicitly recognizes the right of states to bar an individual from voting ‘for participation in rebellion, or other crime.’ Accordingly, most states deny voting rights to persons who have been convicted of certain serious crimes. The standards and procedures for criminal disenfranchisement vary from state to state. In most states, this inability to vote is terminated by the end of a term of incarceration or by the granting of pardon or restoration of rights.” (Para. 457) (Emphasis added.)
  • “Felony disenfranchisement is a matter of continuing debate in the states of the United States. It has been criticized as weakening our democracy by depriving citizens of the vote, and also for its disproportionate affects on racial minorities. As noted in the Second and Third Periodic Report, in August 2001 the National Commission on Federal Election Reform, chaired by former Presidents Carter and Ford, recommended that all states restore voting rights to citizens who have fully served their sentences. At the time of the previous report, a number of states had moved to reduce the scope of felony disenfranchisement or otherwise to facilitate the recovery of voting rights for those who can regain them.” (Para. 458) (Emphasis added.)
  • “Since the submission of the Second and Third Periodic Report in 2005, modification of state laws and procedures has continued. For example, in 2005, the Governor of Iowa issued an executive order eliminating lifetime disenfranchisement for persons convicted of an “infamous crime” and making restoration of voting rights automatic for persons completing their sentences. This order, however, was revoked by a successor Governor in 2011. Also in 2005, the legislature in Nebraska repealed its lifetime ban on voting for all felons and replaced it with a 2-year post-sentence ban. In 2006, Rhode Island voters approved a referendum to amend the state’s constitution to restore voting rights to persons currently serving a sentence of probation or parole. In 2006, the Tennessee legislature amended its complex restoration system to provide a more straightforward procedure under which all persons convicted of felonies (except electoral or serious violence offenses) are now eligible to apply for a ‘certificate of restoration’ upon completion of their sentences. In 2007, the Maryland legislature repealed all provisions of the state’s lifetime voting ban and instituted an automatic restoration policy for all persons upon completion of a sentence.” (Para. 459)
  • “In 2009, the Washington state legislature enacted the Washington Voting Rights Registration Act, which eliminates the requirement that persons who have completed their felony sentences pay all fees, fines and restitution before being allowed to vote. Florida, however, toughened its laws in March 2011, banning automatic restoration of voting rights for all convicted felons. Currently 48 states restrict voting by persons convicted of felonies in some manner; further information on felony disenfranchisement can be found in the Common Core Document.” (Para. 459)
  • “In July 2009, a bill entitled the Democracy Restoration Act of 2009 was introduced in both the Senate (S. 1516) and the House of Representatives (H.R. 3335). This bill would establish uniform standards restoring voting rights in elections for federal office to Americans who are no longer incarcerated but continue to be denied their ability to participate in such elections. A hearing on H.R. 3335 was held in the House of Representatives on March 16, 2010, but the bills did not proceed further. This legislation has been reintroduced in the House in the 112th Congress (H.R. 2212).” (Para. 460)[4]
  1. The Committee’s List of Issues for the U.S.

On April 29, 2013, the Committee issued its “List of issues” for response by the U.S. Its paragraph 26(a) stated, “Please provide information on: (a) The rationale for prohibiting persons with felony convictions from voting in federal elections once they have completed their sentence. Please provide information on steps taken to ensure that states restore voting rights to citizens who have fully served their sentences and those who have been released on parole. Please also provide information on the extent that the regulations relating to deprivation of votes for felony conviction impact on the rights of minority groups.” (Emphasis added.)

  1. U.S. Replies to the Committee’s List of Issues

On July 5, 2013, the U.S. submitted its replies to the Committee’s list of issues. In paragraph 128, the U.S. stated, “The U.S. Constitution generally provides that governments of the individual states, not the U.S. Congress, determine who is eligible to vote in their state. Congress has the power to regulate elections for federal offices and has constitutional authority to eradicate discrimination in voting through the Fourteenth and Fifteenth Amendments. According to the Brennan Center of NYU Law School, 48 states restrict voting by persons convicted of felony offenses in some manner, although the majority of these states provide for restoration of voting rights to felons who have been released from prison and/or are no longer on parole or probation. A few states prohibit felons from voting for life. Legal challenges alleging that state felon disenfranchisement laws violate either the U.S. Constitution’s non-discrimination principle or other federal voting rights statutes have generally not succeeded absent proof of racially discriminatory purpose.” (Emphasis added.)

  1. U.S. Attorney General’s Statement About Felony Disenfranchisement
Attorney General Eric Holder
Attorney General       Eric Holder

Outside the context of the Committee’s review of the U.S. report, on February 11, 2014, U.S. Attorney General Eric Holder made extensive and powerful comments regarding felony disenfranchisement in his speech, “Criminal Justice Reform,” at Georgetown University Law Center. He said the following:

  • “[W]e’ve seen that maintaining family connections, developing job skills, and fostering community engagement can reduce the likelihood of re-arrest. And we know that restoring basic rights – and encouraging inclusion in all aspects of society – increases the likelihood of successful reintegration.  We’ve taken significant steps forward in improving reentry policies and addressing the unintended collateral consequences of certain convictions.”
  • “Yet formerly incarcerated people continue to face significant obstacles.  They are frequently deprived of opportunities they need to rebuild their lives. And in far too many places, their rights – including the single most basic right of American citizenship – the right to vote – are either abridged or denied.”
  • “As the Leadership Conference Education Fund articulated very clearly in . . . [its] recent report, ‘there is no rational reason to take away someone’s voting rights for life just because they’ve committed a crime, especially after they’ve completed their sentence and made amends.’  On the contrary: there is evidence to suggest that former prisoners whose voting rights are restored are significantly less likely to return to the criminal justice system.  As . . . [this] report further notes, a study recently conducted by a parole commission in Florida found that, while the overall three-year recidivism rate stood at roughly 33 percent, the rate among those who were re-enfranchised after they’d served their time was just a third of that.”
  • “Unfortunately, the [Florida] re-enfranchisement policy that contributed to this stunning result has been inexplicably and unwisely rolled back since that study was completed.  And, in other states, officials have raised hurdles to be faced by those with past convictions seeking to regain their access to the ballot box.  And that’s why I believe that . . . [it] is time to fundamentally reconsider laws that permanently disenfranchise people who are no longer under federal or state supervision.”
  • “These restrictions are not only unnecessary and unjust, they are also counterproductive.  By perpetuating the stigma and isolation imposed on formerly incarcerated individuals, these laws increase the likelihood they will commit future crimes.  They undermine the reentry process and defy the principles – of accountability and rehabilitation – that guide our criminal justice policies. . . . At worst, these laws, with their disparate impact on minority communities, echo policies enacted during a deeply troubled period in America’s past – a time of post-Civil War repression. And they have their roots in centuries-old conceptions of justice that were too often based on exclusion, animus, and fear.”
  • “The history of felony disenfranchisement dates to a time when these policies were employed not to improve public safety, but purely as punitive measures – intended to stigmatize, shame, and shut out a person who had been found guilty of a crime.  Over the course of many decades – court by court, state by state – Americans broadly rejected the colonial-era notion that the commission of a crime should result in lifelong exclusion from society.”
  • “After Reconstruction, many Southern states enacted disenfranchisement schemes to specifically target African Americans and diminish the electoral strength of newly-freed populations.  The resulting system of unequal enforcement – and discriminatory application of the law – led to a situation, in 1890, where ninety percent of the Southern prison population was black.  And those swept up in this system too often had their rights rescinded, their dignity diminished, and the full measure of their citizenship revoked for the rest of their lives.  They could not vote.”
  • “Yet – despite this remarkable, once-unimaginable [civil rights] progress – the vestiges, and the direct effects, of outdated practices remain all too real. In many states, felony disenfranchisement laws are still on the books.  And the current scope of these policies is not only too significant to ignore – it is also too unjust to tolerate.”
  • “Across this country today, an estimated 5.8 million Americans – 5.8 million of our fellow citizens – are prohibited from voting because of current or previous felony convictions.  That’s more than the individual populations of 31 U.S. states.  And although well over a century has passed since post-Reconstruction states used these measures to strip African Americans of their most fundamental rights, the impact of felony disenfranchisement on modern communities of color remains both disproportionate and unacceptable.”
  • “Throughout America, 2.2 million black citizens – or nearly one in 13 African-American adults – are banned from voting because of these laws.  In three states – Florida, Kentucky, and Virginia – that ratio climbs to one in five. These individuals and many others – of all races, backgrounds, and walks of life – are routinely denied the chance to participate in the most fundamental and important act of self-governance.  They are prevented from exercising an essential right.  And they are locked out from achieving complete rehabilitation and reentry – even after they’ve served the time, and paid the fines, that they owe.”
  • “Fortunately . . . in recent years we have begun to see a trend in the right direction.  Since 1997, a total of 23 states – including Nebraska, Nevada, Texas, and Washington State – have enacted meaningful reforms.  In Virginia, just last year, former Governor McDonnell adopted a policy that began to automatically restore the voting rights of former prisoners with non-violent felony convictions.”
  • “These are positive developments.  But many of these changes are incremental in nature.  They stop well short of confronting this problem head-on.  And although we can be encouraged by the promising indications we’ve seen, a great deal of work remains to be done.  Given what is at stake, the time for incrementalism is clearly over.”
  • “Eleven states continue to restrict voting rights, to varying degrees, even after a person has served his or her prison sentence and is no longer on probation or parole – including the State of Florida, where approximately 10 percent of the entire population is disenfranchised as a result.  In Mississippi, roughly 8 percent of the population cannot vote because of past involvement with the criminal justice system. In Iowa, action by the governor in 2011 caused the state to move from automatic restoration of rights – following the completion of a criminal sentence – to an arduous process that requires direct intervention by the governor himself in every individual case.  It’s no surprise that, two years after this change – of the 8,000 people who had completed their sentences during that governor’s tenure – voting rights had been restored to fewer than 12.”
  • “That’s moving backwards – not forward. It is unwise, it is unjust, and it is not in keeping with our democratic values.  These laws deserve to be not only reconsidered, but repealed.  And so today, I call upon state leaders and other elected officials across the country to pass clear and consistent reforms to restore the voting rights of all who have served their terms in prison or jail, completed their parole or probation, and paid their fines.”
  • “And I call upon the American people – who overwhelmingly oppose felony disenfranchisement – to join us in bringing about the end of misguided policies that unjustly restrict what’s been called the ‘most basic right’ of American citizenship.”
  • The “inconsistent patchwork of laws affecting felony disenfranchisement varies so widely between states – and, in some places, between cities and counties – that even those who administer the laws are sometimes unfamiliar with how to apply them. The New York Times noted in 2012 that this kind of confusion means that many who are legally allowed to vote erroneously believe that their rights are restricted.  And too often, those who do understand their rights are wrongfully turned away.”
  • “[P]ermanent exclusion from the civic community does not advance any objective of our criminal justice system.  It has never been shown to prevent new crimes or deter future misconduct.   And there’s no indication that those who have completed their sentences are more likely to commit electoral crimes of any type – or even to vote against pro-law enforcement candidates.
  • “What is clear – and abundantly so – is that these laws sever a formerly incarcerated person’s most direct link to civic participation.  They cause further alienation and disillusionment between these individuals and the communities . . . . And particularly at a time when our prisons are overflowing – and many who are serving sentences for nonviolent drug crimes find themselves trapped in a vicious cycle of poverty and incarceration – it is counterproductive to exclude these individuals from the voting franchise once their involvement with the corrections system is at an end.  It is contrary to the goals that bring us together today.”
  • “Whenever we tell citizens who have paid their debts and rejoined their communities that they are not entitled to take part in the democratic process, we fall short of the bedrock promise – of equal opportunity and equal justice – that has always served as the foundation of our legal system.  So it’s time to renew our commitment – here and now – to the notion that the free exercise of our fundamental rights should never be subject to politics, or geography, or the lingering effects of flawed and unjust policies.”
  1. Committee’s Hearings

At a Committee hearing on March 14, 2014, an U.S. representative (Roy Austin, Jr., Deputy Assistant Attorney General, Civil Rights Division, Department of Justice) said, “Persons convicted of crimes were not necessarily informed before sentencing that they would lose their right to vote.“

Austin also stated later at that hearing, “There was no national guarantee ensuring that defendants and prisoners were made aware of the loss of the right to vote. However, in practice, whenever defendants took a plea or were sentenced, they were informed of the fact that they would lose certain constitutional rights. Furthermore, the American Bar Association had launched a website entitled the National Inventory on the Collateral Consequences of Conviction as part of an effort to help defence [sic] lawyers fully inform their clients of, inter alia, any rights they would lose as the result of a conviction for a crime.”

  1. Committee’s Concluding Observations

After reviewing all of the records regarding the U.S. report,[5] the Committee on March 26, 2014, adopted its Concluding Observations. Here is what it said in paragraph 24 about U.S. voting rights.

“While noting with satisfaction the statement by the Attorney General on 11 February 2014, calling for a reform of state laws on felony disenfranchisement, the Committee reiterates its concern about the persistence of state-level felon disenfranchisement laws, its disproportionate impact on minorities and the lengthy and cumbersome voting restoration procedures in states. The Committee is further concerned that voter identification and other recently introduced eligibility requirements may impose excessive burdens on voters and result in de facto disenfranchisement of large numbers of voters, including members of minority groups. Finally, the Committee reiterates its concern that residents of the District of Columbia (D.C.) are denied the right to vote for and elect voting representatives to the United States Senate and House of Representatives (arts. 2, 10, 25 and 26)”

“The State party should ensure that all states reinstate voting rights to felons who have fully served their sentences; provide inmates with information about their voting restoration options; remove or streamline lengthy and cumbersome voting restoration procedures; as well as review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence. The State party should also take all necessary measures to ensure that voter identification requirements and the new eligibility requirements do not impose excessive burdens on voters and result in de facto disenfranchisement. The State party should also provide for the full voting rights of residents of Washington, D.C.” (Emphasis in original.)

This very polite language is the way the Committee was saying the U.S. was not complying with the Convention’s provisions regarding voting.[6]

Conclusion

The U.S. problem of felon disenfranchisement still persists. The previously mentioned proposed federal Democracy Restoration Act has not been adopted. Only two states (Maine and Vermont) do not have any restrictions on voting by citizens convicted of a felony. Thirteen states and the District of Columbia restore voting after completion of the term of incarceration; four states, after incarceration and parole; 20 states, after incarceration and parole and probation. The other 11 states permanently ban voting by felons under certain conditions. In addition 10 states restrict some people convicted of misdemeanors from voting.

Therefore, the  U.S. is not complying with the Convention’s provisions regarding voting.

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[1] Weissbrodt, Ni Aoláin, Fitzpatrick & Newman, International Human Rights: Law, Policy, and Process at 141-43 (4th ed. LEXIS-NEXIS 2009). The Covenant is baed upon the Universal Declaration of Human Rights of 1948, which states in Article 21(3), “The will of the people shall be the basis of the authority of government, this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage . . . .”

[2] The long, convoluted history of the U.S. accession to the Covenant is discussed in a prior blog post.

[3] The most recent Committee’s consideration of the U.S. human rights record has been discussed in prior posts about the Committee’s hearings, its concluding observations and felon voting. The actual U.S. report, the list of issues, the U.S. replies to that list of issues, a summary of the hearings, the submissions from Civil Society Organizations and the concluding observations are available on the Committee’s website.

[4] The Democracy Restoration Act also was introduced in the Senate (S. 2017) in the 112th Congress, but it died in committees in both chambers.

[5] The record included several hundred submissions from Civil Society Organizations. Felony disenfranchisement was addressed by at least one such submission: the one from the American Civil Liberties Union, the ACLU of Florida, the Lawyers’ Committee for Civil Rights under Law, the Leadership Conference, the NAACP, the NAACP Legal Defense Fund and the Sentencing Project. It argued that U.S. felony disenfranchisement laws had a disproportionate impact on minorities, and it reviewed the history and rationale of such laws, the increasing international isolation of the U.S. on such laws, the terms of such laws and the legal challenges to such laws. This submission also criticized the U.S. reply to this issue on the Committee’s list of issues and suggested recommendations for the Committee to make to the U.S.

[6] Another treaty to which the U.S. is not a party–the Protocol 1 to the European Convention on the Protection of Human Rights and Fundamental Freedoms–has been interpreted to ban national laws that “applied automatically to convicted prisoners in detention, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence [sic] and their individual circumstances.” This was the decision in 2005 by the European Court of Human Rights, which said “the severe measure of disenfranchisement was not to be resorted to lightly and the principle of proportionality required a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. “ (Hirst v. United Kingdom, 2005-IX Reports of Judgments & Decisions 195 (Eur. Ct. Hum. Rts. 2005),}

 

 

U.S. Citizens Convicted of Felonies Should Be Allowed To Vote

As mentioned in a prior post, the U.N. Human Rights Committee recently raised the issue of whether convicted felons should be entitled to vote in U.S. elections. As a result, the Committee recommended certain changes in those laws that will be discussed below.

First though we will look at U.S. laws on the subject before examining the U.N. Committee’s recommendations and ongoing efforts in the U.S. to reform these laws.

U.S. Laws on Voting by Felons

With certain exceptions, the determination of eligibility to vote in federal, state and local elections in the U.S. is left to the laws of the states.[1] Here is a summary of those laws:[2]

Number of States   Names of States and District of Colombia Felon Voting Status
2 Maine & Vermont Eligible to vote in or out of prison
14 District Columbia, Hawaii, Illinois, Indiana, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island & Utah Eligible to vote after term of incarceration
4 California, Colorado, Connecticut & New York Eligible to vote after term of incarceration + parole
20 Alaska, Arkansas, Georgia, Idaho, Kansas, Louisiana, Maryland, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, Washington, West Virginia & Wisconsin Eligible to vote after term of incarceration + parole + probation
11 Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Nevada, Tennessee, Virginia & Wyoming Not eligible unless various conditions are met

Since 1996 many states have passed laws to expand felon voting rights and to simplify the process for restoration of such rights. There, however, are a few outliers that have imposed greater restrictions; they include the following:

  • In 2011 the Florida Board of Executive Clemency adopted a new policy requiring all ex-felons to wait five and seven years before applying to regain voting rights.
  • In 2011 the Iowa governor revoked an automatic restoration of voting rights for all ex-felons and instead imposed a requirement for ex-felons to apply to regain such rights.
  • In 2012, South Carolina mandated that felons on probation could not have such restoration.

The bipartisan National Association of State Legislatures (NASL) points out several problems administering these laws that make it more difficult for former felons to vote:

  • “Even in states where ex-offenders automatically regain the right to vote upon completion of their sentence, the process of re-registering to vote often is difficult. One reason is the complexity of the laws and processes surrounding disenfranchisement. In some cases, it is difficult to determine whose rights can be restored. This can vary in some states according to the date of the crime, the conviction, or the release from prison, or the nature of the crime. The complex restoration process also can be daunting. It often involves lengthy paperwork, burdensome documentation, and the involvement and coordination of several state agencies.”
  • NASL adds that a “second barrier to restoration of voting rights for ex-offenders is the often inconsistent communication among agencies. The methods of communicating the loss and restoration of voting rights among courts, corrections and elections officials are not always reliable, timely or consistent. This inconsistency can result in uneven application of the law, even when the laws are clear.”
  • Another barrier, according to NASL, “is lack of information. Ex-offenders sometimes are not aware that they regain their voting rights automatically upon completion of their sentence. They go through life believing they cannot vote when, in fact, they can. In other cases, they are not informed of the process for regaining their rights or offered assistance in doing so. As long as they remain ignorant of the necessary steps, ex-offenders cannot begin the process of regaining voting rights.”
  • The “final obstacle” to former felons voting, says NASL, “is under-funding of parole boards in some states where offenders must apply to have their rights restored. A massive backlog of applications can exist because the agencies do not have adequate staff or resources to process them in a timely manner.”

As a result of these laws and their administration, an estimated 5,800,000 U.S. citizens were ineligible to vote in the 2008 elections. This included 1,400,000 African-American men, more than 676,000 women and 2,100,000 ex-felons who had completed their sentences. Another way of looking at this disenfranchisement, 7.7% of all African-American citizens were ineligible to vote in 2008.

All of this is happening with 2.2 million U.S. citizens in prison or jail in 2012, a larger share of the total population than in any other country and about five times greater than the average for other industrialized nations.

The U.N. Committee’s Recommendations

Article 25 of the International Covenant on Civil and Political Rights (ICCPR) provides, in part, that “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status]and without unreasonable restrictions: . . . (b) To vote . . . at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors. . . .”

As previously mentioned, this treaty created the U.N. Human Rights Committee and empowered it to conduct periodic reviews of compliance with that treaty by its States Parties, one of which is the United States.

Therefore, U.S. compliance with Article 25 regarding voting was one of the topics covered by the recent Committee’s report of its review of U.S. compliance with the ICCPR.

The Committee first reiterated “its concern about the persistence of state-level felon disenfranchisement laws, its disproportionate impact on minorities and the lengthy and cumbersome voting restoration procedures in states.”

The Committee then recommended that the U.S. should “ensure that all states reinstate voting rights to felons who have fully served their sentences, provide inmates with information about their voting restoration options and remove or streamline lengthy and cumbersome state voting restoration procedures, as well as review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence.”

U.S. Advocates for Expansion of Felon Voting Rights

A number of U.S. NGOs are advocates for expanding voting rights for felons. They include (a) the American Civil Liberties Union; (b) the Leadership Conference on Civil and Human Rights, a coalition of over 200 national organizations promoting and protecting U.S. civil and human rights toward the goal of a more open and just society;[3] (c) the Sentencing Project, which works for a fair and effective U.S. criminal justice system by promoting reforms in sentencing policy, addressing unjust racial disparities and practices, and advocating for alternatives to incarceration; (d) the Brennan Center for Justice at NYU School of Law;[4] and (e) the National Association of Criminal Defense Lawyers.

In addition, several prominent public officials have supported such reforms.

Earlier this year in a speech about criminal justice reform at Georgetown University, U.S. Attorney General Eric Holder made extensive remarks about the need for reforming our laws regarding felon voting.[5]

The Attorney General emphasized the need to do all we can to encourage the need for successful reintegration of individuals who had been convicted of felonies, including the restoration of the “single most basic right of American citizenship—the right to vote.” Otherwise such disenfranchisement perpetuates “the stigma and isolation” of former felons and increases “the likelihood they will commit future crimes.”

Moreover, said Holder, such disenfranchisement has a “disparate impact on minority communities.” Today roughly 2,200,000 black citizens (or 1 in 13) are excluding from voting for this reason; in Florida, Kentucky and Virginia that ratio is 1 in 5. For Florida that represents 10% of the state’s potential electorate; in Mississippi, 8%.

Holder added that Iowa recently abolished automatic restoration of voting rights after completion of a criminal sentence in favor of an innocuous-sounding requirement to apply to the governor for such relief. However, according to Holder, after two years of the new policy, fewer than 12 such applications had been approved out of 8,000.

Republican Senator Rand Paul of Kentucky repeatedly has called for expansion of felon voting rights. In February 2014 he testified before a Kentucky Senate committee in support of restoring the right to vote for many non-violent felons in his state. Paul said that restoring voting rights for those who have repaid their debt to society was simply the right thing to do. In other words, “One mistake in life shouldn’t permanently block a citizen’s access to the ballot box [because the] right to vote is among the most important rights we have. It is something for which people in other countries have lost their lives.”

Following Senator Paul’s testimony, the committee and then the full Senate passed a proposed constitutional amendment that would restore the right to vote in Kentucky for many non-violent felons who have completed their sentences. If the Kentucky House approves the same measure and the two houses agree on a compromise bill, it will be on the ballot for voters to approve in November.[6]

In Virginia, former Governor Robert F. McDonnell (Republican) enacted a policy in 2012 that allowed those with non-violent felony convictions to have their voting rights automatically restored. In addition, McDonnell and his Democratic successor, Terry McAuliffe, have supported a state constitutional amendment that would restore voting rights to ex-felons automatically upon the completion of their sentences.

Conclusion

This problem of obstacles to felons’ voting was brought home to me when I went door-knocking for the re-election of President Obama in 2012 and encountered several people who said they were not eligible to vote. They did not say why, but I surmised that they had been convicted of felonies and had not yet completed their parole or probation. I felt then (and now) that they were entitled as U.S. citizens to have their voices heard in the election.

Given the high levels of incarceration in the U.S. and the deplorable conditions in most of our prisons, these potential voters should provide a way to increase the importance of this public policy issue and to be a force for improving those conditions.

Another benefit of such reforms should be the elimination of the supposed “need” to have restrictive state voter “ID” laws to eliminate or reduce purported voter fraud. A Wisconsin voter “ID” law on April 29th was stricken down as unconstitutional by a federal district court.

I hope that all U.S. citizens become concerned about the disenfranchisement of our fellow citizens who have been convicted of felonies and become advocates for changing the state laws that cause this deprivation.

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[1] The U.S Constitution provides that “Congress may at any time by Law make or alter such Regulations [set by the States for the Times, Places and Manner of holding Elections for Senators and Representatives] except [not] as to the Places of chusing Senators” (Art. I, sec. 4). The Fourteenth Amendment says,”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (14th Amendment.) (The 14th Amendment also implicitly endorses a state’s denial or abridgment of a U.S. citizen’s right to vote because of participation in “rebellion, or other crime” in connection with allocation of seats in the House of Representatives.) The Constitution further provides, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude [slavery]” (15th Amendment) or “sex” (19th Amendment) or “age [18 years of age or older]” (26th Amendment). In addition, the federal Voting Rights Acts of 1965 and of 2006 imposed certain measures to implement the 15th Amendment to the Constitution, and last year the U.S. Supreme Court invalidated an important part of the latter statute.

[2] Greater details on these laws are available on a ProCon website, on the Brennan Center website and on a map prepared by the American Civil Liberties Union.

[3] The Leadership Conference submitted its report on felon voting to the U.N. Human Rights Committee in connection with the latter’s review of U.S. human rights.

[4] The Brennan Center along with ACLU is supporting the proposed federal Democracy Restoration Act that would restore voting rights to ex-felons who had completed their incarceration. It was introduced in 2014 by Representative John Conyers, Jr. (H.R. 4459) and Senator Ben Cardin (S.2235).

[5] The U.N. Human Rights Committee’s concluding observations noted its “satisfaction” with Attorney General Holder’s speech, which also was applauded  by a New York Times editorial.

[6] On March 5th the Kentucky House rejected the Senate bill because it did not go far enough in expanding the voting rights, and by the end of March, legislators did not think a compromise was likely this session of the legislature. On April 16th, however, the House passed a bill that will prompt a conference committee to try to work out a compromise that both houses could accept.

U.N. Human Rights Committee’s Concluding Observations on U.S. Human Rights

As discussed in a prior post, in March 2014, the United Nations’ Human Rights Committee (the Committee) issued a negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights. That prior post reviewed the background of the ICCPR and the events leading up to the Committee’s evaluation. Another post looked at the Committee’s recent hearings regarding U.S. human rights.

Now we examine the Committee’s report of concluding observations that resulted from the hearings and all the evidence on that subject.

The Committee’s Concluding Observations[1]

After considering the written materials and the testimony and remarks at the hearing, on March 26, 2014, the Committee adopted its 11-page report (Concluding observations on the fourth report of the United States of America). Given the hostile nature of the Committee members’ comments during the hearing, it is not surprising that the report was very critical of the U.S.[2]

With respect to various topics, the Committee expressed its regrets or concerns about the U.S. record and then made the recommendations outlined below.

Applicability of the Covenant at national level.[3] The U.S. should: “(a) Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances . . . .(b) [I]dentify ways to give greater effect to the Covenant at federal, state and local levels, taking into account that the obligations under the Covenant are binding on the State party as a whole. . . . (c) [E]nsure that effective remedies are available for violations of the Covenant, including . . . proposing to the Congress implementing legislation to fill any legislative gaps. . . . [and considering] acceding to the Optional Protocol to the Covenant providing for an individual communication procedure. [4] (d) Strengthen and expand existing mechanisms mandated to monitor the implementation of human rights at federal, state, local and tribal levels . . . . (e) Reconsider its position regarding its reservations and declarations to the Covenant with a view to withdrawing them.”[5]

Accountability for past human rights violations. The U.S. should: “[E]nsure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention, or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in command positions, [6] are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. [7] The State party should also consider the full incorporation of the doctrine of ‘command responsibility’ in its criminal law and declassify and make public the report of the Senate Special Committee on Intelligence into the CIA secret detention programme.”

Racial disparities in the criminal justice system and Racial profiling. The U.S. should: “[R]obustly address racial disparities in the criminal justice system . . . [and] effectively combat and eliminate racial profiling by federal, state and local law enforcement officials . . . .”[8]

Death penalty. The U.S. should: “(a) take measures to effectively ensure that the death penalty is not imposed as a result of racial bias; (b) strengthen safeguards against wrongful sentencing to death and subsequent wrongful execution by ensuring inter alia effective legal representation for defendants in death penalty cases, including at the post-conviction stage; (c) ensure that retentionist states [those that maintain the death penalty] provide adequate compensation for the wrongfully convicted; (d) ensure that lethal drugs for executions originate from legal, regulated sources, and are approved by the U.S. Food and Drug Administration (FDA) and that information on the origin and composition of such drugs is made available to individuals scheduled for execution; [9] (e) consider establishing a moratorium on the death penalty at the federal level and engage with retentionist states with a view to achieving a nationwide moratorium;” [f] Consider acceding to on the Second Optional Protocol to the Covenant aiming at the abolition of the death penalty on or before July 11, 2116, the 25th anniversary of its entry into force.

Targeted killing using unmanned aerial vehicles (drones). The U.S. should: “revisit its position regarding legal justifications for the use of deadly force through drone attacks [and] . . . (a) ensure that any use of armed drones complies fully with its obligations under article 6 of the Covenant, including in particular with respect to the principles of precaution, distinction and proportionality in the context of an armed conflict; (b) subject to operational security, disclose the criteria for drone strikes, including the legal basis for specific attacks, the process of target identification and the circumstances in which drones are used; (c) provide for independent supervision and oversight over the specific implementation of regulations governing the use of drone strikes; (d) in armed conflict situations, take all feasible measures to ensure the protection of civilians in specific drone attacks and to track and assess civilian casualties, as well as all necessary precautionary measures in order to avoid such casualties; (e) conduct independent, impartial, prompt and effective investigations of allegations of violations of the right to life and bring to justice those responsible; (f) provide victims or their families with an effective remedy where there has been a violation, including adequate compensation, and establish accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their home governments.”

Gun violence. The U.S. should: “[T]ake all necessary measures to abide by its obligation to effectively protect the right to life. . . . [including] (a) continue its efforts to effectively curb gun violence, including through the continued pursuit of legislation requiring background checks for all private firearm transfers in order to prevent possession of arms by persons recognized as prohibited individuals under federal law . . . ; and (b) review Stand Your Ground Laws to remove far-reaching immunity and ensure strict adherence to the principles of necessity and proportionality when using deadly force in self-defence.”

Excessive use of force by law enforcement officials. The U.S. should: “(a) step up its efforts to prevent the excessive use of force by law enforcement officers by ensuring compliance with the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers; (b) ensure that the new CBP [U.S. Customs and Border Protection] directive on use of deadly force is applied and enforced in practice; and (c) improve reporting of excessive use of force violations and ensure that reported cases of excessive use of force are effectively investigated, alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, that investigations are re-opened when new evidence becomes available, and that victims or their families are provided with adequate compensation.”

Legislation prohibiting torture. The U.S. should: “[E]nact legislation to explicitly prohibit torture, including mental torture, wherever committed and ensure that the law provides for penalties commensurate with the gravity of such acts, whether committed by public officials or other persons acting on behalf of the State, or by private persons. . . . [and] ensure the availability of compensation to victims of torture.”[10]

Non-refoulment [ban on returning persecuted to persecutor]. The U.S. should: “[S]trictly apply the absolute prohibition against refoulement under articles 6 and 7 of the Covenant, [11] continue exercising the utmost care in evaluating diplomatic assurances, and refrain from relying on such assurances where it is not in a position to effectively monitor the treatment of such persons after their . . . return to other countries and take appropriate remedial action when assurances are not fulfilled.”

Trafficking and forced labour. The U.S. should: “[C]ontinue its efforts to combat trafficking in persons, inter alia by strengthening its preventive measures, increasing victim identification and systematically and vigorously investigating allegations of trafficking in persons, prosecuting and punishing those responsible and providing effective remedies to victims, including protection, rehabilitation and compensation. [T]ake all appropriate measures to prevent the criminalization of victims of sex trafficking, including child victims, to the extent that they have been compelled to engage in unlawful activities. [R]eview its laws and regulations to ensure full protection against forced labour for all categories of workers and ensure effective oversight of labour conditions in any temporary visa program. [R]einforce its training activities and provide training to law enforcement and border and immigration officials, . . . [and] other relevant agencies. . . .”

Immigrants. The U.S. should: “review its policies of mandatory detention and deportation of certain categories of immigrants in order to allow for individualized decisions, to take measures ensuring that affected persons have access to legal representation, and to identify ways to facilitate access of undocumented immigrants and immigrants residing lawfully in the U.S. for less than five years and their families to adequate health care, including reproductive health care services.”

Domestic violence. The U.S. should: “[S]trengthen measures to prevent and combat domestic violence, as well as to ensure that law enforcement personnel appropriately respond to acts of domestic violence. [E]nsure that cases of domestic violence are effectively investigated and that perpetrators are prosecuted and sanctioned. [E]nsure remedies for all victims of domestic violence, and take steps to improve the provision of emergency shelter, housing, child care, rehabilitative services and legal representation for women victims of domestic violence. [T]ake measures to assist tribal authorities in their efforts to address domestic violence against Native American women.”

Corporal punishment. The U.S. should: “Take practical steps, including through legislative measures where appropriate, to put an end to corporal punishment in all settings. [E]ncourage non-violent forms of discipline as alternatives to corporal punishment and . . . conduct public information campaigns to raise awareness about its harmful effects. [P]romote the use of alternatives to the application of criminal law to address disciplinary issues in schools.”

Non-consensual psychiatric treatment. The U.S. should: “[E]nsure that non-consensual use of psychiatric medication, electroshock and other restrictive and coercive practices in mental health services is generally prohibited. Non-consensual psychiatric treatment may only be applied, if at all, in exceptional cases as a measure of last resort where absolutely necessary for the benefit of the person concerned provided that he or she is unable to give consent, for the shortest possible time, without any long-term impact, and under independent review. . . . [P]romote psychiatric care aimed at preserving the dignity of patients, both adults and minors.”

Criminalization of homelessness. The U.S. should: “[E]ngage with state and local authorities to: (a) abolish criminalization of homelessness laws and policies at state and local levels; (b) ensure close cooperation between all relevant stakeholders . . . to intensify efforts to find solutions for the homeless in accordance with human rights standards; and (c) offer incentives for decriminalization and implementation of such solutions, including by providing continued financial support to local authorities implementing alternatives to criminalization and withdrawing funding for local authorities criminalizing the homeless.”

Conditions of detention and use of solitary confinement. The U.S. should: “[M]onitor conditions of detention in prisons, including private detention facilities, with a view to ensuring that persons deprived of their liberty be treated in accordance with the requirements of articles 7 and 10 of the Covenant [12] and the UN Standard Minimum Rules for the Treatment of Prisoners. . . . [I]mpose strict limits on the use of solitary confinement, both pretrial and following conviction, in the federal system, as well as nationwide, and abolish the practice in respect of anyone under the age of 18 and prisoners with serious mental illness. . . . [B]ring detention conditions of prisoners on death row in line with international standards.”

Detainees at Guantanamo Bay. The U.S. should: “[E]xpedite the transfer of detainees designated for transfer, including to Yemen, as well as the process of periodic review for Guantánamo detainees, and ensure either their trial or immediate release, and the closure of the Guantánamo facility. [E]nd the system of administrative detention without charge or trial and ensure that any criminal cases against detainees held in Guantánamo and military facilities in Afghanistan are dealt with within the criminal justice system rather than military commissions and that those detainees are afforded the fair trial guarantees enshrined in article 14 of the Covenant.” [13]

NSA surveillance. The U.S. should: “(a) take all necessary measures to ensure that its surveillance activities, both within and outside the [U.S.], conform to its obligations under the Covenant, including article 17; [14] in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance; (b) ensure that any interference with the right to privacy, family, home or correspondence be authorized by laws that (i) are publicly accessible; (ii) contain provisions that ensure that collection of, access to and use of communications data are tailored to specific legitimate aims; (iii) are sufficiently precise specifying in detail the precise circumstances in which any such interference may be permitted; the procedures for authorizing; the categories of persons who may be placed under surveillance; limits on the duration of surveillance; procedures for the use and storage of the data collected; and (iv) provide for effective safeguards against abuse; (c) reform the current system of oversight over surveillance activities to ensure its effectiveness, including by providing for judicial involvement in authorization or monitoring of surveillance measures, and considering to establish strong and independent oversight mandates with a view to prevent abuses; (d) refrain from imposing mandatory retention of data by third parties;(e) ensure that affected persons have access to effective remedies in cases of abuse.”

Juvenile justice and life without parole sentences. The U.S. should: “prohibit and abolish all juvenile life without parole sentences irrespective of the crime committed, as well as all mandatory and non-homicide related sentences of life without parole. . . . [15] ensure that all juveniles are separated from adults during pretrial detention and after sentencing and that juveniles are not transferred to adult courts. . . . [encourage] states that automatically exclude 16 and 17 year olds from juvenile court jurisdictions . . . to change their laws.”

Voting rights. The U.S. should: “ensure that all states reinstate voting rights to felons who have fully served their sentences, provide inmates with information about their voting restoration options and remove or streamline lengthy and cumbersome state voting restoration procedures, as well as review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence. [T]ake all necessary measures to ensure that voter identification requirements and the new eligibility requirements do not impose excessive burdens on voters resulting in de facto disenfranchisement. [P]rovide . . . full voting rights of residents of Washington, D.C.”

Rights of indigenous people. The U.S. should: “adopt measures to effectively protect sacred areas of indigenous peoples against desecration, contamination and destruction and ensure that consultations are held with the communities that might be adversely affected by State party’s development projects and exploitation of natural resources with a view to obtaining their free, prior and informed consent for the potential project activities.”

Other. The U.S. should: “widely disseminate the Covenant, the text of the . . . [recent U.S. report to the Committee], the written responses that . . . [the U.S.] has provided in response to the list of issues drawn up by the Committee and the present concluding observations so as to increase awareness among the judicial, legislative and administrative authorities, civil society and non-governmental organizations . . . [in the U.S.] as well as the general public.” “[For] its fifth periodic report, . . . continue its practice of broadly consulting with civil society and non-governmental organizations. [P]rovide, within one year, relevant information on its implementation of the Committee’s recommendations regarding accountability for [past human rights violations, gun violence, detainees at Guantanamo Bay and NSA surveillance]. [Submit] its next periodic report . . . [on March 28, 2019 with] specific, up-to-date information on all . . . [the Committee’s] recommendations and on the Covenant as a whole.”

Conclusion

One of the overriding issues in the Committee’s review was the geographical coverage of the entire treaty, whether it applies to U.S. conduct outside the U.S. territory, but where it has jurisdiction. The proper conclusion to this issue, in this blogger’s opinion, is that it does so apply or does have extraterritorial application. This conclusion was succinctly stated by the Committee’s Chairperson, Sir Nigel Rodley, during the hearing as noted in a prior post.

Essentially the same conclusion was reached in an October 2010 memo by Harold Koh, then the U.S. State Department’s Principal Legal Adviser.[16] After what he described as an “exhaustive review,” he stated, “an interpretation of Article 2(1) [of the ICCPR] that is truer to the Covenant’s language, context, object and purpose, negotiating history, and subsequent understandings of other States Parties, as well as the interpretations of other international bodies, would provide that in fact, . . . [a] state incurs obligations to respect Covenant rights — is itself obligated not to violate those rights through its own actions or the actions of its agents– in those circumstances where a state exercises authority or effective control over the person or context at issue.”[17]

Civil society organizations in the U.S. lauded the Committee’s “scathing report” and characterized the review as an opportunity for the Obama Administration to meaningfully improve its human rights legacy. The Electronic Frontier Foundation, among other groups, welcomed the Committee’s explicit recognition of the extraterritorial nature of the State’s obligations and its specific recommendations regarding surveillance, and urged immediate implementation by the United States.

The U.S. press coverage of this important international critique of U.S. human rights was pathetic. I did not find any such coverage in the Washington Post and the Wall Street Journal, two respected national newspapers.

The New York Times, on the other hand, had limited coverage. Before the hearings, the Times published one article on the then likely U.S. rejection of the treaty’s having extraterritorial effect along with the actual text of the contrary opinion on that issue by Harold Koh. Later the Times had an article about the first day of the Committee’s hearings that was primarily about the U.S.’ actual rejection of the treaty’s extraterritoriality with two short paragraphs about other issues. Finally the Times had an exceedingly short article about the Committee’s report that touched only on a few of its issues (drone strikes; the virtual lack of any U.S. investigation and prosecutions for alleged unlawful killings; use of torture and authors of legal memoranda purportedly justifying torture in the so called “war on terror;” and the call for publication of the U.S. Senate’s investigation of the CIA’s secret rendition program (turning over suspects to other countries)).

Finally, the Committee’s critique can be taken as an agenda for change by U.S. human rights advocates. Such change will not happen quickly given the dysfunctionality of the U.S. political system and culture. As President Obama frequently says, change does not come easily.                                                                 —————————————————————–

[1] This summary of the Committee’s concluding observations is based upon the observations themselves plus extensive articles about them in the Guardian, Reuters, Human Rights Watch, Amnesty International, the American Civil Liberties Union and a very short New York Times article.

[2] Before making its criticisms, the Committee noted its “appreciation [for] the many [U.S.] efforts undertaken, and the progress made in protecting civil and political rights.” The Committee then welcomed the U.S. Supreme Court’s abolition of the death penalty for offenders who were under the age of 18 when the crimes were committed (Roper v. Simmons (2005)); the U.S. Supreme Court’s recognition of extraterritorial habeas corpus for aliens detained at Guantanamo Bay (Boumediene v. Bush (2008)); the expansion of rights for such detainees (Presidential Executive Orders 13491 and 13493); and the U.S. President’s support of the U.N. Declaration of the Rights of Indigenous Peoples.

[3] This issue concerned Article 2(1) of the ICCPR, which states, “Each State Party . . . undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Emphasis added.)

[4] The Optional Protocol to the ICCPR allows alleged victims of an alleged violation by a State Party of any of the rights set forth in the Covenant to submit a communication of complaint to the Committee, and after it has received a response from that State Party, the Committee shall submit ”its views” [akin to an advisory opinion] on the matter to the alleged victim and State Party.

[5] The U.S. reservations and understandings to its ratification of the treaty were covered in a prior post.

[6] “Persons in command positions” presumably include former President George W. Bush, Vice President Dick Cheney and Secretary of Defense Donald Rumsfeld.

[7] “Those who provided legal pretexts” presumably include John Yoo, Alberto Gonzalez and four other lawyers who in the George W. Bush Administration were authors of legal memoranda justifying the so-called “enhanced interrogation” techniques. At least some of these memoranda are available online. The issue of their legal responsibility for such memoranda has been raised in at least three proceedings. First, under Spain’s previous version of its universal jurisdiction statute, a Spanish court opened a criminal investigation regarding these six lawyers, but later the case was stayed when the Spanish court asked the U.S. for information about any U.S. investigation of such allegations. Second, Mr. Yoo was sued in U.S. federal court for money damages and declaratory relief by an individual who had been arrested and detained for interrogation in a military brig in the U.S. for three and a half years, but the U.S. Court of Appeals for the Ninth Circuit in May 2012 held that Mr. Yoo was entitled to immunity and thus reversed the district court’s denial of Yoo’s dismissal motion. Third, in January 2010, the U.S. Department of Justice’s Office of Professional Responsibility concluded that Yoo and another lawyer had used flawed legal reasoning in these memoranda, but that this had not constituted professional misconduct This issue also has been raised in other contexts. In the midst of all this, Yoo continues vigorously to assert the validity of the memoranda and thus his innocence.

[8] One of the Committee’s concerns that prompted this recommendation was, in the Committee’s words, “surveillance of Muslims undertaken by . . . the New York Police Department (NYPD) in the absence of any suspicion of wrongdoing.” On April 15th (or nearly three weeks after the issuance of the Committee’s report), the NYPD announced that it was terminating this program. This decision was welcomed by Muslim Advocates and the Center for Constitutional Rights of New York City while lamenting that the NYPD did not say it was ending its broad surveillance practices.

[9] There is litigation in U.S. courts over lethal drugs used in executions under death penalty laws. In Oklahoma, for example, a state trial court on March 26, 2014, decided that a state law mandating secrecy for the identity of suppliers of such drugs was unconstitutional. On April 21st the Oklahoma Supreme Court stayed two executions so that the court could resolve “grave constitutional claims.” Since then there has been an unseemly intra-state squabble over whether that court had the power to stay the executions with the Oklahoma Governor vowing to conduct the executions as previously scheduled, a state legislator introducing a resolution to impeach the court’s judges who voted for the stay and the Supreme Court itself on April 23rd vacating the stay.

[10] The U.S. has a criminal torture statute, 18 U.S.C. sec. 2340A. It states, “Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.” (Emphasis added.) Thus, this criminal statute does not apply if the torture occurs in the U.S. In addition, the U.S. has the Torture Victims Protection Act (TVPA) that provides for a civil action for money damages by an “individual” who has been subjected to “torture” against an “individual, who, under actual or apparent authority, or color of law, of any foreign nation” committed the torture. (Emphasis added.) Thus, this statute does not apply if the torture is committed by someone acting under U.S. law.

[11] The ICCPR’s Article 6 bans arbitrary deprivation of life and any derogation from the genocide treaty while its Article 7 bans torture or cruel, inhuman or degrading treatment or punishment.

[12] The ICCPR’s Article 7 bans “torture . . . [and] cruel, inhuman or degrading treatment or punishment while its Article 10 requires all inmates to be “treated with humanity and respect for the dignity of the human person,” separation of accused persons from convicts and juveniles from adults and in facilities whose aims shall be “reformation and social rehabilitation” of inmates.

[13] Article 14 of the ICCPR contains detailed provisions that in the U.S. would be regarded as constitutional criminal due process rights.

[14] Article 17 of the ICCPR says “[e]veryone has the right to the protection of law against . . . arbitrary or unlawful interference with his privacy, family, home or correspondence, . . . [and] unlawful attacks on his honour and reputation.”

[15] The Committee’s report recognized with satisfaction that the U.S. Supreme Court had decided under the U.S. Constitution’s Eighth Amendment’s ban on “cruel and unusual punishment” that (a) sentences of life without parole for juveniles for non-homicide crimes were not permitted (Graham v. Florida (2010)); and (b) mandatory sentences of life without parole for juveniles for homicide were not permitted (Miller v. Alabama (2012)).

[16] Koh is one of the U.S.’ preeminent international lawyers. He has taught at the Yale Law School since 1985 except for his years as the State Department’s Legal Adviser (2009-2013) and as U.S. Assistant Secretary of State for Democracy, Human Rights and Labor (1998-2001). He served as the Dean of the Yale Law School (2004-2009) and returned to Yale in 2013 as the Sterling Professor of International Law. He has received many awards and holds degrees from Harvard University (B.A. and J.D.) and the University of Oxford (B.A. and M.A.)

[17] The Koh memorandum also stated that the contrary 1995 opinion by the Department’s Legal Adviser was “not compelled by either the language or the negotiating history of the Covenant . . . [and] that the 1995 Interpretation is in fact in significant tension with the treaty’s language, context, and object and purpose, as well as with interpretations of importantU.S. allies, the Human Rights Committee and the ICJ [International Court of Justice], and developments in related bodies of law [and, therefore,] was no longer tenable.” Nevertheless, the U.S. continues to rely on the 1995 opinion for its resistance to extraterritorial application of the ICCPR. The Koh memorandum was published by the New York Times along with a discussion of the document a week prior to the Committee’s hearings, and it is safe to assume that copies of same were provided to all the Committee members before the hearings.

U.N. Human Rights Committee’s Hearings about U.S. Human Rights

As discussed in a prior post, in March 2014, the United Nations’ Human Rights Committee (the Committee) issued a negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights. That prior post reviewed the background of the ICCPR and certain events preceding the Committee’s evaluation.

U.N. Human Rights Committee
           U.N. Human                Rights Committee

Now we look at the hearings that lead up to that negative evaluation. The evaluation itself will be the subject of another post.

The Committee’s Hearings[1]

On March 13 and 14, 2014, the Committee held sessions or hearings in Geneva, Switzerland regarding the U.S. report and other information.

The Committee’s questions focused on racial disparities in the criminal justice system; racial discrimination and profiling; police brutality; treatment of the homeless population; the death penalty; gun violence (including stand-your-ground laws); detention of immigrants; drone attacks; “enhanced interrogation techniques” including water boarding; National Security Agency surveillance; treatment of detainees held in Guantanamo; and transfers or renditions of detainees to third countries that practiced torture. Other covered issues were restrictions on voter registration and alleged mistreatment of mentally-ill and juvenile prisoners.

The Committee encouraged the U.S. to disclose a Senate investigative report on a Central Intelligence Agency (CIA) interrogation program that reportedly involved torture. The U.S. delegation’s insistence that the NSA’s mass collection of data was lawful and subject to substantial oversight was disputed by non-governmental groups that attended the sessions.

One Committee member, Walter Kälin,[2] was especially critical in his comments and questions. Here a few of those comments:

  • He attacked the US government’s refusal to recognize the ICCPR’s mandate over its actions beyond its own borders. He said if the U.S. position were adopted universally, it would foster “impunity and lack of accountability” for human rights violations.
  • Kälin said, “One hundred and forty-four cases of people wrongfully convicted to death [in the U.S.] is a staggering number.” He pointed out the “disproportional representation of African Americans on death rows . . . ‘Discrimination is bad, but it is absolutely unacceptable when it leads to death.’”
  • Kälin pointed to another “‘staggering figure’ – that there are 470,000 crimes committed with firearms each year, including about 11,000 homicides. . . . [M]uch more needs to be done to curb gun violence.”

The Committee’s Chairperson, Sir Nigel Rodley of the United Kingdom,[3] addressed the issue of legal opinions in the George W. Bush Administration that provided a purported legal justification for the “enhanced interrogation” methods. Sir Nigel said, “When evidently seriously flawed legal opinions are issued which then are used as a cover for the committing of serious crimes, one wonders at what point the authors of such opinions may themselves have to be considered part of the criminal plan in the first place?” He added, “Of course we know that so far there has been impunity.”

Chairperson Rodley also zeroed in on the issue of extraterritorial application of the ICCPR. He said at the conclusion of the hearings, it “was difficult . . . to understand what principles underlay the [U.S.] non-acceptance of the extraterritorial application of the Covenant.” Indeed, he immediately followed this statement with his exposition of the Committee’s contrary view. In diplomatic language, Rodley was saying the U.S. position was absurd. Here is Sir Nigel’s exposition:

  • “The relevant applicable principles were the canons of interpretation contained in the Vienna Convention on the Law of Treaties, . . . [which] stated that a treaty should be interpreted in the light of its text, its context, and its object and purpose.”
  • “Consequently, it was difficult to see how the words of article 2 of the Covenant regarding a State party’s undertaking to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized therein [[4]] were only capable of interpretation as meaning that they applied solely to people who were both within the territory and subject to its jurisdiction. An ordinary, grammatical reading of the article in question supported the interpretation that it applied to everybody in either of the circumstances provided for.”
  • “Furthermore, the idea that the object and purpose of the treaty was met by saying that its application stopped at the frontier, whatever effective control any State might have over certain individuals, was one that was hardly consistent with the treaty’s object and purpose. That was the position not only of the Committee [5] but also of the International Court of Justice and very many States.”

Conclusion

The Committee’s negative comments at the hearings were a preview of its very critical comments about U.S. human rights in the Committee’s concluding report or “observations.” Another post will discuss that report.

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[1] This account of the hearings is based upon articles in the Guardian (March 13 and 14), the New York Times (March 13), Reuters (March 13), Al-Jazeera (March 14), the International Justice Resource Center and the Committee’s Summary Record (March 14). The archived webcasts of these sessions are available on the web.

[2] Walter Kälin is a preeminent Swiss humanitarian, constitutional lawyer, international human rights lawyer, activist, advocate, legal scholar and law professor. He has been published extensively on issues of human rights law, the law of internally displaced persons, refugee law and Swiss constitutional law. Since Since 2004, Kälin has served as the Representative of the United Nations’ Secretary-General on the Human Rights of InternallyDisplaced Persons, and In 1991-1992, he served as the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Kuwait under Iraqi occupation. He holds degrees from the University of Bern (Dr. Jur.) and the Harvard Law School (LL.M.)

[3] Sir Nigel Rodley since 2001 has been a Committee member and since 2003 has served as its Vice Chair and now its Chair. He also is a Commissioner of the International Commission of Jurists and a trustee of the NGO Freedom from Torture. Since 1990 he has taught law and human rights at the University of Essex and since 1994 has been its Professor of Law and Chair of the Human Rights Centre. Formerly he was Amnesty International’s Legal Advisor and Head of the Legal and Intergovernmental Organisations [sic] Office (1973–1990) and U.N. Special Rapporteur on torture (1993-2001). He is a founding member and former Executive Committee Vice Chairman of INTERRIGHTS (the International Centre for the Legal Protection of Human Rights). He is the author of books and articles about international human rights and holds degrees from the University of Leeds (LLB), New York University (LLM), Columbia University (LLM) and the University of Essex (PhD). In 1998 Queen Elizabeth awarded him the Knight of the British Empire (KBE) for his “services to human rights and international law.”

[4] The complete text of Article 2(1) of the ICCPR states: “Each State Party to the . . . [ICCPR] undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin,property, birth or other status.”

[5] The Committee publishes “general comments” setting forth its interpretation of various provisions of the treaty, and its interpretation of Article 2(1) is set forth in General Comment No. 31 (The Nature of the General Legal Obligation Imposed on States Parties to the Covenant), which was issued on March 29, 2004.

 

 

 

U.N. Human Rights Committee’s Review of U.S. Human Rights

In March 2014, the United Nations’ Human Rights Committee (the Committee) made a very negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights.

Before we examine the Committee’s hearings that resulted in that very negative evaluation in subsequent posts, we will look at the background of the ICCPR and the events leading up to the Committee’s hearings and evaluation.

Background of the ICCPR

As discussed in a prior post, the ICCPR was approved and adopted by the United Nations General Assembly on December 16, 1966. The drafting of the treaty was the work of the U.N. Commission on Human Rights, in which the U.S. participated.

The ICCPR (in terms reminiscent of the U.S. Bill of Rights) establishes an international minimum standard of governmental conduct for rights of self-determination; legal redress; equality; life; liberty; freedom of movement; fair, public and speedy trial of criminal charges; privacy; freedom of expression, thought, conscience and religion; peaceful assembly; freedom of association; family; and participation in public life. The ICCPR forbids “cruel, inhuman or degrading treatment or punishment;” slavery; arbitrary arrest; double jeopardy; and imprisonment for debt.

The ICCPR’s Part IV established the Human Rights Committee, and its Article 41 provides that periodically the States Parties to the treaty shall “submit reports on the measures they have adopted which give effect to the rights recognized . . . [in the treaty] and on the progress made in the enjoyment of those rights” and that the Committee “shall study [such] . . . reports . . . . [and make] such general comments as it may consider appropriate.”[1]

Under Articles 28 and 29 of the treaty, its states parties elect the 18 Committee members to four-year terms from “nationals of the States Parties . . . who shall be persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience, . . . [and] who shall be elected and shall serve in their personal capacity.”

The Committee, under Article 31, “may not include more than one national of the same State” and “consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems.”

As discussed in a prior post, the Covenant went into force on March 23, 1976, in accordance with its Article 49(1), after 35 states had ratified or acceded to the treaty. On October 5, 1977, the U.S. signed the treaty, but it was not until nearly 15 years later (June 8, 1992), that the U.S. ratified this treaty (with reservations) and became a state party thereto. Now there are 168 states parties to the treaty.

Events Leading Up to the Committee’s Evaluation 

1. U.S. Report. On December 30, 2011, the U.S. submitted to the Committee its 188-page Fourth periodic report.[2]

The report opened with these words of President Obama,“By no means is America perfect. But it is our commitment to certain universal values which allows us to correct our imperfections, to improve constantly, and to grow stronger over time. . . .”

The report then marched through the U.S. implementation of each of the 27 Articles of the ICCPR.

In conclusion, the U.S. report discussed the Committee’s Concluding Observations on the prior U.S. report that the U.S. “acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction, but outside its territory, as well as its applicability in time of war.” The U.S., however, reiterated its position that the Covenant does not so apply.

With respect to the Committee’s prior request that the U.S. “consider in good faith the interpretation of the Covenant provided by the Committee,” the U.S. continued to reject the Committee’s interpretation on applicability, but said it “appreciates its ongoing dialogue with the Committee with respect to the interpretation and application of the Covenant, considers the Committee’s views in good faith, and looks forward to further discussions of these issues when it presents this report to the Committee.”

2. Committee’s List of Issues. On April 29, 2013, after reviewing the U.S. report and Common Core Document, the Committee issued its six-page, 27-paragraph List of Issues, which asked the U.S. to respond to the following:

  • U.S. constitutional and legal framework: clarify U.S. position on applicability of Covenant for individuals under its jurisdiction, but outside its territory; measures to ensure state and local authorities comply with the Covenant; whether a national human rights institution will be established; and whether the U.S. will withdraw its reservations to the Covenant.
  • Non-discrimination and equal rights of men and women: describe efforts to address racial disparities in criminal justice system and to eliminate all kinds of racial profiling against Arabs, Muslims and South Asians; provide information on imposition of criminal penalties on street people and on obstacles to undocumented migrants’ accessing health services and higher education institutions.
  • Right to life: provide information on various issues regarding the death penalty and victims of gun violence; and clarify how drone attacks allegedly comply with the Covenant and whether senior officers and lower-ranking soldiers have been investigated and punished for unlawful killings in armed conflict.
  • Prohibition of torture and cruel, inhuman or degrading treatment or punishment and treatment of detainees: provide information on independent investigations of treatment of detainees, whether U.S. regards so-called “enhanced interrogation” to violate the Covenant, why the U.S. has not adopted a statute prohibiting torture within its territory, whether the U.S. systematically evaluates “diplomatic assurances” before transfers of detainees, addressing claims of police brutality and excessive use of force, regulation of electro-muscular-disruption devices, prohibition and prevention of corporal punishment of children and application of criminal law to minors, non-consensual use of medication in psychiatric and research institutions, solitary confinement, separation of juvenile from adults detainees, rights of detainees in Guantanamo Bay, Afghanistan and Iraq, rights of immigrant detainees and prevention of domestic violence.
  • Elimination of slavery and servitude: provide information on combatting human trafficking and protection of children from sexual exploitation.
  • Right to privacy: provide information on NSA surveillance.
  • Freedom of assembly and association: clarify why certain workers are excluded from right to organize in trade unions.
  • Freedom of movement, marriage, family and protection of minors: clarify whether all cases of individuals serving life sentences without parole for offenses committed as a minor have been reviewed and if U.S. will abolish such sentences; and provide information on children held at Guantanamo Bay, Afghanistan and Iraq.
  • Right to take part in conduct of public affairs: provide information on voting rights of citizens who have completed their sentences for felony convictions, states’ measures to impose legal or de facto disenfranchisement of voters and efforts to provide residents of District of Columbia right to vote and elect representatives to U.S. Senate and House of Representatives.
  • Rights of minorities: provide information on protection of indigenous sacred sites and their rights to be consulted and consent to matters affecting their interests.

3. U.S. Replies. On July 5, 2013, the U.S. submitted its 28-page Replies to the List of Issues. It said the U.S. responded “with great pleasure” and was “pleased to participate in this process.” The U.S., it said, “in the spirit of cooperation, provided as much information as possible in response to the questions posed by the Committee.”

The U.S., however, maintained its position that the treaty did not have extraterritoriality, i.e., it did not apply to U.S. conduct outside the U.S. It did provide some additional information, but did not retract any of its previous positions that prompted the Committee’s List of Issues.

4. Civil Society Organizations’ Submissions. Sometime prior to October 2013, 138 reports about the status of U.S. human rights were submitted to the Committee by civil society organizations, including Amnesty International, Human Rights Watch, the American Civil Liberties Union, Physicians for Human Rights and Minnesota-based Advocates for Human Rights.

5. Postponement. The Committee’s review of the U.S was scheduled for October 2013, but was postponed until March 2014, pursuant to a U.S. request due to the then ongoing U.S. government shutdown.[3]

6. U.S. Delegation. On March 7, 2014, the U.S. submitted to the Committee the list of members of the U.S. delegation for the upcoming session. The U.S. Representative was Mary McLeod, Principal Deputy Legal Adviser, Office of the Legal Advisor, Department of State. She was to be aided by 27 Advisers from the Departments of State, Justice, Defense, Homeland Security, Health and Human Services and Interior; the U.S. Mission to the U.N.; the Attorney General of the State of Mississippi; the Mayor’s Office of Salt Lake City, Utah; and a Private Sector Adviser (a private attorney from Los Angeles, California).

Conclusion

On March 13 and 14, 2014, the Committee held hearings in Geneva, Switzerland on the U.S. report and other information, and on March 26, 2014, the Committee adopted its 11-page report (Concluding observations on the fourth report of the United States of America) that was very critical of the U.S. compliance with the ICCPR.[4]

These subjects will be discussed in subsequent posts.

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[1] The nation states creating and joining this treaty chose to not grant the Committee the power to order the states to do anything. Instead, the Committee only may make recommendations as observations.

[2] The report was supplemented the same date by the 85-page U.S. Common Core Document that contained general information (U.S. demographic, economic, social and cultural characteristics) and legal information (U.S. constitutional, political and legal structure; general framework for the protection and promotion of human rights; and information on non-discrimination and equality and effective remedies).

The U.S.’ fourth periodic report and Common Core Document were preceded by the first U.S. report to the Committee on July 29, 1994 (with the Committee’s concluding observations on October 3, 1995) and the U.S.’ combined second and third reports on November 28, 2005 (with the Committee’s concluding observations on September 15 and December 18, 2006).

[3] The civil society organizations submitted to the Committee an additional 41 reports before the March 2014 Committee session.

[4] The Committee’s procedure and report are similar to, but separate from, the Universal Periodic Review (UPR) of U.S. human rights that is conducted by a separate U.N. organization, the Human Rights Council, as discussed in a prior post.

The Importance of Religious Freedom

The top officials of the U.S. Commission on International Religious Freedom have set forth compelling reasons why religious freedom around the world is important. Its Chairperson, Robert P. George, and its Vice Chairperson, Katrina Lantos Swett, have done so in an essay in the Wall Street Journal entitled “Religious Freedom Is About More Than Religion.”

Dr. Robert P. George
Dr. Robert P. George
Dr. Katrina Lantos Swett
Dr. Katrina Lantos Swett

They assert, “To respect fundamental human rights is to favor and honor the [human being] . . . who is protected by those rights—including the rights to freedom of speech, press, assembly and religion.” Therefore, honoring the individual human being favors “human flourishing in its many dimensions. For those who regard humans not just as material beings but also as spiritual ones—free, rational and responsible—it is obvious that their spiritual well-being is no less important than their physical, psychological, intellectual, social and moral well-being.”

Such human flourishing “requires respect for their freedom—as individuals and together with others in community—to address the deepest questions of human existence and meaning. This allows them to lead lives of authenticity and integrity by fulfilling what they conscientiously believe to be their religious and moral duties.”

Moreover, religious “faith by its nature must be free. A coerced ‘faith’ is no faith at all. Compulsion can cause a person to manifest the outward signs of belief or unbelief. It cannot produce the interior acts of intellect and will that constitute genuine faith.” Indeed, coercion “in the cause of belief, whether religious or secular, produces not genuine conviction, but pretense and inauthenticity.”

Religious freedom, therefore, must “include the right to change one’s beliefs and religious affiliation. It also includes the right to witness to one’s beliefs in public as well as private, and to act—while respecting the equal right of others to do the same—on one’s religiously inspired convictions in carrying out the duties of citizenship.”

As a result, “one of the aims of U.S. foreign policy should be to combat . . . [religious] intolerance—not just because religious freedom reduces the risk of sectarian conflict, but more fundamentally because it protects the liberty that is central to human dignity.”

Conclusion

This statement echoes the words of the international legal instruments that appropriately guide the work of the U.S. Commission on International Religious Freedom: the Universal Declaration of Human Rights, which the U.S. supported in the U.N. General assembly in 1948, and the International Covenant on Civil and Political Rights, which the U.S. ratified in 1992.

The Universal Declaration opens with these words in its Preamble: “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”  It then declares in Article 18, “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

These latter words are essentially repeated in Article 18(1) of the International Covenant. Its Article 18(2) goes on to say, “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”

Failed Efforts To Weaken the Inter-American Human Rights System Under the Guise of Reform

A prior post discussed the March 22, 2013, resolution by the General Assembly of the Organization of American States (OAS) that strengthened the Inter-American Human Rights System, especially the Inter-American Commission on Human Rights (“Commission”).

In so doing, the OAS rejected efforts to weaken the Commission under the guise of reform proposals that had been offered by Ecuador and other states that the Commission has criticized (Venezuela, Bolivia and Nicaragua).

We now examine the background to that surreptitious effort to weaken that System and the debate at the March 22nd General Assembly meeting

Background

1. Multilateral Treaties and Other Instruments Regarding the Right of Free Expression.

The right of free expression by the media and others is well established in international law.

The United Nation’s General Assembly’s Universal Declaration of Human Rights of 1948 in Article 19 states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” In 1966 this was put into legally enforceable form in Article 19 of the International Covenant on Civil and Political Rights, which entered into force in 1976.

To like effect is the American Convention on Human Rights, which was adopted by the OAS in 1969 and which entered into force in 1978. Its Article 13(1) says, “Everyone has  the right to freedom of thought and expression . . . [including the] freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.” Article 13(3) goes on to say, “The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.”

Elaborating on this right is the Inter-American Declaration of Principles of Freedom of Expression of 2000.

2. Ecuador’s Hostility to Freedom of Expression.

Ecuadorian President Rafael Correa
Ecuadorian President Rafael Correa

Ecuador under the presidency of Rafael Correa since January 2007 has through policies and actions retaliated against journalists and media that have criticized him and his government. Correa has insulted and filed lawsuits against reporters and news outlets and promoted a series of legal measures to roll back press freedoms. His government has expropriated television channels, radio stations, newspapers and magazines.

Journalists in the country also have been subjected to physical threats and assaults with lackluster efforts by the government to investigate and prosecute those responsible.

3. The Commission and Civil Society’s Criticism of Ecuador’s Hostility to Freedom of Expression.

The Commission in 1997 created the Special Rapporteur for Freedom of Expression “to encourage the defense of the right to freedom of thought and expression in the hemisphere, given the fundamental role this right plays in consolidating and developing the democratic system and in protecting, guaranteeing, and promoting other human rights.”

This Rapporteur has been in the forefront of criticizing Ecuador for these actions against journalists and the media. Since January 1, 2009 it has issued nine press releases expressing its concern over specific criminal prosecutions and imprisonments of journalists for libel for publication of articles about corruption of public officials and for specific physical threats and assaults on journalists.

In addition, since 2006 the annual reports of the Rapporteur have had sections specifically addressing Ecuador’s conduct in this area.

For example, the latest such report (for 2011) devotes 31 pages (78-108) for a detailed, footnoted review of Ecuador’s assaults and attacks on media and journalists; legal proceedings and arrests (the “Rapporteur is concerned about the consistent tendency of high-ranking public officials to rebuke, arrest, and prosecute citizens who criticize them at public events”); presidential broadcasts and government interruptions of news programs; disparaging statements by senior state authorities against media outlets and reporters critical of the government; constitutional amendment and legislative proposals to regulate the content of all media, establish the grounds for liability and the applicable sanctions and serve as an authority on enforcement; and cloture and regulation of communications media.

Such actions also have subjected the country to similar criticism by the U.N. Human Rights Council in its Universal Periodic Review of Ecuador in the summer of 2012. One of the Council’s closing recommendations in that Review was for Ecuador to reform its legislation regarding freedom of expression with a view to bringing it in conformity with international standards and those of the Inter-American Commission on Human Rights. In response Ecuador said that it could not agree to reform its legal framework in accordance with standards from the Commission, when it is the Inter-American Court of Human Rights, not the Commission, which has judicial competency over this matter. Nor could Ecuador, it said, eliminate laws that criminalize opinion since it had no such laws.

In addition, Ecuador has been severely chastised by the Committee to Protect Journalists, which put the country on its Risk List of the 10 countries in the world where press freedom suffered the most in 2012. Similar rebukes have come from Human Rights Watch, Freedom House and the Washington Post Editorial Board.

4. Ecuador’s Campaign for Its Proposed “Reforms” of the Commission.

In response to the Special Rapporteur’s persistent and documented criticism of Ecuador, the country developed a set of proposals to “reform” the Commission. Prominent in this package were reduction in funding (and hence the work) of the Special Rapporteur and elimination of his separate annual report.

Ricardo Patino
Ricardo Patino

In early 2013 Ecuador conducted a lobbying campaign in support of these proposals. Its Foreign Minister, Ricardo Patino, went on a tour of Mexico, Chile, Argentina, Brazil, Colombia, Dominican Republic, Haiti and Venezuela to promote them.  He also advocated them at a meeting of the Political Council of the Bolivarian Alliance for the Peoples of Our Americas (ALBA) [1] and at a March 11th meeting in Guayaquil, Ecuador of the 24 states that were parties to the American Convention on Human Rights.[2]

The latter event was opened by a long speech by Ecuadorian President Correa, who emphasized that the Commission should have its headquarters in a state that has ratified said Convention (not Washington, D.C.); that the Commission should have its own budget provided only by state parties to the Convention (without voluntary contributions by outsiders like the U.S., Canadian and European governments and NGO’s);  that the Commission should not be “autonomous” and instead be controlled by said states parties; the abolition of the Commission’s rules authorizing its issuance of precautionary measures; having the Commission focus on general promotion of human rights, not investigating and deciding on alleged violations of human rights; and elimination of the separate annual report of the Special Rapporteur for Free Expression and instead including such a report in a comprehensive report for all of the rapporteurships.

The Ecuador meeting resulted in the Declaration of Guayaquil whereby the 24 states parties agreed that at the March 22nd meeting of the OAS General Assembly they would support the following: a group of their foreign ministers would press the U.S., Canada and other non-parties to the Convention to ratify or accede to same; the Commission would be refocused on promotion of human rights through national systems; financing of the Commission would be increased by states parties and by “neutral” others; all rapporteurships would be treated equally; an analysis of the costs of the OAS Human Rights System would be obtained; the Commission’s headquarters would be moved to a state party; and annual conferences about reforming the System would be held.

Opposition to such proposals came forward from the U.N. High Commissioner for Human Rights, Navi Pillay, who urged the OAS members “to strengthen its exemplary human rights system, by promoting universal access for citizens . . ., respecting the Commission’s autonomy to progressively improve its policy and practices in response to the needs of victims and concerns of member states, and providing the necessary resources [to the System].” Similar concerns were voiced by Amnesty International, Human Rights Watch, the Committee to Protect Journalists, Freedom House, a group of 98 prominent Latin Americans and a coalition of 700 hemispheric human rights organizations.

Another opponent of Ecuador’s campaign was Cesar Gaviria Trujillo, a former president of Colombia and past secretary general of the OAS. He said that the so called “reforms” of the Commission put forward by Ecuador would “severely weaken the [C]omission and make it easier for governments to ignore basic rights and limit free speech.” They would “drastically curtail [the Commission’s] autonomy” and put a “financial stranglehold” on its operations, including a “devastating impact” on the Special Rapporteur for Freedom of Expression. [3]

The March 22nd OAS General Assembly Meeting

Jose Miguel Insulza, OAS Secretary General
Jose Miguel Insulza, OAS Secretary General

In opening remarks that day, the OAS Secretary General, Jose Miguel Insulza from Chile, stressed that the autonomy of the System needed to be maintained. He also said that strengthening some of the Commission’s rapporteurships “cannot mean that others are weakened” and that the Special Rapporteurship on Freedom of Expression should be strengthened “with a program of ample defense of [such] freedom . . . . ” This would include “issues relating to the curtailment of that freedom by public authorities . . .  as well as the threats and crimes to which journalists and the social media are increasingly subjected in our region and the obligation of states to protect them.”

William J. Burns, U.S. Deputy Secretary of State
William J. Burns, U.S. Deputy Secretary of State

Similar remarks were made by U.S. Deputy Secretary of State, William J. Burns. He noted that even though the U.S. was not a party to the American Convention on Human Rights, the U.S. still collaborates with the Commission when it challenges the U.S. on such issues as the death penalty, the human rights of migrants and children and the status of detainees at Guantanamo Bay, Cuba. He added, “We must be vigilant against efforts to weaken the Commission under the guise of reform. [Such efforts] . . . seek to undermine the Commission’s ability to hold governments accountable when they erode democratic checks and balances and concentrate power through illiberal manipulation of democratic processes.”

Ecuadorian Foreign Minister Patino in his remarks accused the opposition and the media of distorting his government’s proposals. He also accused the Commission of improperly assuming the power to issue precautionary measures. Its decisions were independent, he said, but the Commission was not autonomous. He rhetorically asked, the Commission is autonomous and independent of whom? Sotto voce, a Spanish journalist answered, “You,” causing laughter by those around the journalist.

The resolution adopted by acclamation at the midnight conclusion of the March 22nd meeting already has been discussed. It clearly did not adopt all of the items in Ecuador’s package.

This resolution emerged after a long day in which the U.S., Canada, Mexico, Colombia, Costa Rica, Panama and Chile lead the opposition to the proposals from Ecuador, Bolivia, Venezuela and Nicaragua. A Human Rights Watch observer said, “It was a resounding victory for the Commission, and a major defeat for the Venezuela-Ecuador bloc. It became evident that [the latter] . . . were totally isolated, without the support they were expecting from other countries.”

Towards the end of the meeting Ecuador and Bolivia threatened to withdraw from the Commission and leave the meeting. To avoid such a rupture, Argentina offered a face-saving amendment to the resolution about the OAS’ Permanent Council continuing the dialogue on the “core aspects for strengthening” the System, which Ecuador and the other ALBA countries ultimately accepted.

Conclusion

Afterwards Ecuador’s Foreign Minister tried to whitewash his country’s defeat by saying that the resolution accepted its proposal to continue the debate in the future. Before the next meeting of the OAS General Assembly in June 2014, the Foreign Minister said that there would be another meeting of the states parties to the American Convention like the one on March 11th in Guayaquil to discuss these issues. He also hinted at Ecuador’s possible withdrawal from the OAS Commission by saying there was an agreement being negotiated to create a Human Rights Commission of the Union of South American Nations (UNASUR).

Unless there are unexpected changes in regimes or policies in this Hemisphere over the next 14 months, I do not expect Ecuador and its allies will be successful at the June 2014 OAS meeting in gaining acceptance of its proposals to weaken the Inter-American Commission.[4] We will then see if this small group will leave that Commission and form its own, more limited, human rights system.

[1] ALBA is an alternative to the U.S.-sponsored Free Trade Area of the Americas. differing from the latter in that it advocates a socially-oriented trade block rather than one strictly based on the logic of deregulated profit maximization. The only members of ALBA are Ecuador, Bolivia, Venezuela, Nicaragua and three small Caribbean states (Antigua and Barbuda, Dominica and Saint Vincent and the Grenadines.

[2]  This campaign is discussed in press releases from Ecuador’s Foreign Minister.

[3] Such a limitation on financing undoubtedly would result in a reduction of such funding and thus on the work of the Commission.

[4]  I assume that Ecuador has another burden to overcome in attempting to win support for its “reform” proposals. Its credibility within the OAS, I suspect, has been adversely affected by its recent exaggerated, alarmist call for an OAS Consultative Meeting of Foreign Ministers over the alleged United Kingdom threat to invade Ecuador’s London Embassy because of its providing diplomatic asylum in that Embassy to Julian Assange.

Multilateral Human Rights Treaties Ratified by the U.S.

The U.S. is a party to at least 19 significant multilateral human rights treaties.[1]

Three of them have been reviewed in posts regarding their complex and lengthy U.S. ratification process: the Convention Against Torture, the Genocide Convention and the International Covenant on Civil and Political Rights.

Here is a list of the other 16 such treaties (with the dates they generally entered into force and the dates they were ratified by the U.S. or entered into force for the U.S.):

  1. Slavery Convention (3/9/1927 & 3/21/1929);
  2. Protocol Amending the Slavery Convention (12/7/1953 & 3/7/1956);
  3. Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (4/30/1957 & 12/6/1967);
  4. Abolition of Forced Labour [sic] Convention (1/17/1959 & 9/25/1992);
  5. Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour [sic] (11/17/2000 & 11/17/2000);
  6. United Nations Charter (10/24/1945 & 10/24/1945); [2]
  7. First  Geneva Convention for the Amelioration of Condition of Wounded and Sick in Armed Forces in the Field (10/21/1950 & 2/2/1956);
  8. Second Geneva Convention for the Amelioration of Condition of Wounded and Sick and Shipwrecked in Armed Forces at Sea (10/21/1950 & 2/2/1956);
  9. Third Geneva Convention for Treatment of Prisoners of War (10/21/1950 & 2/2/1956);
  10. Fourth Geneva Convention for the Protection of Civilians in Time of War (10/21/1950 & 2/2/1956);
  11. Protocol Relating to the Status of Refugees (10/4/1967 & 11/1/1968);[3]
  12. Convention on the Political Rights of Women (7/7/1954 & 7/7/1976);[4]
  13. International Convention on the Elimination of All Forms of Racial Discrimination (1/4/1969 & 11/20/1994);
  14. Optional Protocol to the Convention on the Rights of the Child (Involvement of Children in Armed Conflicts) (2/12/2002 & 12/23/2002);
  15. Optional Protocol to the Convention on the Rights of the Child (Sale of Children, Child Prostitution and Child Pornography) (1/18/2002 & 12/23/2002); and
  16. Charter of the Organization of American States (12/13/1951 & 12/13/1951).[5]

Merely reviewing the list of these treaties shows the variety of their subjects and the U.S. commitment to international human rights.[6]

[1] See David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process at 136-38 (4th ed. LexisNexis 2009) [Weissbrodt Book].

[2] The U.N. Charter’s Preamble states that the “Peoples of the United Nations [are determined] to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.” Its Article 55 requires the U.N. to promote, among other things, “universal respect for . . . human rights . . . without discrimination. . . .” Its Article 68 called for the establishment of a Commission on Human Rights. It should also be noted that in 1944 the U.S. prepared the initial plan for what became the U.N., and it included an international bill of rights. (Weissbrodt Book at 11-13.)

[3] The U.S. ratification of the Protocol Relating to the Status of Refugees implicitly ratified the Convention Relating to the Status of Refugees that generally entered into force on April 22, 1954. The substance of the two treaties was discussed in an earlier post.

[4] This Convention’s Article I states,”Women shall be entitled to vote in all elections on equal terms with men,without any discrimination.”

[5] The Charter of the OAS proclaimed “the fundamental rights of the individual without distinction as to race, nationality, creed, or sex” (Art. 3(1) and the responsibility of each state in its development to “respect the rights of the individual and the principles of universal morality” (Art. 17). The Charter also established the Inter-American Commission on Human Rights “to promote the observance and protection of human rights” and to prepare an “Inter-American convention on human rights” (Art. 106).

[6] It would be interesting to review the history of the U.S. ratification of these treaties, especially those with long periods before the U.S. became a party. I would be interested in comments by anyone who has done so or by anyone who finds errors in this summary.