A prior post reviewed the substance of the November 1, 2019, meeting of the U.S. Commission on Unalienable Rights. Now this blogger will set forth his reactions to this meeting.
Reactions to Professor Sunstein
Although I had studied American history many years ago in college and am generally familiar with the subject, I had no knowledge of President Franklin D. Roosevelt’s Second Bill of Rights in his State of the Union Address of 1944 that was prominent in Professor Sunstein’s presentation. Therefore, I searched and found the text and context of that Address [1] which are highlighted below.
1. FDR’s State o the Union Address, 1944
President Roosevelt said he had joined the leaders of the United Kingdom, Russia and China in agreeing that “the one supreme objective for the future” was “security,” meaning “not only physical security which provides safety from attacks by aggressors,” but also “economic security, social security, moral security —in a family of Nations.”
“This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable [sic] political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.” (Emphasis added.)
“As our Nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness.” (Emphasis added.)
“We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. ‘Necessitous men are not free men.’ People who are hungry and out of a job are the stuff of which dictatorships are made.” (Emphasis added.)
“In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all regardless of station, race, or creed. Among these are:” (Emphasis added.)
The right to earn enough to provide adequate food and clothingand recreation;
The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
The right of every family to a decent home;
The right to adequate medical care and the opportunity to achieve and enjoy good health;
The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
The right to a good education.”
“All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.”
“America’s own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for all our citizens. For unless there is security here at home there cannot be lasting peace in the world.”
Blogger’s comments: This set of rights was incorporated into the UDHR under the leadership of the President’s widow, Eleanor Roosevelt, in 1948 and in the International Covenant on Economic, Social and Cultural Rights that was signed by Presdient Jimmy Carter in 1977, but has , to date, not been ratified by the U.S. Senate.[2] Instead, these issues have been subjects of many proposed, and some adopted, federal statutes.
This FDR speech thus implicitly recognized that the U.S. Declaration of Independence did not attempt to set forth a complete list of “unalienable rights” as of July 4, 1776, nor did it foreclose subsequent articulation of additional unalienable rights.
Reactions to Professor Patterson
I was baffled by Patterson’s assertion that freedom was a tripartite idea: (1) Individuals are free to make choices and do what they want to do; (2) individuals are free to exercise power to influence other people; and (3) individuals are free to share in the collective power of groups. In addition, Patterson said, in the western world freedom is one of the principal values of civilization due to Christianity.
Freedom, Patterson said, has no claim to equality, and elites have opposed rights held by the masses. Moreover, although Patterson retains great love and respect for the concept of freedom, he thinks it is a mistake for the West to proclaim it to the world and try to convert others into showing similar reverence. Rhetorically speaking, rights are more effective tools to achieve similar ends.”
Frankly, I do not see how Patterson’s comments have any impact on the unalienable rights discussion. I invite others to help me understand this presentation.
The Committee’s principal concern was “the general lack of security in the Far North Region of the State party, where non-State armed groups have been carrying out terrorist attacks. It is also deeply concerned by the widespread violence being witnessed in the North-West and South-West Regions, where most of the population belongs to the English-speaking community, and by reports that acts of violence leading to the destruction of hospitals, schools and entire villages in those Regions have been committed by non-State armed groups and by members of the State party’s security forces. The Committee is concerned about the serious impact of these situations on the enjoyment of the economic, social and cultural rights of the persons concerned, including women, children, persons with disabilities and older persons.”
As a result, the Committee recommended that Cameroon:
“(a) Take steps, as a matter of urgency, to ensure the enjoyment of [International Covenant on Economic, Social and Cultural Rights] . . . by the people living in areas affected by violence and a lack of security, particularly in the Far North, North-West and South-West Regions;
(b) Conduct thorough, independent investigations into reports of violence and the destruction of hospitals, schools and entire villages, particularly in the North-West and South-West Regions, in order to ensure that those responsible are brought to justice and sentenced to penalties commensurate with the gravity of their acts;
(c) Ensure the effective implementation of the humanitarian assistance plans that have been adopted and of the 2018–2020 national action plan on Security Council resolution 1325 and related resolutions on women and peace and security by, inter alia, establishing effective follow-up mechanisms that provide for the participation of the population groups concerned, including women, and by allocating sufficient financial, human and technical resources for their implementation.
(d) Make every effort to achieve a peaceful solution to the crisis in the North-West and South-West Regions of the country.”
In addition, the Committee made other recommendations on the following subjects: improve applicability of the Covenant on Economic, Social and Cultural Rights in its courts; internally displaced persons; situation of human rights defenders; situation of indigenous peoples; maximum available resources; development projects; corruption; anti-discrimination framework; discrimination on the basis of sexual orientation and gender identify; discrimination against minorities; equality between men and women; right to work; informal sector of the economy; working conditions for women; working conditions of indigenous peoples; trade union rights; right to social security; economic exploitation of children; birth registration; violence against women; poverty reduction and the right to an adequate standard of living; right to food; forced eviction; right to physical and mental health; sexual and reproductive health; right to education; cultural diversity; internet access; ratification of various treaties; ways to improve its implementation of the Covenant.
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[1] U.N. Econ. & Social Council, Comm. on Economic, Social & Cultural Concerns: Concluding Observations on the fourth periodic report of Cameroon (Mar. 23, 2019) G1908134 (1). This Committee has responsibility for monitoring the implementation of the International Covenant on Economic, Social and Cultural Rights that covers (to the full extent of available resources) the right to gain a living by work; to have safe and healthy working conditions; to enjoy trade union rights; to receive social security; to have protection for the family; to possess adequate housing and clothing; to to be free from hunger; to receive health care; to obtain free public education; and to participate in cultural life, creative activity, and scientific research. This treaty entered into force January 3, 1976 and now has 170 states, including Cameroon, that have ratified or acceded to this treaty. U.S. President Jimmy Carter signed this treaty for the U.S. on October 5, 1977, but the U.S. Senate has never ratified it. Therefore, the U.S. is not a party to the treaty. (See Multilateral Human Rights Treaties Signed, But Not Ratified by the U.S., dwkcommentaries.com (Feb. 12, 2013). )
The U.S. State Department has just created the Commission on Unalienable Rights, which Professor Eric Posner sees as a means for the Trump Administration to attempt to redefine international human rights, all of which was discussed in the most recent post to this blog.
A positive reaction to such a mission for the Commission was expressed by Aaron Rhodes, the President of the Forum for Religious Freedom Europe[2] and author of The Debasement of Human Rights.
He starts by alleging that the U.S.has “embraced moral equivalency in international human-rights institutions, and appeared indifferent to struggles for liberty around the world. The foreign-policy establishment has confused defending human rights with ambitious and costly democracy and nation-building projects. Rather than focus on freedom, they’ve sought to impose particular moral values on other societies.” He also claims that the U.S. has “recoiled from the toxic hypocrisy infecting international human-rights organizations.”
Therefore, according to Rhodes, the U.S. “needs to do more than criticize the international human-rights community; it must develop a human-rights doctrine consistent with the universalism of America’s core political principles—a policy to lead the world toward freedom in the face of rising authoritarianism and decaying international human-rights institutions.”
This does not require a redefinition of human rights, he says, but a return to “human rights . . . [as] a shield protecting individual freedom” with ‘natural law’ and ‘natural rights’ as the core foundational principles of human rights.”
Disagreement with Mr. Rhodes was voiced in a letter to the W.S.J. from Bob Alexander of Bedford, MA. He said, “The problem with natural rights is that, contrary to Thomas Jefferson, they are not self-evident at all. Philosophers, theologians, politicians and average citizens have wrestled for centuries over whether rights exist, where they would come from and what they would be. Jefferson himself punted on the question when, instead of justifying the existence of rights, he essentially said ‘we believe it’s obvious.’”
“A better approach is to shift the burden of proof to those who want to violate our life, liberty, property or pursuit of happiness. Instead of requiring me to justify my rights, require others to justify oppressing me.”
Clifford Bob, Professor and Chair of Political Science at Duquesne University, believes that the Commission is “likely to champion the ‘natural family’ and ‘traditional values.” He cites as evidence the Trump Administration’s imposition of a “global gag rule, banning support for international family planning programs that perform, promote or offer information about abortion;” its efforts to purge all U.N. references to “sexual and reproduction health;” and a threatened U.S. veto of a U.N. Security Council resolution on sexual violence in war zones.
According to Bob, the Commission probably will assert that individual self-defense is another unalienable right as a purported basis for opposing international and domestic gun control measures.This possibility was suggested this April at this April’s NRA convention by President Trump’s repudiating the Arms Trade Treaty as a threat to Americans’ Second Amendment freedoms.
Another possible use of unalienable rights could be alleged justification for tougher policies on immigration as impinging on the claimed sovereign right of a people to protect its territorial integrity and established culture.
More generally the Commission, says Bob, will be hostile to economic and cultural rights, as expressed in the International Covenant on Economic, Social and Cultural Rights, which the U.S. has not ratified.[5]
Gay-rights groups fear that the Commission “is intended to narrow the scope of American advocacy” for such rights. As Ty Cobb, global director of the Human Rights Campaign, said, “We sincerely doubt that this commission is being organized to ensure that the human rights of LGBTQ people and others who experience extreme violence and discrimination are being protected to the fullest extent.” This concern was heightened by the State Department’s directive this month that the rainbow flag may not be displayed on a ‘public-facing flagpole’ at U.S. embassies and consulates around the world.
Conclusion
As shown by these two blog posts, the Commission on Unalienable Rights already is sparking intense debate. Intelligent, informed additional comments from readers are invited.
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[1] Rhodes, Pompeo Tries to Rescue the Idea of Human Rights, W.S.J. (June 10, 2019). Rhodes is an American international human rights activist based in Hamburg, Germany and the author of The Debasement of Human Rights: How Politics Sabotage the Ideal of Freedom (Encounter Books, New York), which argues that the fundamental flaw in the Universal Declaration of Human of Rights is mixing freedom rights rooted in natural law—authentic human rights—with “economic and social rights,” which are claims to material support from governments.
[2] The Forum for Religious Freedom Europe is “an independent, secular, civil society formation dedicated to defending the freedom of religion in accordance with international law” that was founded in Vienna, on December 20, 2005. Its mandate is “protection of the right of freedom of thought, conscience, and religion or belief; promotion of basic democratic principles and the Rule of Law; monitoring and documentation of official and public intolerance against religious minorities and advancing public awareness; advocacy with local, national, and international authorities and civil society; promotion of objective approaches to understanding the emergence of new religious movements; [and] supporting the civil society’s ability to pro-actively find solutions to inter-religious conflicts.” In so doing it seeks to promote the vision in Article 18 of the Universal Declaration of Human Rights: “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.”
[4] Bob, Why Trump’s new Commission on Unalienable Rights is likely to upset the human rights community, Wash. Post (June 6, 2019). Professor Bob also is the author of Rights as Weapons: Instruments of Conflict, Tools of Power (Princeton Univ. Press, 2019), which looks at how political forces use rights as rallying cries: naturalizing novel claims as rights inherent in humanity, absolutizing them as trumps over rival interests or community concerns, universalizing them as transcultural and trans-historical, and depoliticizing them as concepts beyond debate. He shows how powerful proponents employ rights as camouflage to cover ulterior motives.
This year Cuba’s human rights record is a subject of its third Universal Periodic Review (UPR) by the U.N. Human Rights Council in Geneva, Switzerland. After reviewing the nature of the UPR process, we will look at the status of Cuba’s pending UPR.[1]
Background
The U.N. Human Rights Council since 2006 has been an important arm of the United Nations in recognizing and helping to enforce international human rights norms in the world.
One of the ways it does so is its UPR of individual U.N. member states. The UPR is universal in that all 193 U.N. members and all human rights norms are reviewed and it is periodic because it done every four years. Such Review is to be “based on objective and reliable information, of the fulfillment by each State of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all States.” This is to be done with “a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned.”
The UPR process involves (a) the state’s submission of a report to the Council; (b) submission of written questions and recommendations to the state from other states and stakeholders (human rights NGO’s, etc.); (c) the U.N. High Commissioner for Human Rights’ summary of U.N. information about the country; (d) a pre-hearing session with the country’s civil society representatives; (e) Questions submitted to the country in advance by the Working Group; (f) the hearing by the Council, (g) the preparation of a draft report on the state by a Council working group, (h) the state’s comments on that report, (i) another hearing before the Council and (j) the Council’s adoption of the final report on the outcome of the UPR.
Prior to the May 16, 2018, hearing on Cuba’s UPR, the following materials have been translated from their original language into five other languages and made available on the Council’s website: (a) Cuba’s National Report to the Council (March 5, 2018); (b) the Council’s Working Group on the Universal Periodic Review’s Summary of Stakeholders’ submissions on Cuba (March 9, 2018); and (c) the U.N. High Commissioner for Human Rights’ Compilation of U.N. Information on Cuba (March 16, 2018).
After discussing its {I) Methodology and consultative process, Cuba’s report provided information about its (II) Legal and institutional framework for the promotion and protection of human rights; (III) Achievements and challenges in the promotion and protection of human rights in Cuba since the previous review[in 2013]; and (IV)Cuba’s cooperation with the United Nations human rights machinery. The National Report asserted the following conclusions:
“153. Despite the conditions of underdevelopment inherited from a colonial and neocolonial past, the United States embargo against its people, the unfair and unequal international economic order in which it has been forced to participate and the destructive impact of hurricanes and other natural phenomena, the Cuban people have managed to make substantial progress, and they have continued to intensify their revolutionary transformation with the goal of building a society that is increasingly just, free, democratic, caring, participatory and prosperous.”
“154. The laws, institutions and functions of the Cuban State are based on the exercise of power by the great majority of workers, intellectuals, professionals and artists. There is a broad and active civil society. Cubans participate effectively and systematically in decision-making processes, not only in the political and electoral context, but also in the economic, social and cultural spheres.”
“ 155. The policy of hostility and blockade of successive United States Governments against Cuba has been a serious obstacle to the full enjoyment of the human rights and fundamental freedoms of Cubans, including their right to life, peace, self-determination and development.”
“156. Cuba cooperates with the non-discriminatory and universally applicable procedures and mechanisms of the United Nations machinery in the field of human rights. It confirms its willingness to continue moving ahead with international cooperation and a genuine dialogue on human rights.”
“ 157. The Cuban people will continue to vindicate and defend the Revolution that has made possible the enjoyment by everyone in the country of their civil, cultural, economic, political and social rights. Cuba will work to make it ever more efficient, productive and sustainable. It will continue to ensure with dignity, modesty and pride the right of its people to self-determination, development and peace, and it will work for the establishment of a just, democratic and equitable international order.”
This densely packed document summarizes many individual submissions and 21 joint submissions by NGO’s.
One of the submissions came from Civil Rights Defenders, a Cuban NGO.[3] It called for the UPR to recommend that (1) Cuba reform its constitution “to include measures that guarantee all the fundamental rights, eliminating the ideological aspects, as well as the mentions of the Communist Party;” (2) Cuba ratify and implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights; (3) the U.N. Special Rapporteur on the Situation of Human Rights Defenders investigate the situation of human rights defenders in Cuba, and carry out the pertinent monitoring and analysis in their future reports; (4) the U.N. appoint a special rapporteur to monitor non-discrimination for all citizens, especially historically vulnerable groups; (5) Cuba eliminate the death penalty; (6) Cuba make torture a crime; (7) Cuba eliminate precautionary pre-criminal measures frequently used against independent journalists, activista and opponents; (8) the U.N. report on arbitrary detentions in Cuba; (9) the Cuban constitution be amended to guarantee the habeas corpus procedure; (10) Cuba guarantee free movement of all Cuban citizens; (11) Cuba guarantee freedom of worship and conscience, expression, association and peaceful assembly; (12) Cuba establish an electoral law guaranteeing free participation of all citizens in the political system.
A submission that was supportive of the Cuban government and system came from Isaac Saney, Co-Chair and National Spokesperson of the Canadian Network On Cuba.
However, just this last weekend the government arrested and detained 24 members of the Ladies in White as they tried to participate in the #TodosMarchamos campaign for the release of political prisoners, or to attend mass.” Other activists with the Youth Front of the Patriotic Union of Cuba (UNPACU) were arrested and detained.[4]
This report in 67 paragraphs summarized comments about Cuba from various U.N. agencies, including recommendations that Cuba ratify certain human rights treaties; make enforced disappearances an autonomous offense; adopt measures to ensure that all arrestees have prompt hearings to limit pretrial detention; adopt an independent means for regular visits to places of detention; guarantee full independence of the judiciary and other branches of government; ensure that women had easy and secure access to justice, including free legal aid and victim protection programs; and prioritize adoption of the draft Family Code.
Of special concern were “allegations of harassment, intimidation and reprisals and, in certain cases, ill-treatment, arrests and violations of the rights to freedom of expression, assembly and peaceful association.” (Para. 28)
A related concern were “reports of intimidation and arrests of journalists working for non-State-run digital media” and Cuba’s not having “ a freedom of information law, defamation remained criminalized and those who produced or circulated publications without indicating the origin or in non-compliance with the rules relating to publication could face imprisonment for up to one year and/or a fine. The authorities of the Cuban Institute of Radio and Television, the regulatory body for radio and television broadcasting, were appointed by the Government. UNESCO encouraged Cuba to foster a more pluralistic and independent media environment in accordance with international standards, to set up an independent broadcast regulator to award and administer broadcast licences, to introduce a freedom of information law in accordance with international standards, and to decriminalize defamation and subsequently incorporate it into the Civil Code, in accordance with international standards.” (Para. 29)
Presumably one of the topics that will come up at the UPR hearing in May is the recent criticism of Cuba by the Council’s Special Rapporteur for Human Rights Defenders, Michel Forst, for Cuba’s “disqualification, reprisals and harassment of human rights defenders.,” especially the Ladies in White. He lamented Cuba’s refusal to recognize the value of the work of human rights defenders and reminded the Cuban government that “dissent and expressing dissent peacefully . . . are basic and necessary rights in a democratic State.”[5]
This criticism did not sit well with Cuba for on March 1, one of Cuba’s diplomats in Geneva called on Forst “ to ensure that in the performance of his duties a special priority be given to objectivity, a vital element for the credibility of his mandate.”
Starting in 2012, the Council added pre-sessions to the UPR process because of difficulties in arranging for presentations by civil societies of the countries under review. Such a pre-session was held for Cuba on April 13, 2018.
At this pre-session, the Cuban Observatory of Human Rights (OCDH), which is based in Madrid, Spain, said the Cuban government had demonstrated little commitment to human rights by its failure to ratify the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights; by its failure to modify certain laws that allow the Government to discriminate for ideological or partisan reasons and by its ignoring most of the recommendations made in the prior UPR.
OCDH also recommended that Cuba establish the independence of the judiciary and create a constitutional guarantees chamber in the Supreme Court.
Other groups in attendance were the Ladies in White, the Cuban Foundation for Human Rights in Cuba, the Women’s Platform, the Hands Network (LGBTI, and the Group of 75.
However, the Cuban government prevented some representatives of Cuban civil society from leaving the island in order to attend this pre-session in Switzerland. They were Juan Antonio Madrazo Luna of the Citizens Committee for Racial Integration (CIR) and Dora Mesa of the Association for the Development and Early Childhood Education (ACDEI).
This blockage by the Cuban government was criticized by 12 permanent missions, including Germany, Czech Republic, Sweden, Belgium, Denmark, United Kingdom, Finland, Ireland, Slovenia and Croatia, The German representative warned that their absence hindered the main mission of the Council and raised many questions about the cooperation of the Cuban Government with the UPR, as a mechanism that seeks to contribute to the resolution of internal issues of countries in the area of human rights. the delegate of Sweden said that the “empty chairs” were a sign of the plight of political activists around the world who put their lives at risk to make visible human rights violations on international stages and warned that his country “has its eyes on the situation of repression that human rights defenders live in Cuba and the actions of the Government.”
Conclusion
A future post will examine the Working Group’s Questions for Cuba in Advance of the Hearing, the Hearing and the final report.
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[1] The Council records indicate that Cuba’s first and second UPRs were conducted in 2009 and 2013. The U.S. has had UPRs in 2011-2012 and 2015, and its third is scheduled for October 2020. A previous post examined the first UPR of the United States In 2011-12.
Recent Cuban statements about its human rights often state or suggest that Cuba’s concept of international human rights is different and broader than the U.S.’s. According to Cuba, its includes economic, social and cultural rights while the U.S.‘s does not.
That is an incorrect assertion or belief.
Modern History of International Human Rights [1]
An examination of the modern history of this subject shows that the United States was the leading architect of what we now know as international human rights, including economic, social and cultural rights.
President Franklin D. Roosevelt
During World War II, U.S. President Franklin D. Roosevelt (FDR) on several occasions spoke about the world’s need for such rights. In his State of the Union Address (or the “Four Freedoms” Speech) to the Congress on January 6, 1941 (before U.S. entry in that war), he said one of these four freedoms was “freedom from want, which . . . means economic understandings which will secure to every nation a healthy peace time life for its inhabitants–everywhere in the world.”
Three years later, in his January 11, 1944, State of the Union Address, Roosevelt expanded this thought with these words:
“We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. ‘Necessitous men are not free men.’ People who are hungry and out of a job are the stuff of which dictators are made.”
“In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all—regardless of station, race or creed.” Among these rights are [he following:
“The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation;”
“The right to earn enough to provide adequate food and clothing and recreation;”
“The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;”
“The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;”
“The right of every family to a decent home;”
“The right to adequate medical care and the opportunity to achieve and enjoy good health;”
The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;”
“The right to a good education.”
“All of these rights spell security. . . . [W]e must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.”
“America’s rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens. For unless there is security here at home there cannot be lasting peace in the world.”
San Francisco Conference
After the end of World War II in 1945, the U.S. was one of the principal leaders in the drafting [2] and the unanimous adoption of the United Nations Charter on June 26, 1945, at the conclusion of the United Nations Conference on International Organization in San Francisco, California. Both the U.S. and Cuba attended this Conference and voted to adopt the Charter. Two days later (June 28th) the U.S. Senate, 89-2, gave its advice and consent to U.S. ratification of that treaty. Its Article 55 provides:
The U.N. “shall promote: higher standards of living, full employment, and conditions of economic and social progress and development; solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” In addition Article 56 provides that all members pledge “to take joint and separate action . . . for the achievement of the purposes set forth in Article 55.”
The United Nations itself came into existence on October 24, 1945; its original members included the U.S. and Cuba.
Eleanor Roosevelt & Universal Declaration
One of the first tasks of the U.N. under its Charter was the preparation of what became the Universal Declaration of Human Rights that was adopted by the U.N. General Assembly on December 10, 1948. (The vote was 48 to 0 with 8 abstentions; both the U.S. and Cuba voted for adoption.) The chair of the committee that drafted this document was Eleanor Roosevelt, the widow of FDR. [3]
The Declaration provides in Article 22:
“Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”
The Declaration also proclaims that everyone has the rights to work and join trade unions (Art. 23), rest and leisure (Art. 24), an adequate standard of living (Art. 25), education (Art. 26) and participate freely in cultural life (Art. 27).
The Declaration, however, is inspirational and aspirational. It is not a treaty that creates rights for individuals and obligations of states. As a result, the U.N. Commission on Human Rights then had the task of preparing a treaty to cover the rights covered by the Declaration.
The Commission’s committee that was assigned this task initially intended to create just one such treaty, but soon decided to prepare two treaties: the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both of which were unanimously adopted by the U.N. General Assembly in December 1966. [4] Together with the Universal Declaration of Human Rights, they are known collectively as the International Bill of Human Rights.
As the first treaty’s title—Civil and Political Rights–suggests, it covers civil and political rights and is reminiscent of the U.S. Bill of Rights.
The second treaty—Economic Social and Cultural Rights–again as its title suggests, has provisions relating to economic, social and cultural rights, but its Article 2(1) states that each party “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. (Emphasis added.)
In summary, the U.S. was a major advocate for, and participant in, creating international economic, social and cultural rights. Cuba, on the other hand, mostly before its Revolution, was not so intimately involved although it voted for adoption of the U.N. Charter, the Universal Declaration and the above two treaties.
U.S. Responses to the International Bill of Rights
Instead, the U.S. through legislative measures has addressed, imperfectly to be sure, the issues addressed by the latter treaty. For example, the U.S. has Social Security, Medicare, Medicaid and the Affordable Care Act. The U.S. has unemployment compensation and workers’ compensation for job-related injuries. It has various forms of public housing.
The U.S. through various foreign aid programs has assisted many other countries in these areas as well.
Cuba Responses to the International Bill of Rights
In 2008 Cuba signed both of these treaties, but has not ratified either of them. In its most recent Universal Periodic Review by the U.N. Human Rights Council, various countries recommended that Cuba join these treaties, but Cuba did not accept these recommendations; instead it merely noted them with the comment that the Cuban “process of ratifying an international instrument is very rigorous.” [5]
Like the U.S., Cuba has chosen to address the rights covered by the ICESCR by legislative measures and policy choices. By all reports, it has been providing free education and health care to its citizens, and Cuba has generously provided such services without cost to other countries. For these efforts, Cuba is to be commended.
Cuba also has asserted that human rights are universal and indivisible and no one has more value than another. That is a debatable proposition for another occasion.
Conclusion
Cuba, like anyone defending his own conduct, “accentuates the positive” in its human rights record—its education and health care at home and abroad. It also “eliminates the negative”—its record on freedom of assembly and speech. Foreign Minister Rodriguez in his recent speech at the U.N. Human Rights Council, for example, said nothing on the latter.
The U.S., like anyone criticizing or attacking another’s conduct, does exactly the reverse. It accentuates the negatives of Cuba’s record while eliminating the positive. With respect to the U.S. record, the U.S. in various ways and fora and in different levels of government investigates and debates our failings and possible solutions.
This rather abstract discussion of concepts of human rights implicitly raises the question of what do the two countries hope to achieve in their bilateral discussions of this subject. Both have admitted that they do not have perfect human rights records. At least the U.S., I believe, would concede that most of the Cuban criticisms of the U.S. record are valid. On the other hand, I am skeptical about Cuba’s willingness to make a similar concession about U.S. criticisms of the island’s human rights.
As a result, I think the real issue in these talks should be whether there is anything that one of the countries can do to help the other country improve its record on particular issues.
For example, the U.S. has allocated funds to improve Cuban human rights and democracy. In recent years those funds have been used (I would say “misused”) by the U.S. Agency for International Development (USAID) to conduct covert or “discreet” programs in Cuba; any and all such programs should be forever abolished. [6] Instead, those funds could be used for joint U.S.-Cuba programs to promote civil society’s involvement on the island.
Cuba, on the other hand, could offer to collaborate with the U.S. to improve health care in emergencies or in under-served parts of the U.S. Minnesota and other parts of the U.S., for instance, are projecting physician shortages as current practitioners retire and as their populations grow older. Cuban physicians could practice in these states.
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[1] See David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process at 11-14, 97-105 (4th ed. LexisNexis 2009).
[2] One of the drafters of the Charter was Bernard Meltzer, one of my professors at the University of Chicago Law School.
[3] A fascinating account of Eleanor Roosevelt’s involvement in the preparation of the Universal Declaration is Mary Ann Glendon, A World Made New, Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House 2001).
[4] The ICCPR was adopted 104 to 0 with 18 member states not voting. The ICESCR was adopted 102 to 0 with 3 abstentions and 17 members not voting. Both the U.S. and Cuba are believed to have voted for both of these treaties. 2 Rights Charters Approved by U.N., N.Y. Times (Dec. 16, 1966),
Since 1996 the European Union (EU) has had an overall strategy about engaging with Cuba that the EU calls its Common Position on Cuba. In early 2014, the EU determined that this Position would not be a precondition to negotiations and thus the two countries held negotiations in April 2014 in Havana and in August 2014 in Brussels. The third round of these negotiations took place in Havana, March 4-5, 2015, with the next round to take place in Brussels on a date to be determined. [1]
After reviewing the EU Common Position on Cuba and the subsequent history of EU-Cuba relations, we will discuss the recent negotiations and their implications.
EU’s Common Position on Cuba [2]
On December 2, 1996, the Council of the European Union [3] adopted its Common Position on Cuba, whose objective was “to encourage a process of [Cuban] transition to pluralist democracy and respect for human rights and fundamental freedoms, as well as a sustainable recovery and improvement in the living standards of the Cuban people. A transition would most likely be peaceful if the present regime were itself to initiate or permit such a process. It is not European Union policy to try to bring about change by coercive measures with the effect of increasing the economic hardship of the Cuban people” (Para. 1).
The Common Position also acknowledged “the tentative economic opening undertaken in Cuba to date” and the EU’s “wish to be Cuba’s partner in the progressive and irreversible opening of the Cuban economy. The [EU] considers that full cooperation with Cuba will depend upon improvements in human rights and political freedom, as indicated by the European Council” (Para. 2). To achieve these objectives, the E.U.
“(a) will intensify the present dialogue with the Cuban authorities and with all sectors of Cuban society in order to promote respect for human rights and real progress towards pluralist democracy;
(b) will seek out opportunities – even more actively than heretofore – to remind the Cuban authorities, both publicly and privately, of fundamental responsibilities regarding human rights, in particular freedom of speech and association;
(c) will encourage the reform of internal legislation concerning political and civil rights, including the Cuban criminal code, and, consequently, the abolition of all political offences, the release of all political prisoners and the ending of the harassment and punishment of dissidents;
(d) will evaluate developments in Cuban internal and foreign policies according to the same standards that apply to [EU] relations with other countries, in particular the ratification and observance of international human rights conventions;
(e) will remain willing in the meantime, through the Member States, to provide ad hoc humanitarian aid, subject to prior agreement regarding distribution; currently applicable measures to ensure distribution through non-governmental organizations, the churches and international organizations will be maintained and, where appropriate, reinforced . . .; [and]
(f) will remain willing, through the Member States, also to carry out focused economic cooperation actions in support of the economic opening being implemented” (Para. 3).
Finally the EU Common Position stated, “As the Cuban authorities make progress towards democracy, the [EU} will lend its support to that process and examine the appropriate use of the means at its disposal for that purpose, including: the intensification of a constructive, result-oriented political dialogue between the [EU] and Cuba; the intensification of cooperation and, in particular, economic cooperation; the deepening of the dialogue with the Cuban authorities, through the appropriate instances, in order to explore further the possibilities for future negotiation of a Cooperation Agreement with Cuba” (Para. 4).
EU-Cuba Relations 1997-2013
The EU suspended ties with Cuba in 2003 after the regime of President Fidel Castro arrested 75 dissidents in 2003 in a fierce crackdown known as Black Spring.
Upon the imprisonment of these political dissidents, the EU imposed stiff sanctions on Cuba in 2003. High-level visits to Cuba were reduced, and Fidel Castro stopped European aid from entering the country. European embassies were encouraged to invite both government officials and political dissidents to cultural events. Thereafter the Cuban government officials declined to attend any such events. Between 2003 and 2005, Cuba and the EU experienced a time of tension and animosity.
In 2005, relations between the EU and Cuba began to warm up again with Spain’s encouragement. The Cuban government released 14 political prisoners in 2005, an encouraging sign for anxious EU members looking for signs of progress. Thereafter the EU suspended sanctions and gradually repaired the economic ties between the two entities. Between 2005 and 2008, Cuba released another six political prisoners, which prompted the EU to remove all sanctions. In addition, the 2008 change of power from Fidel Castro to Raúl Castro produced optimism in the EU regarding future relaxation of tension.
After October 2008, the EU committed around € 60 million for cooperation on post-hurricane reconstruction and rehabilitation, food security, climate change and renewable energy, culture, and education. Cuba also took part in several EU-funded regional programs. The first EU Country Strategy/Paper Indicative Program for Cuba was adopted in May 2010 making available € 20 million between 2011 and 2013 for food security, climate change adaptation, and expertise exchanges. The EU also allocated € 4 million to support the population affected by Hurricane Sandy in November 2012.
In 2010, Spain unsuccessfully tried to muster support for a change in the EU’s Common Position on Cuba. The need for unanimity for such a change was thwarted by Poland and Czech Republic – both former Soviet bloc nations – which have been opposed to shifts in relations with Havana.
EU-Cuba Negotiations, 2014
In early 2014, the Dutch Foreign Minister called on the EU to change its policy toward Havana during a visit to the Caribbean island in January 2014.
The EU then decided that its Common Position on Cuba was not working and would not be used as preconditions for EU negotiations with the country. As a result, the EU Foreign Affairs Council, on February 10, 2014, extended an invitation to Cuba to start negotiations for a future bilateral agreement.
Following Cuba’s acceptance of the invitation, they conducted such negotiations In April and August 2014 on a “Political Dialogue and Cooperation Agreement” which would serve as an enabling framework for closer engagement in support of the on-going reform and modernization process in Cuba. According to the EU, human rights remain at the heart of its policy towards Cuba while seeking to expand relations with all parts of Cuban society, promoting economic and social progress, dynamic dialogue and strengthened respect for fundamental rights.
The April 29-30, 2014, round took place in Havana and focused on establishing modalities and a roadmap for negotiations. An understanding was also reached on the overall structure of the agreement, after which the parties held a first exchange of views on the main chapters and elements.
The August 27-28, 2014, negotiations took place in Brussels. The parties concentrated on the cooperation heading in the proposed agreement with progress on the global structure of the chapter, the issues and sectors to be addressed, as well as on the concrete wording of a number of articles. The EU also made a presentation on the trade chapter that would enhance commercial and investment relations based on joint objectives and established rules and principles of international trade. The political and institutional issues were not addressed.
Christian Leffler
Immediately after the August session, Christian Leffler, the European External Action Service Managing Director for the Americas, stated the parties had made “substantial progress” towards agreeing on a trade and political co-operation treaty and would discuss “more sensitive political questions,” in the next round to be held in Havana.
In addition, the August session prompted a NGO (Civil Rights Defenders) to urge the EU to press Cuba to ratify and implement the International Covenant on Civil and Political Rights [4] and the International Covenant on Economic, Social and Cultural Rights [5], which Cuba had signed in 2008. The group also called for inclusion of Cuban civil society and political opposition in the discussions.
The third round of negotiations was scheduled for early January 2015 in Havana, but on December 8, 2014, Cuba cancelled that round because it said it felt “disrespected” by a March 2014 cultural exhibit in Washington, D.C., which featured photos of Havana by a Lithuanian artist. (The real reason for the suspension is now apparent: the then upcoming December 17th announcement of Cuba-U.S. rapprochement.)
March 2015 Negotiations
The latest round of negotiations was focused on the proposed agreement’s largest and most important chapter: Cooperation and Cooperation Dialogue Sectoral Policies. This included discussion of Political dialogue and issues related to national and government policy: governance, human rights, rule of law, and joint efforts in addressing global challenges.
Before the session, Christian Leffler said such talks with Cuba require “a clear vision, steady nerves and tons of patience” and “ no illusions there will be a sudden radical transformation of Cuban society and government structures.”
Afterwards Leffler said the parties had “progressed substantially in technical legal provisions and the scope of cooperation.” He also said that human rights “was deeply discussed,” but without reaching any concrete agreements, leaving the “finding of solutions” for future meetings without the EU seeking to “impose a model” on Cuba. (In the photograph, the Cuban delegation is on the left; the EU’s on the right.)
Leffler also noted that the recent decision of Cuba and the U.S. to restore normal diplomatic relations promises should aid the EU and Cuba in their negotiations. The EU goal is to advance a “concrete, constructive and honest dialogue, to identify areas of political and economic cooperation.”
Cuba reported making that the parties had made progress on issues such as labor, culture, education, health, agriculture, trade and aid.
Future Negotiations
Although no date has been set for the next round of negotiations, some of the 28 EU members are insisting the EU accelerate the process because of concern the U.S. might progress more quickly with normalization. Spain, which counts Cuba as a key trade partner, has urged fellow members to “give EU businesses the chance to compete with American companies” on the island. And French President Francois Hollande plans to visit Cuba on May 11, the first visit ever by a French president and the first by a European or American leader since the US rapprochement.
The EU is already Cuba’s top foreign investor. EU officials say the proposed accord would give Brussels a bigger role in Havana’s market-oriented reforms, position EU companies for Cuba’s transition to a more open economy and allow the Europe to press for political freedoms on the Communist-ruled island.
Conclusion
Despite protestations to the contrary, the EU and the U.S. are now competing to gain an economic competitive edge in future dealings with Cuba. This should be an additional argument for the U.S. quickly to rescind its designation of Cuba as a “State Sponsor of Terrorism, ” to end the embargo of Cuba and to proceed on the many other issues to effectuate a normalization of relations with the island.
[2] EU Common Position on Cuba (Dec. 2, 1996 ). Before EU governments finally agree on a new piece of Union legislation, they usually reach a sort of pre-agreement called a common position. This can serve as a useful marker showing just how far governments have come towards agreeing the terms of a particularly complex piece of legislation. They have a certain legal weight and are published in the EU’s Official Journal. EU governments must adopt a common position before the European Parliament can begin its second reading of a particular proposal.
[4] The International Covenant on Civil and Political Rights, which is part of what is referenced as the International Bill of Human Rights, establishes international minimum standards for self-determination; legal redress; equality; life, liberty, freedom of movement; fair, public and speedy criminal trials, privacy; freedom of expression, thought, conscience, religion; peaceful assembly; freedom of association (including trade union rights); family; and participation in public affairs.. It also forbids “cruel, inhuman or degrading treatment or punishment; slavery; arbitrary arrest; double jeopardy; and imprisonment for debt. This treaty was approved by the U.N. General Assembly in 1966. Now 168 states, including the U.S., are parties to this treaty. The U.S. signed this treaty in 1977, but did not ratify it until 1992 with many qualifications (five reservations, five understandings, four declarations and a proviso), and the agency responsible for monitoring compliance with the treaty (U.N. Human Rights Committee) has criticized the U.S. for noncompliance with various provisions, including voting.
[5] The International Covenant on Economic, Social and Political Rights, also part of the International Bill of Human Rights, calls for the “progressive realization” of the rights to gain a living by work; to have safe and healthy working conditions; to enjoy trade union rights; to receive social security; to have protection for the family; to have adequate housing and clothing; to be free from hunger; to have health care and free public education; to participate in cultural life, creative activity and scientific research. This treaty was approved by the U.N. General Assembly in 1966, and now 162 states are parties thereto. Compliance is monitored by the U.N. Committee on Economic, Social and Cultural Rights. The U.S. by President Jimmy Carter signed this treaty in 1977, but the U.S. has never ratified it and thus is not a party thereto.
We have seen a prior post‘s list of the 19 significant multilateral human rights treaties that have been ratified by the U.S. Other posts have reviewed the complex and difficult procedures for obtaining U.S. ratification of three of these treaties; the Convention Against Torture, the Genocide Convention and the International Covenant on Civil and Political Rights.
In addition, the U.S. has signed, but not yet ratified, nine other such treaties.[1]
Moreover, only one of these nine treaties was put to a vote in the whole Senate (the Convention on the Rights of People with Disabilities), and on December 4, 2012, it failed by five votes to get the constitutionally necessary two-thirds vote for advice and consent.
Another of these nine treaties (Discrimination Against Women) went to the Senate floor twice (in 1994 and 2002) with favorable recommendations from the Foreign Relations Committee, but was never voted upon by the entire Senate, and thus the resolutions for advice and consent to this treaty died upon adjournment of those congressional sessions.
The Senate Committee held hearings on two of these signed treaties in 1978 (International Covenant on Economic, Social and Cultural Rights and American Convention on Human Rights), but never reported them to the entire Senate. Thus, they died in committee as did Protocol II to the Geneva Conventions, which never received a committee hearing.
Thus, all of these five signed human rights treaties remain on the U.S. Senate Committee on Foreign Relations’ inventory (as of 2/10/2013) of 87 treaties awaiting further action by the Committee and the Senate as a whole.
As an outsider, I believe that these five treaties will be brought to the Senate floor if and only if the Committee’s Chair believes there is a reasonable likelihood that they would receive the constitutionally necessary two-thirds vote for advice and consent. Their past languishing in committee is an indication, in my opinion, that there has not been over the years the necessary two-thirds senatorial support for having these treaties ratified.
The fate of these nine human rights treaties that have been signed, but not ratified, is additional evidence of the complex and difficult procedures for obtaining U.S. ratification of treaties. And it is not only human rights treaties that do not make it to the end of the ratification process as we have seen in posts about the Treaty of the Law of the Sea.
[1] See David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process at 138 (4th ed. LexisNexis 2009).
[2] The American Convention on Human Rights is substantially similar to the International Covenant on Civil and Political Rights and the International Covenant on Economic. Social and Cultural Rights. In addition, it establishes the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
[3] The International Covenant on Economic, Social and Cultural Rights provides that the parties shall take steps for the progressive realization (to the full extent of available resources) of the rights to gain a living by work, to have safe and healthy working conditions, to enjoy trade union rights, to receive social security, to have protection for the family, to possess adequate housing and clothing, to be free from hunger, to receive health care, to obtain free public education and to participate in cultural life, creative activity and scientific research.
[4] Optional Protocol II offers protection to civilians and the wounded in non-international armed conflicts.
[5] This summary of the five listed treaties is based upon their being listed on the Senate Committee on Foreign Relations’ inventory of treaties awaiting Senate action.
[6] The assertion that the first three of these four treaties have not been submitted to the Senate is an inference from their not being on the Senate Foreign Relations Committee’s inventory of treaties awaiting Senate action and their not having been ratified by the U.S. Another possible inference is that they were submitted to, and rejected by the entire Senate, but I have not seen any indication that happened with respect to these three treaties. If anyone knows of the full Senate’s rejection of any of these four treaties, please add a comment to this post. Prior research regarding the Rome Statute, on the other hand, confirms that it has not been submitted to the Senate.
[7] Optional Protocol I offers protection to civilians and the wounded in international armed conflicts.
[8] We have examined the fate of the Rome Statute in the Clinton, George W. Bush and Obama Administrations. Many other posts have discussed the work of the ICC.
The International Covenant on Civil and Political Rights (ICCPR or Covenant) 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 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.[2]
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.
President Jimmy Carter
A year and a half later (October 5, 1977), the U.S. started its process for ratification of this treaty when President Jimmy Carter signed the Covenant on behalf of the U.S. at the U.N. Headquarters in New York City.
On that occasion the President observed that the Covenant was “concerned about the rights of individual human beings and the duties of governments to the people they are created to serve.” Parties to the Covenant, the President added, pledge, “as a matter of law, to refrain from subjecting its own people to arbitrary imprisonment or execution or to cruel or degrading treatment.” In addition, this treaty “recognizes the right of every person to freedom of thought, freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of association, and the rights of peaceful assembly, and the right to emigrate from that country.” [3]
Over four months later (February 23, 1978) the next step in the U.S. process was taken. President Carter submitted the Covenant to the U.S. Senate and requested its advice and consent to ratification with reservations, understandings and declarations.[4] He said,
“While the [U.S.] is a leader in the realization and protection of human rights, it is one of the few large nations that has [sic] not become a party to . . . [this Covenant and the other two U.N. treaties he transmitted]. Our failure to become a party increasingly reflects upon our attainments, and prejudices [U.S.] participation in the development of the international law of human rights. [This Covenant is] . . . based upon the Universal Declaration of Human Rights, in whose conception, formulation and adoption the [U.S.] played a central role. . . . [This Covenant] treats in detail a wide range of civil and political rights. Freedom of speech and thought, participation in government, and others are included which Americans have always considered vital to a free, open and humane society.”
“The great majority of the substantive provisions of [this Covenant] are entirely consistent with the letter and spirit of the [U.S.] Constitution and laws. Wherever a provision is in conflict with [U.S.] law, a reservation, understanding or declaration has been recommended. The Department of Justice concurs in the judgment of the Department of State that, with the inclusion of these reservations, understandings and declarations, there are no constitutional or other legal obstacles to [U.S.] ratification.”
In 1979 the U.S. Senate Committee on Foreign Relations held hearings on the treaty, but took no action. Therefore, the Senate as a whole did not consider the treaty at that time. Later Senator Clairborne Pell said that although “there was significant support for ratification [in 1979] . . . domestic and international events at the end of 1979 [the Soviet invasion of Afghanistan and the Iranian hostage crisis] prevented the Foreign Relations Committee from moving to a vote on the covenant after hearings were completed.” Nor was there a vote on the treaty during the Reagan administration (1981-1989), according to Senator Pell, because that Administration had no interest in ratifying this treaty.
President George H. W. Bush
This presidential attitude changed in August 1991, with the Administration of George H. W. Bush, who requested the Senate to give its advice and consent to ratification of the Covenant subject to proposed reservations, understandings and declarations substantially the same as those proposed by the Carter Administration in 1978.
In response the Senate Foreign Relations Committee held hearings on the treaty in November 1991, and on March 4, 1992, the Committee voted unanimously to report the treaty favorably to the entire Senate for its consideration. Its report stated, “The . . . Covenant . . . is one of the fundamental instruments created by the international community for the global promotion and protection of human rights. . . . In view of the leading role that the [U.S.] plays in the international struggle for human rights, the absence of U.S. ratification of the Covenant is conspicuous and, in the view of many, hypocritical. The Committee believes that ratification will remove doubts about the seriousness of the U.S. commitment to human rights and strengthen the impact of U.S. efforts in the human rights field.”
U.S. Senate Chamber
Soon thereafter (April 2, 1992), the U.S. Senate debated the treaty. In presenting the resolution supporting such action, Senator Pell, the Chairman of the Foreign Relations Committee, said the U.S. “plays a leading role in the international struggle to promote and protect human rights. However, failure to ratify the covenant has blemished our record and cast doubt, in some quarters, about the seriousness of our commitment to human rights. Ratification will reverse this situation. It will demonstrate that our commitment is serious and sincere and strengthen our voice as a champion of human rights. Ratification will enable the [U.S.] to participate in the work of the Human Rights Committee established by the covenant to monitor compliance. The rights guaranteed by the covenant are the cornerstones of a democratic society. By ratifying the covenant now, we have an opportunity to promote democratic rights and freedoms and the rule of law in the former Soviet Republics, Eastern Europe, and other areas where democracy is taking hold.”
With little debate the Senate, by a two-thirds vote of those Senators present, then gave its advice and consent to ratification of the Covenant with the following five reservations, understandings, four declarations and one proviso:
The five reservations (1) preserved the higher protection of free speech and association guaranteed by the U.S. Constitution; (2) reserved the U.S. right to impose the death penalty as punishment for individuals under the age of 18; (3) limited the ban on”cruel, inhuman or degrading treatment or punishment” to the definitions in the Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution; (4) reserved the right to impose a criminal penalty in force at the time of an offense even if a lighter penalty is later prescribed; and (5) reserved the right to treat juveniles as adults in exceptional circumstances.
The five understandings stated that (1) distinctions based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status are permissible if rationally related to a legitimate governmental objective; (2) compensation of victims for unlawful arrest, detention or miscarriage of justice are subject to reasonable requirements of U.S. law; (3) certain practices concerning accused and convicted individuals were preserved; (4) governmental responsibilities to criminal defendants were limited; and (5) the obligation of the U.S.federal government to enforce the Covenant in the federal system were limited.
The four declarations provided that (I) the Covenant was not self-executing; (2) states could not use the Covenant to reduce any higher standards of U.S. law; (3) the U.S. accepted the competence of the U.N. Human Rights Committee to resolve inter-State claims of non-compliance with the treaty; and (4) the right under Article 47’s right of all peoples to enjoy and utilize natural wealth and resources may be exercised only in accordance with international law.
The proviso stated that the Covenant did not require or authorize legislation or other action that was prohibited by the U.S. Constitution as interpreted by the U.S.
On June 5, 1992, President George H.W. Bush signed the U.S. instrument of ratification of the Covenant which, his signing statement said, “articulates the principles inherent in a democracy, including freedom of expression and peaceful assembly, equal protection under the law, and the right to liberty and security. By ratifying the Covenant, the United States is underscoring its commitment to these principles at home and abroad. We hope that our ratification of the Covenant will contribute to the fostering of democracy and human rights throughout the world.”
Three days later (June 8, 1992) that instrument of ratification was filed with the U.N. Secretary-General, thus marking the official date of U.S. ratification. This was nearly 26 years after the Covenant had been approved by the U.N.
Thereafter a number of other states filed objections to the U.S. reservations and understandings. [5]
Now 167 states are parties to the Covenant.
This account of the belated U.S. ratification of an important multilateral human rights treaty shows the complexity of the negotiation and adoption of such treaties and of their ratification by the U.S. There is a similar history of the U.S. ratification of (a) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and (b) the Genocide Convention.
[1] See David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process at 141-43 (4th ed. LexisNexis 2009).
[2] The ICCPR is based upon the Universal Declaration of Human Rights, which was adopted by the U.N. General Assembly on December 10, 1948. The Declaration, however, is only a resolution of the General Assembly. It is not a treaty that imposes international legal obligations on states and thus was seen from the start as a basis for subsequent treaties, including the ICCPR.
[3] Weissbrodt, United States Ratification of the Human Rights Conventions, 63 U. MInn. L. Rev. 35 (1978).
[4] Simultaneously President Carter submitted to the Senate: the International Convention on the Elimination of All Forms for Racial Discrimination, which President Gerald Ford had signed on September 28, 1966, and which the U.S. subsequently ratified on October 21, 1994. Two other human rights treaties also were submitted to the Senate by President Carter on February 23, 1978, but they have not yet been ratified by the U.S.: the International Covenant on Economic, Social and Cultural Rights, which President Carter also had signed on October 5, 1977; and the American Convention on Human Rights, which he had signed on June 1, 1977.
[5] Weissbrodt, 63 U. Minn. L. Rev. at 54-77 (analysis and criticism of U.S. reservations, understandings and declarations).
