“to promote the adoption of measures at the national, regional and international levels to ensure the promotion and protection of the right to freedom of religion or belief;
to identify existing and emerging obstacles to the enjoyment of the right to freedom of religion or belief and present recommendations on ways and means to overcome such obstacles;
to continue her/his efforts to examine incidents and governmental actions that are incompatible with the provisions of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and to recommend remedial measures as appropriate; and
to continue to apply a gender perspective, inter alia, through the identification of gender-specific abuses, in the reporting process, including in information collection and in recommendations.”
In order to fulfill this mandate, the Special Rapporteur transmits urgent appeals and letters of allegation to States with regard to cases that represent infringements of, or impediments to, the exercise of the right to freedom of religion and belief; undertakes fact-finding country visits; and submits annual reports to the U.N. Human Rights Council and the U.N. General Assembly, on the activities, trends and methods of work.
Freedom to adopt, change or renounce a religion or belief
Freedom from coercion
The right to manifest one’s religion or belief
a. Freedom to worship
b. Places of worship
c. Religious symbols
d. Observance of holidays and days of rest
e. Appointing clergy
f. Teaching and disseminating materials (including missionary activity)
g. The right of parents to ensure the religious and moral education of their children
h. Registration
i. Communicate with individuals and communities on religious matters at the national and international level
j. Establish and maintain charitable and humanitarian institutions/solicit and receive funding
k. Conscientious objection
II. Discrimination
Discrimination on the basis of religion or belief/inter-religious discrimination/tolerance
State religion
III. Vulnerable groups
Women
Persons deprived of their liberty
Refugees
Children
Minorities
Migrant workers
IV. Intersection of freedom of religion or belief with other human rights
Freedom of expression including questions related to religious conflicts, religious intolerance and extremism
Right to life, right to liberty
Prohibition on torture and other cruel, inhuman or degrading treatment or punishment
V. Cross-cutting issues
Derogation
Limitation
Legislative issues
Defenders of freedom of religion or belief and non-governmental organizations
This position was created in 1986 by the U.N. Commission on Human Rights and in 2013 was continued by the Commission’s successor, the U.N. Human Rights Council.
Heiner Bielefeldt
The current Special Rapporteur is Mr. Heiner Bielefeldt, the Professor of Human Rights and Human Rights Politics at the University of Erlangen-Nürnberg, Germany. From 2003 to 2009, he was the Director of Germany’s National Human Rights Institution. Mr. Bielefeldt’s research interests include various interdisciplinary facets of human rights theory and practice, with a focus on freedom of religion or belief.
Last month (July 2014) the Special Rapporteur completed a visit to Vietnam and issued a statement about his visit. He said he had heard quite a number of allegations in that country of harassment, house arrests, imprisonment, destruction of houses of worship, beatings and pressuring people to join official religions and renounce their own. He said he could not make full assessment of individual cases, but concluded “there are serious violations of freedom of religion or belief taking place in this country.” (Assoc. Press, UN Official: Vietnam Violates Religious Freedom, N.Y. Times (July 31, 2014).[2]
[1] The U.N. Human Rights Council was the subject of an earlier post.
[2] The U.S. Commission on International Religious Freedom recent report designated Vietnam as a “country of particular concern” (CPC) or one that has engaged in or tolerated “particularly severe” violations of religious freedom. The Commission also recommended that the State Department make the same designation, but the Department’s recent report did not do so even though it said, “Many requests by religious groups for registration [in Vietnam] remained unanswered or were denied . . . . Many unregistered religious groups reported abuses, with a particularly high number of reports coming from the Central and Northwest Highlands. These included allegations of beatings, arrests, detentions, and criminal convictions.”
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).
The U.N. Human Rights Council was created in 2006 by the U.N. General Assembly. It is “responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner.” To that end, it is also responsible for addressing “situations of violations of human rights, including gross and systematic violations” and making “recommendations on them.” The Council is guided by “the principles of universality, impartiality, objectivity and non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development.”
To fulfill its mission, the Council has adopted at least four procedures or mechanisms.
One set of procedures is known as “Special Procedures,” which include special rapporteurs, special representatives, independent experts and working groups that monitor, examine, advise and publicly report on thematic issues or human rights situations in specific countries. One example is the Special Rapporteur on the Independence of Judges and Lawyers that was discussed in a prior post.
Another is a Complaint Procedure, which allow individuals and organizations to bring human rights violations to the attention of the Council.
Yet another is the Universal Periodic Review (UPR) mechanism which serves to assess the human rights situations in all 193 U.N. members. (The UPR process will be reviewed in a subsequent post about the Council’s UPR of the U.S.)
The Council also has established an Advisory Committee, which serves as the Council’s “think tank” providing it with expertise and advice on thematic human rights issues. In February 2012 this Committee adopted recommendations to the Council regarding (1) the rights of peasants, (2) the right to food, (3) human rights and international solidarity, (4) the right of peoples to peace, (5) terrorist hostage-taking, (6) promotion of human rights and fundamental freedoms through traditional values of humankind, and (7) enhancement of international cooperation in the field of human rights.
In May 2011, pursuant to the General Assembly resolution establishing the Council, a special working group reported on its review of the Council’s first five years. The report made modest proposed changes to the Council’s procedures and mechanisms. The U.S. expressed its disappointment in the report, with the U.S. stating the report resulted from “a process designed to be a race to the bottom.” According to the U.S., there needed to be “greater scrutiny of the human rights record of countries that offer themselves for election to the Council” and enhancement of the Council’s ability to take on country situations in a variety of formats, not limited to resolutions. Moreover, said the U.S., the Council’s most egregious flaw was its criticism of only one country, Israel.
The Council, whose office and meetings are in Geneva, Switzerland, has 47 member states that are chosen from U.N. member states for three-year terms by the U.N. General Assembly. (From 2006 through 2008 the U.S. in the George W. Bush Administration did not participate in the Council’s activities. Since then, however, the Obama Administration has done so, and the U.S. was elected to the Council in 2009 for a term ending at the end of 2012.)
The Council replaced the U.N. Commission on Human Rights that was established by the U.N. Economic and Social Council in 1946. The Commission’s first major task, under the Chairmanship of Eleanor Roosevelt, was the drafting of the Universal Declaration of Human Rights that was adopted by the U.N. General Assembly in 1948. During its first 20 years the Commission focused on establishing international human rights standards in various multilateral treaties. The Commission eventually had similar responsibilities and functions as the Council, but became subject to severe criticism for being too friendly with regimes that were violators of human rights.
As mentioned in a prior post, on January 19, 2012, two human rights organizations–the Center for Constitutional Rights of New York City and Berlin’s European Center for Constitutional and Human Rights--alleged that U.S. and Spanish senior governmental officials improperly have attempted to interfere with the Spanish judges handling three criminal cases against U.S. officials. These allegations were in a complaint the organizations filed with the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers.
Now we examine the specifics of these allegations. Afterwards we will take a quick look at the role and function of the Special Rapporteur to understand the context in which these accusations are being made.
The Allegations
The complaint to the Special Rapporteur alleges that U.S. officials have breached the right to an independent and impartial judiciary by interfering with the exclusive authority of the Spanish judiciary to determine these cases without restrictions, improper influences, pressures, threats or interference. These actions by U.S. officials allegedly sought to deprive victims of serious crimes, including torture, of the right to an impartial proceeding and the right to redress.
With respect to Spanish officials, it is alleged that they improperly cooperated with the U.S. officials and that the Spanish prosecutors breached their legal duty to act fairly and impartially.
The factual basis for these allegations is a collection of 28 U.S. diplomatic cables from the period July 2004 through May 2009 that subsequently were put into the public record by WikiLeaks. The following, I believe, fairly summarizes the complaint’s account of these cables:
The U.S. officials who were involved in these communications were the U.S. Ambassador to Spain, two Republican U.S. Senators (Judd Gregg of New Hampshire and Mel Martinez of Florida) and U.S. diplomatic staff in Spain.
The Spanish officials who were so involved held various positions in the government’s executive branch, including the Vice President, the Foreign Minister, the Attorney General and the Chief Prosecutor along with lower-level people in the Spanish government.
Very significantly, in my opinion, there is no mention in the complaint of U.S. or Spanish officials’ allegedly communicating directly with the Spanish judges who were involved in these three cases in any way. There is no allegation that the U.S. or Spain threatened the judges or tried to bribe them to halt the cases. Nor is there any claim that the Spanish officials had improper and ex parte communications with the judges.
In many of these communications, the Spanish officials stressed that the Spanish judiciary was independent of the government, and I think that the previous summaries of these three cases demonstrates that independence. The complaint to the Special Rapporteur, however, argues, in my opinion, that these Spanish statements show that all participants were aware that their communications were improper. I do not find this argument persuasive.
The substance of the communications was the U.S. extreme displeasure with the Spanish courts’ processing these cases and the potential adverse consequences for the overall U.S.-Spain relationship from continuation of the cases. The U.S. kept pressing the Spanish officials to try to stop these cases, but the consistent Spanish response was their inability to control that decision because the courts were independent.
Moreover, as we have seen in prior posts, the three cases continue to be processed by the Spanish courts. The cases are not over.
I am not an expert on U.S. or other countries’ diplomatic practices, but these communications are what I would expect to occur when two countries have a problem. Diplomats and other officials for one country express their displeasure with something the other country is doing and try to persuade that other country to change its behavior.
Therefore, although I regard myself as an international human rights advocate and want these cases against U.S. officials to proceed on the merits and although I have great respect for the two human rights organization pressing this complaint, I am not persuaded there was improper conduct by the U.S. or Spain as alleged in the complaint. Here especially I invite comments indicating I may have missed or misinterpreted some of these diplomatic cables or their significance for this complaint to the Special Rapporteur.
In a subsequent post I will discuss the Spanish criminal charges now pending against Judge Baltasar Garzon, who was a judge in two of these cases against U.S. officials and whether the charges against the Judge are related to the alleged U.S. and Spanish improper attempts to interfere with the Spanish judiciary.
The Special Rapporteur on the Independence of Judges and Lawyers
In 1994 the U.N. Commission on Human Rights created this position after it noted “the increasing frequency of attacks on the independence of judges, lawyers and court officials and the link which exists between the weakening of safeguards for the judiciary and lawyers and the gravity and frequency of violations of human rights.” The initial period for this position was three years, but it has been extended by the Commission and since 2006 by its successor, the U.N. Human Rights Council.
This Special Rapporteur, among other duties, is required to “inquire into any substantial allegations transmitted to him or her and to report his or her conclusions and recommendations thereon.”
This Special Rapporteur is one example of the 33 thematic mandates of the Human Rights Council. They constitute one way that the Council seeks “to examine, monitor, advise and publicly report on . . . major phenomena of human rights violations worldwide.”
The term “rapporteur,” by the way, is a French term that is used in international and European legal and political contexts to refer to a person appointed by a deliberative body to investigate an issue or a situation.
Conclusion
The complaint to the Special Rapporteur and the Spanish criminal cases against U.S. officials and against Judge Garzon are important unfinished matters. We all should make special efforts to stay abreast of further developments, especially since the U.S. media does not provide persistent coverage of these matters.
