Social justice advocacy in the United States: what role for international law?

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 9:00 a.m., Thursday, March 29, by its moderator, Steven M. Watt of the American Civil Liberties Union, who introduced the panelists: Aryeh Neier of the Open Society Institute; Clifford Bob of Duquesne University; Monique Harden of Advocates for Environmental Human Rights; and Walter Kalin of the UN Human Rights Committee.*


By Steven M. Watt ([dagger])

More than sixty years ago, the United States spearheaded efforts to pass the Universal Declaration of Human Rights. In direct response to the horrors of World War II, the Universal Declaration guarantees everyone equal and inalienable rights, and reaffirms the inherent dignity and worth of every human being. The Declaration is the foundational document in an intricate network of human rights treaties and other instruments that now covers the full spectrum of civil, political, social, and economic rights, from the fundamental right to be free from torture to the right to adequate health and education.

Although one of the original proponents of the value of human rights, the United States has spent the past several decades exempting itself from the international human rights system. While promoting human rights standards in other countries through its foreign policy, the United States has refused to apply the same standards to its own actions both at home and abroad, and has failed to ratify most human rights treaties. The current administration has actively opposed international human rights standards and mechanisms, most controversially by "un-signing" the treaty establishing the International Criminal Court, refusing to apply the Geneva Conventions to men detained at Guantanamo, and narrowly interpreting its obligations under the Convention Against Torture to justify its wide-scale torture of prisoners in Abu Ghralb and elsewhere.

Today, there is a growing movement within the United States to hold the government accountable to human rights principles and to use international human rights strategies in domestic social justice advocacy. For example, in July 2006, when the UN Human Rights Committee formally considered the U.S. country report on its compliance with the International Covenant on Civil and Political Rights, staff from the Human Rights Program of the American Civil Liberties Union joined with 45 other advocates representing over 145 U.S.-based non-governmental social justice organizations to travel to Geneva to conduct advocacy before the Committee. This compared to a mere five advocates who were present in Geneva in 1992 when the Committee last considered the U.S. report. The growth in part has been inevitable, as nations are increasingly interconnected through commerce, democratization, immigration, and globalization. As Justice Sandra Day O'Connor has said, "[n]o government institution can afford now to ignore the rest of the world." Other reasons for this recent upsurge of interest on the part of U.S. advocates in the human rights framework include the following:


Especially given the backlash against civil rights and civil liberties in the courts and Congress over the past few decades, rights advocates have sought out more protective fights frameworks. International human rights can offer advocates new arguments and new tools to tackle issues effectively when they have hit a brick wall in their domestic litigation. Although in general international standards are entirely consistent with U.S. law, in a number of instances international standards exceed existing U.S. civil liberties and civil rights standards. For example, international standards in the area of race and gender discrimination are more favorable than their domestic counterparts. International standards do not require a showing of purposeful discrimination to find a violation of international anti-discrimination norms. Advocates can cite international law as comparative law to persuade courts and policymakers to expand constitutional protections; opponents of the death penalty have successfully used this approach in recent years. Thus, it is possible to improve U.S. law and policy by using international human rights standards where appropriate.


The international system for the protection of human rights has also developed alternative venues and mechanisms which victims can use to seek redress against the United States for violations of internationally recognized rights. For a include the UN Human Rights Council (formerly the Commission on Human Rights), a number of UN working groups comprised of independent experts (such as the UN Working Group on Arbitrary Detention (UNWGAD)), UN Special Rapporteurs (experts who conduct human rights investigations), and regional human rights bodies such as the Inter-American Commission on Human Rights. Especially where domestic remedies are limited, these venues and mechanisms provide advocates with another place to go--to shine a spotlight on abuses, to seek relief for their clients, to allow their clients to tell their stories, and to collaborate with other activists. Positive decisions from these international bodies have been used to pressure the government, resulting ultimately in changes in U.S. practices and policies that are out of sync with recognized international standards.


Because human rights standards transcend geographical boundaries, they can hold the government accountable wherever it acts. Human rights are not granted by the state, nor can they be taken away by the state. Rather, they inhere as a consequence of one's humanity. This principle has assumed special significance in recent years. For the first time in U.S. history, our government has argued the right to detain even U.S. citizens indefinitely, devoid of constitutional protections when detained and declared to be "enemy combatants." The United States also continues to detain a growing number of people in legal limbo in Guantanamo and elsewhere around the world, arguing that they have no rights under our Constitution and no enforceable rights under international humanitarian or human rights laws. Framing rights in terms of human rights puts ah end to this legal shell game.


In recent years, the language of human rights has motivated a new generation of activists primarily because it advances a much more holistic approach to social justice issues, integrating a wide range of related rights issues, such as poverty and discrimination, immigration and workers' rights. For example, while domestic civil rights laws focus on providing a remedy for discriminatory conduct, the human rights framework imposes an affirmative duty on the government to take concrete steps to identify the potential for discriminatory conduct, prevent its occurrence in the first instance, and promote equality of opportunity so that every member of the community is able to participate fully in economic, cultural, social, and political activities. The proactive approach to social justice issues adopted by human rights doctrine opens the door for...

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