What You Need to Know About Human Rights

 Article by Brigette Sarabi

“Power concedes nothing without a demand. It never did, and it never will.”
Frederick Douglass

Over the last sixty years, the concept of “human rights” has taken hold throughout the world, and its potential to change life for the better for all Americans is stronger than ever before. Since the end of World War II, the international community has collectively faced the horrors of genocide, war, and tyranny. In response, human rights have been described specifically and in detail, and codified in international law so that people across the planet can understand their rights to freedom and a life free from oppression.

Human rights treaties and other documents lay the groundwork for a world in which every person’s dignity is guaranteed, and no status – including being convicted of a crime – can contradict that. A basic knowledge of human rights is essential for anyone working to guarantee the humane treatment of prisoners and stop the unprecedented growth of the U.S. prison system.

The starting point: the Universal Declaration of Human Rights

The preamble to the United Nations charter, which the U.S. helped write in 1945, says, “We the peoples of the United Nations determined to save succeeding generations from the scourge of war…and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person…”

The general concept of human rights was made more specific with the creation of the Universal Declaration of Human Rights (again, the U.S. helped craft this document). The UN General Assembly adopted this declaration in 1948. The preamble of the declaration reads:

 “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, …”

The Universal Declaration of Human Rights goes on to spell out key rights for all human beings, including the right to equality, freedom from discrimination, and civil and political rights. But the important thing to remember is that the declaration is what is called an “aspirational” document. It defines moral standards that the member countries of the United Nations “aspire” to, or hope to reach; however, there is nothing in the declaration that ensures monitoring or enforcement of human rights standards.

Human rights treaties: the roadmap for human rights

This is where human rights treaties come into the picture. Treaties spell out specific agreements that are meant to be legally binding on every nation that signs them.
There are seven primary international human rights treaties. These treaties are:

As you can see (in bold text above), the U.S. has only ratified three treaties: the Convention Against Torture (CAT), the International Covenant on Civil & Political Rights (ICCPR), and the Convention on the Elimination of All Forms of Racial Discrimination (CERD). All three of these treaties have articles of particular concern to prisoners and detainees.

So what’s the difference between signing and ratifying a treaty? When the U.S. signs a treaty, it is basically agreeing in concept with the treaty, but there is no mechanism for monitoring or enforcement. When the U.S. ratifies a treaty, it incurs an international legal obligation to comply with the terms of the treaty. To prove that it is in compliance, the U.S. must (like every other country that ratifies one of these treaties) submit regular reports to UN committees that oversee these treaties. These committees can then ask questions of the U.S. government, and they can accept “shadow reports” from non-governmental organizations (like Amnesty International or other human rights monitoring groups) that may contain information about human rights in the U.S. that was not included in the official U.S. government report.

For example, the U.S. is currently under review for its compliance with the International Covenant on Civil & Political Rights (ICCPR). Several non-governmental organizations submitted a list of key issues that the international committee should investigate, including many issues related to the treatment of prisoners and the rights of prisoners, both in the U.S. and in U.S. custody in other countries (e.g. Afghanistan and Iraq). The committee can then demand that the U.S. explain its actions in relation to the issues raised by human rights activists.

Can the U.S. be held accountable in international courts for violating human rights outlined in the treaties it has ratified? Well, no. The U.S. has several ways of avoiding accountability for human rights violations. The first is that the U.S. has said that all of these human rights treaties are “not self-executing.” This means that even though our government has ratified the treaty, it cannot be enforced unless separate authorizing legislation is passed by the U.S. Congress. This directly contradicts Article VI of the U.S. Constitution:

“This Constitution and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…”

Article VI, United States Constitution (emphasis added)

In addition to the U.S. rule that human rights treaties are “not self-executing,” there is another way the U.S. gets around its treaty obligations. A country can express a formal “reservation” to specific parts of a treaty. This “reservation” is a unilateral statement by a country saying that it is modifying or excluding part of a treaty. The U.S. has used “reservations” liberally to avoid being held accountable for violating certain human rights standards. For example, Article 16 of the Convention Against Torture (CAT) prohibits cruel, unusual and degrading punishment. The U.S. made a “reservation” that says that we accept this only insofar as “cruel and unusual” is defined under the 8th Amendment of the U.S. Constitution, which is a much narrower definition of what defines cruel and unusual punishment.

So can human rights prevail?

The United States was at one time one of the strongest advocates in the international movement for recognizing human rights. But we’ve withdrawn that support over the years. As a general rule, there has been no effective enforcement for documented U.S. human rights abuses, because the U.S. refuses to accept the authority of international courts when it comes to human rights and U.S. actions. However, while the U.S. often ignores international human rights law, it is very engaged in supporting international law and legal proceedings related to trade and business. This makes it clear that our government is not opposed to international law, but just to international “human rights” law.

If there is one point that human rights activists have made clearly, it is this: it is up to us to make sure that the U.S. respects human rights and abides by its treaty obligations, both in the U.S. and around the world. And while there may be no effective legal remedies when the U.S. violates human rights, the treaty system has put in place a mechanism for documenting U.S. actions on human rights issues and for sharing that information with the world. It may not be enough, but the reporting the U.S. has to do under the treaty system gives activists critical information to use in organizing for human rights here at home. There is still hope that through the work to uphold international human rights standards, we may someday, as citizens of the world, enjoy freedom of speech and belief, and freedom from fear and want.*

*from the preamble of the Universal Declaration of Human Rights

This article originally appeared in the Spring 2006 Issue of Justice Matters.