| |
| META TOPICPARENT | name="SecondPaper" |
|---|
-- NovikaIshar - 17 Apr 2010
International Human Rights Law and the United States | | | Anyway, thanks for the detailed comments, they were very helpful! | |
>
> | -- NovikaIshar - 27 Apr 2010 | | | | |
>
> | Rewrite | | | | |
>
> | American Exceptionalism
The debate on international rule of law is often grounded in the human rights regime. One of the most noticeable complications to this regime is American exceptionalism, the practice of the U.S. government of excluding itself from formalistic adherence, while publicly affirming human rights principles. | | | | |
>
> | What is International Law?
The Universal Declaration of Human Rights evolved from international custom after World War Two. The UDHR is one of the most influential statements of human rights standards, binding all countries regardless of treaty signatory status. The United States has not ratified one half of the UDHR, the International Covenant on Economic, Social, and Cultural Rights (ICESCR), originally drafted and adopted by the Eastern Bloc. The split between the ICESCR and the International Covenant on Civil and Political Rights (ICCPR) was thought to represent the difference in fundamental values between the East and West. Western Europe ratified the ICESCR and the former Eastern Bloc the ICCPR, the United States has not yet ratified the ICESCR. | | | | |
<
< | -- NovikaIshar - 27 Apr 2010 | >
> | America exempts itself from the jurisdiction of the International Court of Justice in any matter considered within the domestic jurisdiction of the nation, as defined by the United States. In Nicaragua v. United States (1984), the US resurrected this policy to avoid paying reparations to the Nicaraguan government. Currently, the U.S. has not ratified the Kyoto Protocol and has unsigned the Rome Statute, exempting it from the International Criminal Court’s jurisdiction. The U.S. and Somalia are the only two countries that haven't ratified the Convention on the Rights of the Child, which prohibits child trafficking and enlistment of child soldiers. The U.S. abstains from the Optional Protocol to the Convention against Torture (which allows for international oversight of the Convention Against Torture, to which the U.S. is a member), and the Convention on the Elimination of All Forms of Discrimination Against Women (protested by Christian right-wing groups who disagree with its provisions on health care and contraception). Each of these treaties contains individual provisions objectionable to domestic interest groups.
Realist Arguments Against International Law Regimes
Critics of the human rights regime point to the lack of U.S. participation as evidence that the current regime is not working or that it can never work because powerful nations will always "opt out," either by not ratifying a treaty, subjecting it to reservations, or not enforcing its provisions. International human rights regimes are largely a tool used by powerful, rich nations to impose their will on smaller nations. These nations disregard the agreements whenever they wish, or simply refuse to sign.
Relativists argue that human rights as proposed in the UDHR largely reflect Western values, thus compliance with these treaties is less politically risky to Western governments than for nations that must force artificial changes in longstanding cultural and societal practices. Sometimes, nations can avoid compliance with these treaties by seeking protection from a powerful nation, usually the U.S., Russia, or China. This undermines the ability of a unified international community to challenge single nations.
American Justifications
The U.S. cites a number of reasons for its position. The government is concerned with being subject to a politically motivated form of international justice. Moreover, the U.S. contends that since many of the principles of international law are already incorporated into the U.S. Constitution itself, international accountability is unnecessary. Thus, while the U.S. recognizes the principles of human rights, it sees itself as beholden only to domestic jurisdiction.
Political will plays a large part in ignoring these issues. The United States suffers no economic or political repercussions from non-participation in these treaties, in fact, non-participation is a boon to politicians representing certain constituencies. Take the CRC. Imposing restrictions on the death penalty will alienate those voters for whom the death penalty is a third rail, especially if the only proffered justification for these changes is an international treaty. In a district controlled by pro-death penalty voters there is some risk to joining the treaty and no benefit to the politician.
The Role of International Law in U.S. Courts
In Roper v. Simmons, 543 U.S. 551 (2005), the Court accepted an amicus brief from international human rights lawyers in a juvenile death penalty case. The majority noted that only the U.S. and Somalia had not ratified the CRC and seven other countries besides the U.S. allowed the execution of juveniles: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the DRC and China. (Roper, 543 U.S. at 577) They concluded that there was a general consensus in moving away from juvenile capital punishment in and reflected that this may be the mark of a decent society. The court overrode federalism concerns, striking down the juvenile death penalty in 25 states that still allowed it.
If courts are willing to acknowledge international laws and customs, then perhaps there is a chance the legislative branch will consider formally adopting them. Such an action would strengthen the credibility of the global human rights regime, which the U.S. should seek to do if it purports to support human rights. As one of the most vocal proponents of human rights, the U.S. could take a strong stand on the enforcement of human rights domestically and abroad; to exempt itself from doing so on an international stage is much more damaging to state security in the long run. Widespread violations of human rights breed resentment and rebellion, and American support for violators of human rights provides a convenient target for dissidents. The rise of anti-American regimes in Iran and Cuba following our support for human rights violators in those countries are prime examples.
Whether human rights regimes can be enforced when the countries participating in them do not take them seriously is another matter. Many countries that have ratified the major international treaties do not guarantee their citizens the right in practice. However, a certain amount of resistance or non-compliance is expected when smaller legal and political entities attempt to form into larger ones. Only, time will tell if the current incarnation of the international legal system is overambitious.
-- JonathanWaisnor - 19 Jun 2010 | | | |
|