U.S. Compliance and the ICCPR

Modern democracy originated largely from the Lockean idea that people formed governments to preserve rights of life, liberty and property.[1] This idea that people were born with natural rights derived from natural law “heavily influenced the thinking of many of the founders of the early American republic.”[2] A belief that people have unalienable rights was used as justification for U.S. independence. The French Declaration of the Rights of Men and the American Bill of Rights addressed and enumerated critical civil rights, providing a vision for nations to be founded upon an ideal of individual liberty. Indeed, the Bill of Rights “established the legal foundation for the protection of human rights in the United States.”[3]

While the realities of eighteenth and nineteenth century America differed greatly from the rhetoric of individual liberty, these ideas sparked discussion and inspired domestic and international reform through early nongovernmental organizations.[4] Despite the mixed legacy of U.S. history concerning human rights as “a country whose practice did not always match its rhetoric,” there has existed a strong domestic tradition of advocacy for the protection of civil rights and civil liberties within the United States.[5]

While the numerous reservations, declarations and understandings undermine U.S. compliance with the Covenant, generally, modern democracies have a strong or growing tradition founded on civil liberties, and thus may be said to be generally in compliance with the ICCPR.

That being said, the Human Rights Committee finds the U.S. to be in violation of its treaty obligations under the Covenant.[6] Principally, the Committee finds the applicability of the Covenant at the national level to be of concern, citing factors that “considerably limit the legal reach and practical relevance of the Covenant, in violation of Art. 2.”[7]

The Committee also discusses issues within the criminal justice system including gross racial disparities within the prison system and racial profiling caused by the promulgation of “stop and frisk” practices by local police departments.[8]

Notably, the commission also expresses concern regarding targeted killings using unmanned vehicles, a practice discussed within Penn State University’s recent screening of World on Trial.[9] Specifically, the Committee mentions articles two, six, and fourteen in discussing its concern.[10]

The Committee remains concerned with the State party’s very broad approach to the definition and geographical scope of “armed conflict,” including the end of hostilities, the unclear interpretation of what constitutes an imminent threat,” who is a combatant or a civilian taking direct part in hostilities, the unclear position on the nexus that should exist between any particular use of lethal force outside areas of active hostilities, as well as the precautionary measures taken to avoid civilian casualties in practice (arts. 2, 6 and 14).[11]

Under the plain language of the ICCPR, the drone killings may constitute arbitrary deprivations of life without judicial oversight if they are found to fall outside the context of armed conflict. However, the Human Rights Committee has clarified that state parties must adhere to their treaty obligations and the ICCPR and humanitarian law are complementary. While many of the Committee’s criticisms have been discussed in context of the World on Trial, perhaps the most novel solution provided is the concept of a individual remedy for victims where a violation of the ICCPR has occurred, including the provisioning of adequate compensation and the establishment of “accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their government.”[12]

 

Tim Joseph is a 3L and a Senior Editor for the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.

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[1] Paul Gordon Lauren. A Human Rights Lens on U.S. History: Human Rights at Home and Human Rights Abroad, in Bringing Human Rights Home at 7.

[2] Id. at 10.

[3] Id. at 11.

[4] Id. (“The formation of the Society for the Relief of Free Negroes Unlawfully Held in Bonadage by the American Quaker and activist Anthony Benzenet and others . . . not only created perhaps the very first human rights nongovernmental organization . . . but in the process served as an example for Thomas Clarkson and other deeply committed campaigners in Britain to establish the much larger and more influential Society for Affecting the Abolition of the Slave Trade.”).

[5] Id. at 35.

[6] Human Rights Committee, Concluding observations on the fourth periodic report of the United States of America, Mar. 10–Mar. 24, 2014, U.N. Doc. CCPR/C/USA/CO/4 (Apr. 23, 2014).

[7] See id. “The Committee regrets that the State party continues to maintain the position that the Covenant does not apply with respect to individuals under its jurisdiction, but outside its territory, despite the interpretation to the contrary of article 2, paragraph 1, supported by the Committee’s established jurisprudence, the jurisprudence of the International Court of Justice and State practice. The Committee further notes that the State party has only limited avenues to ensure that state and local governments respect and implement the Covenant, and that its provisions have been declared to be non-self-executing at the time of ratification. Taken together, these elements considerably limit the legal reach and practical relevance of the Covenant (art. 2).”).

[8] See id. at 3–4.

[9] See id. at 4.

[10] See id.

[11] Id. at 5.

[12] Id. at 5.