The Obama administration, emerging as a strong voice on international human rights issues within the UN, has submitted its first appraisal of the US’s own human rights record, admitting to gaps in social and economic areas, pledging to push ratification of international rights conventions that have lingered in limbo in Washington and recognizing that the rights of gay, lesbian, bisexual and transgender people have become a defining issue of the era.
The administration was responding to a requirement of the four-year-old Human Rights Council that every member of the UN must submit to a review of its human rights practices and obligations under national and international agreements once every four years. The process, called the universal periodic review—known in UN shorthand as the UPR—gives each national government the chance to review itself first, to which the assessments of outsiders are later added. The twenty-nine-page report, prepared by the State Department and submitted on August 20 to Navi Pillay, the UN High Commissioner for Human Rights, contains a sweeping overview of diverse current American human rights issues from immigration to housing and healthcare.
In part, it focused on problems faced by Indian and Alaska Native communities, listing as a priority confronting domestic violence, violence against women and other crimes on tribal lands. The report also stated that Attorney General Eric Holder had introduced new measures to improve law enforcement, and created a new position, the National Indian Country Training Coordinator, who will work with prosecutors and law enforcement officers in tribal communities.
The report also mentions concerns about the treatment of minorities, including Arab-Americans and people of South Asia descent.
Turning to conditions in American prisons—a frequent topic of international criticism—the report acknowledges that "many in civil society continue to raise concerns about our nation’s criminal justice system at federal and state levels, including in the areas of capital punishment, juvenile justice, racial profiling, and racial disparities in sentencing." On the issue of sexual abuse within prisons, the report discusses the Department of Justice’s efforts to develop "comprehensive regulations to effectively reduce rape in our nation’s prisons."
In dealing with global issues, the report reaffirms the president’s intention to close the Guantánamo detention center, but gave no definitive schedule, pending decisions on the detainees remaining there. The US report says that the administration "has expressly acknowledged that international law informs the scope of our detention authority," but at the same time has made clear that it has "a national security interest in prosecuting terrorists." The report’s suggestion that military commissions are still in the US mix for dealing with detainees brought immediate criticism. The American Civil Liberties Union took the administration to task for defending the use of commissions "despite fact that military commissions pose significant human and civil rights violations."
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In another statement of great interest outside the United States, the administration said it would comply with international obligations to provide consular access to foreigners in American custody. Specifically, in a break with past practice, the Obama administration said that it will abide by a 2004 decision of the International Court of Justice that held US authorities had violated the rights of Mexicans arrested in the United States by denying them contact with Mexican officials.
The Universal Periodic Review Process
The UN Human Rights Council replaced the discredited UN Human Rights Commission in 2006. The fifty-three-member commission, a body of nations not under UN officials’ control, had been widely criticized for failing or refusing to condemn some of the worst international human rights offenders, while repeatedly singling out Israel for attack in unbalanced resolutions on the Middle East. In order to give the (still unwieldy) forty-seven-member Human Rights Council more of a patina of impartiality and even-handedness in dealing with all 192 UN member nations, the universal periodic review was instituted. Many countries have trouble finding fault with themselves, or with regional neighbors. The United States has tried to list its shortcomings carefully, though a lot of the report is dominated by reflections of American ideals and accounts of legislative progress.
Critics of the tone of the review say it could have articulated a greater commitment to change and correction. The periodic review process "provides an opportunity for the United States to identify human rights violations, develop real solutions and bring our policies in line with international human rights standards," asserted Laura Murphy, director of the ACLU legislative office in Washington. "There is no better time to reflect honestly and exhaustively on our country’s human rights record and to find a path forward toward correcting our faults. The administration should continue to work with all relevant federal agencies and Congress until we can safely say the U.S. is beyond reproach when it comes to human rights."
A periodic review "package" consists of not only the country’s own assessment of how it thinks it has met its obligations under various international and national laws and conventions, but also input from nongovernmental organizations or other interested parties, the office of the high commissioner and finally experts from three other countries—in the case of the United States, those will be Cameroon, France and Japan. The US review will be on the agenda of the Human Rights Council in November. The council has no enforcement powers; it can merely pass resolutions and make statements. But its actions have a large international audience. And this will be the first appearance by the United States in such a review process. The Obama administration joined the Human Rights Council last year, reversing the Bush administration’s hostile policy toward it and global human rights monitoring in general as it affected the United States. In preparing its first review, the Obama administration met with human rights activists and community groups around the country.
Acknowledging the Concerns of the LGBT Community
At the American Jewish Committee’s Jacob Blaustein Institute for the Advancement of Human Rights, director Felice Gaer also had reservations but on the whole took a more positive view of the government report. Gaer, who has served on the UN’s committee on torture and has been part of American delegations to human rights meetings in Geneva, where the Human Rights Council is based, said that she sees the first Obama administration report "as a road map for ongoing work—it doesn’t say we’ve reached perfection." She added that for the Obama administration to make its point that it takes this review seriously, "It would be wonderful for Eric Holder to go over there and defend it."
Gaer noted several passages in the report that are "gutsy" and ground-breaking in the light of two decades of past squeamishness or downright hostility to American exposure to scrutiny on human rights. Among these is the American review’s statement on the rise of gay rights as a central issue in contemporary society and politics. The United States has taken the lead in the UN in this area, recently leading a campaign to have the International Gay and Lesbian Human Rights Commission accredited to the Economic and Social Council over the objections of numerous nations.
"The United States has always been a multi-racial, multi-ethnic, multi-religious society," the Obama review says. "Although we have made great strides, work remains to meet our goal of ensuring equality before the law for all." After ranging over communities that have not shared in that equality over the years, the review then makes this statement: "In each era of our history there tends to be a group whose experience of discrimination illustrates the continuing debate among citizens about how we can build a more fair society. In this era, one such group is LGBT Americans."
Are Americans Entitled to Human Rights?
The American report stops short of entering the global debate over whether economic and social rights should be ranked equally alongside civil and political rights. For decades succeeding American governments, and some human rights organizations, have given priority to civil rights on the theory that democracy, the right to free expression and other such protections are basic to political development and a life without fear. In the US report, failures to provide adequate housing, healthcare or a good education are mentioned, but in a lawyer-like context of legislation and judicial decisions, not as fundamental rights.
But the debate, globally and in the United States, has not ended. One example: in July, the General Assembly (though it has no enforcement power) passed a resolution defining access to safe water and sanitation as a human right. Several American rights and environmental organizations, including the Women’s Environment and Development Organization (WEDO), backed the resolution. The United States did not vote against it, as some feared it would, but abstained, along with Britain, Canada, Australia and thirty-seven other nations.
The lack of American support as the General Assembly prepared to vote drew a blast from Maude Barlow and Wenonah Hauter, leaders of Food & Water Watch in Washington, who noted that cities across the United States and two states, Massachusetts and Pennsylvania, have passed resolutions or acknowledged the right to water.
"This outdated policy puts the American government out of touch with its citizens and its core values as a nation," they said.
