No Excuse for US Refusal to Attend InterAmerican Commission Hearing

by guest author Sarah Paoletti, Penn Law

The Inter-American Commission on Human Rights’ 161^st Period of Sessions – which concluded with hearings on the United States – will be marked by the unprecedented failure of the United States government to appear.  Apparently, the Commission received notice from the US Department of State on Monday, March 21^st, that it would likely not attend the hearings scheduled for the next day. 

The US government’s absence was a noted contrast from the Obama Administration’s engagement with the Commission.  Then, the government showed up, and often showed up in force – with representation from the Department of Justice, and other federal agencies implicated by the petition, or with oversight responsibility over the rights at issue.  The Obama Administration took seriously as part of its foreign policy agenda a demonstration of the importance of robust civil society engagement.  Advocates were not without their critiques of the Obama Administration’s participation in Commission’s hearings, especially when representatives made their oft-repeated statements that they did not recognize the Commission’s interpretation of international law or recommendations as binding, or provided testimony that highlighted the disconnect between rights rhetoric and reality, but the government showed up.  They sat and listened while they were critiqued, and answered questions posed to them, as a demonstration for their respect for the Commission and its role in protecting and promoting human rights across the region (even, if not always within the United States).  Jamil Dakwar, Director of the ACLU’s Human Rights Program, noted: “This is another worrying sign that the Trump Administration is not only launching an assault on human rights at home but is also trying to undermine international bodies charged with holding abusive governments accountable.”

In response to a media inquiry, a spokesman for the US Department of State said the U.S. had “tremendous respect” for the IACHR, and excused its absence, saying, “It is not appropriate for the United States to participate in these hearings while litigation on these matters is ongoing in U.S. courts.”  But the first hearing of the day was a merits hearing on behalf of a Japanese-Peruvian who had been interned by the United States government during the period of Japanese internment – where the Commission had already ruled on admissibility, evidencing exhaustion of domestic remedies and no pending litigation.  Another hearing raised issues of U.S. policies and practices that serve to deny migrants access to asylum, issues that predate the Trump Administration.  The other hearing was brought by the Commission to address the recent Executive Orders and DHS Policy Memos.  Certainly, the Executive Order implementing a ban on entry of individuals from 6 Muslim-majority countries and suspending all refugee admissions are subject to litigation, but while some measures taken under the guise of national security are the subject of active litigation, other elements are not. Also at issue was Trump’s Executive Order that allowed drilling to move forward on the Dakota pipeline.  In the past, though, where there has been pending litigation, the U.S. has still showed up.  The government representatives would simply decline comment on specific questions that directly implicated pending litigation.

The government’s absence was noted with dismay by the Commissioners and the advocates present, as well as those watching from afar.  The fear is that the U.S. government’s failure to show is emblematic of its disregard for human rights, and specifically the rights of migrants, environmental and indigenous rights, and its disrespect for international human rights institutions.  And one is left wondering, would it have been worse if the US had appeared?

[Editors' Note:  This post is the first in a series of perspectives on the US government's failure to participate in the IACHR hearing on Tuesday, March 21.  The second post, from Professor Deborah Weissman, is here.  The third post, from JoAnn Kamuf Ward, is here.  Professor Johanna Kalb comments here and commentary from Margaret Drew and Lauren Carasik is here.  Tara Melish comments here, and Rick Wilson's comments are here.]