Sunday, March 26, 2017

The U.S. “No-Show”: What It Means for the IACHR and Human Rights at Home

 by Tara Melish, guest blogger, Professor, University of Buffalo Law School, Director of the Buffalo Human Rights Center.

Image1For at least the last 20 years, the U.S. government has followed a consistent policy on engagement with supranational human rights institutions that exercise supervisory jurisdiction over it, like UN treaty bodies and the Inter-American Commission on Human Rights (IACHR). This week the Trump Administration broke with a key part of that policy. In a brief phone call to the headquarters of the Inter-American Commission, the principal human rights organ of the Organization of American States, a State Department official summarily informed the Commission that no U.S. representatives would attend the next day’s scheduled hearings on the U.S.’s domestic human rights record, including the Administration’s recent executive orders on immigration, arbitrary restrictions on migrants’ access to asylum, and the decision to allow the Dakota Access Pipeline to move forward. A feeble reason was given. So feeble was it that the spokesperson acknowledged it would be unacceptable if proffered by any other government of the region. 

U.S. human rights advocates have expressed anger and alarm at the no-show. They have called the move hypocritical, emblematic of the Trump Administration’s utter disregard for human rights and human rights institutions, and a “new low” for U.S. policy. All that is true. But if we are to figure out the best strategies for reversing what we hope is not a “new normal,” it is important that we are honest about what has changed, who specifically is injured by that change, and how we can move toward a better overall policy course.  

In this regard, we should not fall into the trap of painting in too rosy a hue the United States’ longstanding policy of engagement with supranational human rights treaty bodies like the IACHR. That policy has had two reliable, if conflicting, components. The first – the one advocates are focusing on this week -- is a policy of active formal engagement with the institutional processes of the supervisory organ. The U.S. reliably shows up – often with high-level and inter-agency delegations, and sometimes with local as well as federal government interlocutors. Even in situations where ongoing domestic litigation may create the possibility of conflicts, the U.S. still sends delegations to observe, listen, record, and convey assurances of the U.S.’s respect for and commitment to the supervisory organ’s processes.

Rarely, if ever, does the U.S. acknowledge responsibility for human rights misconduct. But it does do something institutionally just as important: It engages the legal claims made against it, and aggressively defends itself from IACHR findings of violation. It vigorously defends its conduct as lawful and justified under regional human rights norms, and regularly challenges the procedural contours of the IACHR’s competence over specific matters. In so doing, it seeks to demonstrate that it takes the IACHR’s work seriously as a supranational institution, that it values civil society access to regional human rights claim-making, and that it defends the process of OAS member states being forced to “justify” their conduct before the IACHR in human rights terms.

This is indeed what human rights institutions like the IACHR are designed to do. Such institutions have many functions, at local, national and supranational levels. But, fundamentally, their purpose is to open and guarantee spaces for direct engagement between identified rights-holders and government agents responsible for protecting said persons’ rights. Such spaces are necessary when rights-based claims can’t be redressed effectively at the domestic level, whether because democratic institutions are weak and inaccessible or institutions don’t problem-solve through a human rights and rights balancing lens. In such cases, as with the immigration, asylum, and water security issues that were to have been discussed at the IACHR this past Tuesday, policy decisions often result in unjustifiable or unjustifiably severe impacts on certain groups. Human rights institutions like the IACHR exist to act as a space through which claims to such abusive or unjustified policymaking can be raised, and direct dialogue on how to redress the policy failures can be fostered with those directly responsible for it. 

And, yet, there is a second reliable component of the U.S.’s longstanding treaty body engagement policy: The U.S. vigorously rejects any obligation to change its policies or practices as a result of formal engagement or the treaty body recommendations that come out of it. For U.S. claimants, then, the very purposes to which the “engagement” component of U.S. policy is outwardly directed are undermined completely by the policy’s second component of no domestic policy impacts.

What, then, are we to make of the implications of this week’s “no show” announcement for U.S. human rights advocacy at home? The actors most severely injured by it are, of course, the IACHR as an institution and the millions of claimant communities throughout the Americas who rely on the IACHR’s convening capacity to bring their governments to the table to address human rights harms. Indeed, the fact that the U.S. has for decades now made a point to be at every hearing, has been an important factor in maintaining the Commission’s institutional credibility and power, and in pushing back against those states that have threatened to withdraw from the process. Without specific enforcement powers or even the ability to issue binding orders, the Commission is powerless if it loses its convening capacity. If the U.S. won’t show up, why should Venezuela, Cuba, Nicaragua or the Dominican Republic?

In this regard, U.S. engagement policy has never been about U.S. claimants. It has been about other governments – the “bad ones” – who might otherwise (like the U.S.) wish to disregard the IACHR’s engagement-promoting processes. The U.S. recognizes that the IACHR has played a vital and historic role in strengthening commitments to democracy and human rights throughout the region, and that strengthening the IACHR’s convening capacity is one of the most effective (and cheapest) ways to promote regional security and stability. The U.S. has therefore sought to offer itself as an “example” of the kind of high-level, interagency engagement the U.S. expects other countries of the Americas to follow.

The “no show” policy decimates this longstanding foreign policy goal. To the extent it becomes a permanent feature of U.S. policy, it removes any pretense of U.S. respect for IACHR engagement, rendering the U.S. indistinguishable from the region’s most rogue of states. For U.S. advocates committed to the regional human rights system as an institution and to our sister communities throughout the Americas, then, the “no show” policy must be reversed. Doing so will entail vigorous advocacy at the State Department level to remind officials of the reasons U.S. treaty body engagement policy has consistently favored “showing up” and engaging on the merits, even when authorities believe those claims to be unmeritorious. These reasons relate to the security and stability of the region as a whole, irrespective of how the U.S. treats internal claims made against it.

Of course, U.S. communities are harmed, too, by the “no show “policy. Yet, because U.S. engagement policy was never designed to dignify them or take their claims seriously as a practical matter, the potential shift in U.S. policy changes their opportunity structure in much more limited ways. Thus, U.S. engagement may be helpful in identifying contact points in government to put domestic political pressure on, or in organizing communities to frame claims as human rights violations, or in understanding U.S. positions on the meaning of distinct norms or processes. But it doesn’t help in getting solutions that can be implemented as part of a problem-solving process of human rights protection.

If the opportunity environment for human rights claimants in the U.S. is to change a very different set of advocacy strategies will be needed. The U.S. disregards human rights at home because it has no incentive structure to address such claims in human rights terms; political disputes are not discussed in human rights language, and political actors face no political consequence for ignoring claims brought against it before supranational treaty bodies like the IACHR. To change this, a much more complex process of building human rights from the bottom up in the U.S. needs to take place. We need to be building and strengthening our domestic human rights commissions, such that local and state actors begin to address issues in the language of human rights. We need to build human rights cities in which our communities, politicians, and the media discuss local issues of justice and equality in human rights terms. And we need to be passing human rights ordinances that require our cities, townships, and counties to routinize human rights methodologies of self-assessment, audit, and justification.

Only when human rights have direct meaning and domestic pull for U.S. political actors, local and national, will U.S. treaty body engagement policy shift in such a way that it matters in practice whether the U.S. is a “no show” or not. Until then, we need to work tirelessly to preserve and strengthen the credibility of supranational human rights systems like the IACHR for regional communities that can use them directly to make domestic change.


[Editors' Note:  This blog is the part of our symposium series on the Administration's failure to participate in the IACHR hearing on March 21.  The other postings, by Deborah Weissman, Sarah Paoletti, and JoAnn Kamuf Ward, respectively, are here, here and here.  Lauren Carasik and Margaret Drew comment here.  Rick Wilson's comments are here.]

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