This month, the United States submitted an assessment of its human rights record to the UN Human Rights Council as part of the UN’s newest human rights mechanism, the Universal Periodic Review (UPR). Unsurprisingly, its report immediately caught flak from the right and the left. Nationalists and conservatives at the Wall Street Journal and Heritage Foundation complained we should not bother to subject ourselves to scrutiny by states with lesser human rights records and that by doing so we give ammunition to autocrats who can mock our shortcomings. Progressives applauded the administration for participating seriously in a multilateral process but lamented the failure to address a host of human rights deficits.
In our view, the administration’s report perhaps tries too hard to please everyone and in doing so falls short of what it could have achieved if it had taken a more critical and honest approach to some of the more troublesome elements on the human rights agenda. It deserves praise for engaging in serious consultations around the country with critics and victims alike to prepare its findings. Its political instincts, though, were apparently to mute self-criticism in order to forestall attacks from the U.S.-can-do-no-wrong crowd while simultaneously highlighting progress since 2009 as a way to remind voters at home and constituencies abroad that it is different from the Bush administration.
The real test, however, is how this administration will address such ongoing and thorny issues around detention policy, impunity for torture, immigration and protection of civilians caught in conflict. On these matters, the report offers very little.
The UPR is a peer review mechanism through which all UN member states submit an account of its human rights record, engage in dialogue with fellow states and take on recommendations for improvement. The state’s report, however, is not the only document on the table for debate. The UN High Commissioner for Human Rights office submits a compilation of UN-gathered information on each country’s rights record and civil society is allowed to submit its own evaluations which are then presented alongside the government report. The United States will undergo its formal review in November when it will receive queries and recommendations from member states.
Remarkably, the UPR process to date has achieved 100 percent state participation, allowing for the first time an international spotlight on repressive governments that for years have refused to accept scrutiny of their rights performance. Predictably, some states have taken this process more seriously than others. For governments open to addressing human rights at home, the UPR is tackled as an opportunity to continue or start a dialogue with civil society and citizenry at-large about domestic human rights concerns. As one Nigerian human rights defender explained to us a few months ago, the UPR process was the first time he could talk face-to-face with his government about human rights and that dialogue has endured. What’s more, the Geneva dialogue is webcast live so that citizens and the media can tune in to watch their government answer public criticism. For some, this may seem like no great feat but for others, it is unprecedented.
On the downside, human rights advocates complain that the process can be manipulated and has no teeth. For the closed regimes interested more in trying to gain legitimacy before an international body, this is an opportunity to self-aggrandize in front of an international audience and deny domestic problems. Think North Korea asserting that certain states were “trying to place pressure on us for non-existent human rights violations.” However, even after such a laughable declaration, the North Korean delegation exposed itself publicly to criticism from fellow states on the human rights evidence presented by other stakeholders. If one believes that sunshine can be a healthy disinfectant, this type of transparent scrutiny alone is progress. And to those who claim the United States should not be in the same room as such regimes out of concern we will somehow be contaminated by them, fear not: any one with average intelligence can tell the difference between a free society and a gulag.
The State Department led a serious interagency effort to consult with a range of groups to evaluate its human rights shortcomings and accomplishments. To prepare its report, senior government officials from more than a dozen federal agencies spoke to more than 1,000 people in places — New Orleans, El Paso, tribal lands in Arizona, San Francisco, Detroit, Chicago, Birmingham, New York City and Washington, D.C. – where concerns about inequality and discrimination remain high. In doing so it set a good example for the international community that a government ought to listen to its critics to strengthen human rights at home.
The report goes to great lengths to highlight several areas in which the administration considers our form of government and its recent performance particularly laudatory. These range from the bedrock values of freedom of expression, representative democracy, an independent judiciary, freedom of religion and freedom of association to more recent accomplishments like health care reform, protections for the disabled, prosecution of hate crimes, consumer protection and fair pay for women. The overarching message is that our democratic system, imperfect as it is, allows for constant debate and improvement. “Progress is our goal,” it says, “and our expectation thereof is justified by the proven ability of our system of government to deliver the progress our people demand and deserve.” It repeatedly associates our proud constitutional heritage with the universal rights adopted by all states as the global gold standard for human dignity.
The report also admits that while great strides have been made over decades in the realm of political participation and fairness and equality before the law, much remains unaccomplished. To address these problems, it takes on a list of commitments, for example:
- to Muslims, Arabs-Americans, and South Asians, it says the federal government is committed to ongoing efforts to combat discrimination. (President Obama’s strong defense of the right of Muslims to practice religious liberty where they choose will, no doubt, be remarked upon in the review.)
- For women, it pledges support for legislation guaranteeing equal pay for equal work and for Senate action to ratify the Convention on the Elimination of all forms of Discrimination against Women.
- For Native Americans, it acknowledges the unacceptably high disparity in income, education, gender equity and public safety. The administration promises ongoing consultation with tribal officials, increased prosecution of crimes committed on tribal lands and a review of its position on the UN Declaration on Indigenous Rights.
- On housing, it admits that the mortgage crisis has disproportionately affected communities of color and promises stepped-up oversight.
- On education, it recites the various federal laws designed to provide equal education opportunities to all children and promises to address the underlying factors that contribute to the “achievement gap.”
- On law enforcement, it acknowledges that racial and ethnic profiling does not work and is inconsistent with fairness in a justice system and pledges increased enforcement of federal anti-profiling statutes.
- In the area of criminal justice, the report notes that our laws go beyond those guaranteed in international law but that more needs to be done. It promises new regulations to combat prison rape and ongoing efforts to help juvenile offenders but little else to address the persistent problems associated with the death penalty.
In a curious section regarding economic and social rights, the administration is very careful to make no commitments to recognize or guarantee such rights. It talks instead of a “society where citizens are empowered to exercise their rights” to pursue social benefits and a “healthy peacetime life.” The report identifies Franklin Roosevelt’s “freedom from want” not as a matter of constitutional obligation but as a question of social policy provided by law as a way to ensure prosperity is shared. After a brief overview of social programs in the United States, the report briefly discusses improvements to education through the stimulus bill and to health care through the President’s signature Affordable Care Act. On housing, the report recognizes that access to housing and homelessness is a concern to many civil society organizations, particularly to those in New York and New Orleans. But other than a description of Section 8 housing and new funding for homelessness projects, the report offers few prescriptions. In this area, of course, the United States lags behind international law which sets forth rights to education, housing, health, decent work and social security in a treaty which the United States has not ratified. The report breaks no new ground and barely hints at new directions here.
In what will surely get the most scrutiny abroad, the report’s language on national security and human rights leaves much to be desired. The short section reiterates the administration’s early steps to close Guantanamo Bay and determine the best disposition of each detainee; prohibit torture, coercion and water-boarding; order the CIA to close all detention facilities; and direct a review of U.S. transfer policy to ensure that individuals transferred to another country are not subject to torture or ill-treatment. These policies fulfilled campaign promises to correct the counterterrorism excesses of the Bush Administration. But the report offers little insight into how the United States will fulfill its international obligations to address impunity for torture or indefinite and preventative detention, among other pressing violations. As noted by groups like Human Rights First (HRF) and the American Civil Liberties Union (ACLU), it’s time the administration go beyond the rhetorical and “walk the walk,” a reflection of the general disappointment felt in many quarters toward administration policies. This point has been driven home as well by human rights defenders on the front lines who expect the United States to match our well-regarded constitutional respect for civil and political rights with action, both at home and in our dealings abroad.
In sum, the UPR process has provided a space for the administration to reflect on its domestic human rights agenda and demonstrate to the world our ceaseless drive to seek “a more perfect union.” While the report provides a fair overview of the landscape, it does little to delve into the most serious problem areas or to deliver the promised “roadmap for our ongoing work within our democratic system to achieve lasting change.” Now it’s on to Geneva where the U.S. delegation will no doubt face tough questions from other countries and our own NGOs – to be webcast for your viewing pleasure this November.