Matthew Waxman: UN Human Rights Committee
UN Human Rights Committee
Matthew Waxman, Head of the
U.S. Delegation and Principal Deputy Director, Policy
July 17, 2006
Distinguished Chair, Members of the Committee, my name is Matthew Waxman. I am the Principal Deputy Director of Policy Planning at the Department of State, and I serve as head of the United States delegation appearing today and tomorrow morning before the Human Rights Committee. My delegation is honored to appear before the Human Rights Committee to present the Second and Third Periodic report of the United States concerning its implementation of the International Covenant on Civil and Political Rights. We look forward to an informative and productive exchange of views and perspectives.
As my colleague John Bellinger did when he appeared before the Committee Against Torture just two months ago, I would like to take this opportunity to reiterate the United States Government's commitment to upholding our national and international human rights obligations. One such obligation is that of reporting to this Committee on measures we have taken to give effect to our Covenant obligations. Our report documents a wealth of information updating our Initial Report and reflecting how the rights protected by the Covenant continue to be implemented and protected under U.S. laws, policies and programs. Our commitment is also demonstrated by the prodigious efforts we have gone to in preparing our report, answering your questions and preparing for this hearing.
We have assembled a strong, senior-level expert delegation to appear before you. Representing the United States are members of many of those agencies that are most actively involved in implementing U.S. laws and programs that give life and effect to U.S. obligations under the Covenant. Following my opening remarks, Assistant Attorney General for Civil Rights Wan Kim will make a short introductory statement on behalf of the Department of Justice. In addition to the Departments of State and Justice, our delegation includes representatives from the Department of Homeland Security, the Department of Interior, and the Department of Defense. Other agencies were also actively involved in drafting the U.S. report and in responding to the Committee's questions.
We take pride in the numerous protections available under U.S. laws and policies where the Covenant rights find expression. Indeed we have found this process of review and reflection about the rights embodied in the Covenant extremely helpful as we consider how to redouble our efforts to advance and protect human rights within the United States.
The seriousness with which we have approached our reporting obligations reflects our view that the Covenant is the most important human rights instrument adopted since the UN Charter and the Universal Declaration of Human Rights, as it sets forth a comprehensive body of human rights protections. The United States played a significant role in drafting those foundational instruments.
The United States is equally proud to have actively participated in the process to transform the human rights and fundamental freedoms referred to in those founding instruments into the legally binding treaty obligations elaborated in the Covenant. This is particularly true in light of the parallels between the rights and freedoms protected under the U.S. Constitution, including its Bill of Rights and subsequent amendments, and the human rights and fundamental freedoms protected under the Covenant. Many of the most cherished rights protected by the U.S. Constitution, such as freedom of religion, speech, press, and assembly, the right to trial by jury, the prohibition on unreasonable searches and seizures, and the prohibition on cruel and unusual punishments, also find expression and protection in the Covenant.
As a general matter, the legal framework within the United States to implement the Covenant that was described in the U.S. Initial Report remains essentially unchanged. This is particularly the case in those areas where U.S. laws or practice that so unequivocally prohibit conduct addressed by the Covenant are so firmly settled that there are no noteworthy developments to report.
The U.S. report extensively updates our Initial Report on the major developments related to the human rights and fundamental freedoms protected by the Covenant, including new laws, jurisprudence, policies and programs that expand protections in various areas and provide remedies for violations of the protected rights. Our report also describes a large number of important judicial decisions by U.S. courts -- including a significant number of decisions by the U.S. Supreme Court -- which may be of interest to the Committee.
Of course, the United States has also confronted new challenges as we have sought to respect individual rights in accordance with the Constitution and U.S. law, including our international treaty obligations while also fulfilling our duty to protect the public welfare and national security. In this context, I would like to say a word about the attacks of September 11, 2001, which posed unprecedented challenges for my country. The United States was forced to confront a new threat Â– that of large-scale armed attacks by an international terrorist group directed against U.S. territory. The U.S. overhauled its law enforcement efforts and took critical measures to secure its territory against further attacks. Congress revised many U.S. laws to ensure that they effectively addressed this new threat, and did so in a manner consistent with the Constitution and U.S. law, including our international treaty obligations.
In appearing before the Committee this week, my delegation is well aware of the intense international interest about a wide range of issues relating to the actions of the United States outside of its territory.
As we have explained before, the United States believes that the law of armed conflict Â– international humanitarian law Â– provides the proper legal framework regarding some of the questions raised by the Committee.Â Â
In addition, it is the long-standing view of the United States that the Covenant by its very terms does not apply outside of the territory of a State Party. We are aware of the views of members of this Committee regarding the extraterritorial application of the Covenant, including the Committee's General Comment No. 31. While we have great respect for the Committee's views, as the Committee is aware, the United States has a principled and long-held view that the Covenant applies only to a State Party's territory. It is the long-standing view of my government that applying the basic rules for the interpretation of treaties described in the Vienna Convention on the Law of Treaties leads to the conclusion that the language in Article 2, Pargraph 1, establishes that States Parties are required to respect and ensure the rights in the Covenant only to individuals who are BOTH within the territory of a State Party and subject to its jurisdiction. First, this interpretation is confirmed by the ordinary meaning of the treaty text. Article 2, Paragraph 1, of the Covenant states explicitly that State Parties are required to respect and ensure the rights in the Covenant to all individuals, and I quote, "within its territory and subject to its jurisdiction."
Additionally, this plain meaning of the treaty language is also confirmed by the Covenant's negotiating record. The negotiating record of the Covenant makes clear that the inclusion of the reference to "within its territory" in Article 2(1) was adopted as a result of a proposal made over fifty years ago by U.S. delegate Eleanor Roosevelt Â– specifically to ensure that States Parties would not be obligated to implement the Covenant outside their territories. Mrs. Roosevelt emphasized that the United States was "particularly anxious" that it not assume "an obligation to ensure the rights recognized in it to the citizens of countries under United States occupation" or in what she characterized as "leased territory" outside the territorial boundaries of a State Party. She further explained: "An illustration would be the occupied territories of Germany, Austria and Japan: persons within those countries were subject to the jurisdiction of the occupying States in certain respects, but were outside the scope of legislation of those States." Several delegations spoke out against the proposed U.S. amendment at the time, arguing that a nation should guarantee fundamental rights to its citizens outside of its territorial boundaries as well as within them. They suggested that the "and" in the U.S. amendment should be replaced with the word "or." However, the U.S. amendment to change the text to the current formulation of Article 2 was adopted at the 1950 session by a vote of 8 in favor and 2 opposed, with 5 abstentions. Subsequent efforts to delete the phrase "within its territory" were also defeated. Accordingly, as State Department Legal Adviser Conrad Harper explained to this Committee in 1995, the words "within its territory" had been debated and were added by vote. The clear understanding emerged that such wording limited the State Party's obligations to within its territory. Thus the territorial limitation in Article 2, far from being inconsistent with the object and purpose of the treaty, reflects the clear and expressed intention of those countries that negotiated the instrument.
Accordingly, to those who suggest that the U.S. interpretation regarding the scope of the treaty is new or novel, I must say that this is simply not fair or correct. This has been the U.S. position for more than 55 years.
Although we explained the U.S. interpretation of the territorial scope of the Covenant in great detail in Annex 1 of the report, I have reiterated and expanded upon it here for two reasons. First, because the United States is committed to upholding its Covenant obligations, it is important that the United States state when those obligations apply. Let me be clear: while the U.S. obligations under the Covenant do not apply outside of U.S. territory, it is important to recall that there is a body of both domestic and international law that protects individuals outside U.S. territory. Furthermore, as a matter of domestic U.S. constitutional law, U.S. citizens enjoy a wide range of constitutional protections outside of U.S. territory.
Second, clarifying our position on the scope of the Covenant, we hope, is useful in explaining our responses to this Committee's questions relating to military operations outside the territory of the United States. In keeping with the approach we took in drafting the U.S. report, and in light of our principled and longstanding view on the scope and application of U.S. obligations under the Covenant, the United States has not included in its formal response to the Committee's written questions information regarding activities outside of its territory or governed by the law of armed conflict.
As a courtesy, we provided this Committee with information we provided this May to the Committee Against Torture on these issues. While preserving the legal position of the United States, we seek to be responsive to the Committee's questions. We hope that the Committee will respect our efforts to focus this hearing on the issues falling squarely within the scope of the Covenant.
In returning to matters involving our implementation of the Covenant within the United States, we hope that our Initial Report and our Second and Third Periodic Report have explained in detail the way in which the United States robustly implements its obligations under the Covenant. We cherish our vigorous democratic processesÂ -- which benefit from comprehensive freedoms of speech, assembly and the press -- our strong and independent judicial system, and our well established body of constitutional, statutes and common law designed to protect civil and political rights. Perhaps to a greater extent than in any other country, people in the United States share a culture and history of challenging their government through judicial processes. It is, thus, not a coincidence that many of the authorities referred to in our report stem from litigation and from decisions of the United States Supreme Court and other courts. Indeed, in many cases, the protections afforded by the U.S. Constitution extend beyond the protections afforded by the Covenant. For example, as the United States noted in its Initial Report to the Committee in 1994, "Under the First Amendment, opinions and speech are protected, categorically, without regard to content. Thus, the right to engage in propaganda of war is as protected as the right to advocate pacifism, and the advocacy of hatred as protected as the advocacy of fellowship." Similarly, people in the United States enjoy freedom to exercise their religion that extends beyond the requirements of the Article 18 of the Covenant. In his opening remarks, Assistant Attorney General Wan Kim will briefly address the active measures taken by the Department of Justice to zealously protect constitutional rights within the United States and ensure equal protection for all.
While we work to implement the Covenant at home, the United States has continued its steadfast efforts to promote respect for human rights around the world. In keeping with its own history and a long-standing commitment to promote human rights around the world, the United States devotes considerable resources to assistance to other nations in pursuit of these objectives. In 2006, for example, my government is spending 1.4 billion dollars on programs and activities to advance democracy internationally. A considerable portion of those resources is focused specifically on the promotion of human rights. That is also a record of which we are proud, and a tradition we intend to continue.
As citizens of the United States, we have much to be proud of in our civil rights achievements at home and our efforts in promoting human rights abroad. But as citizens of the United States we also hold ourselves to a very high standard and recognize that there is always more work to be done to safeguard human rights. We also recognize that along with the role the United States plays in the international system come continuingÂ -- indeed, never-endingÂ -- responsibilities. We look forward to continuing our dialogue with the Committee on these important issues.
At this time, I would like to introduce my colleague from the U.S. Department of Justice, Assistant Attorney General for Civil Rights, Wan Kim, who oversees the important work of the Department of Justice in enforcing federal civil rights laws.
Released on July 17, 2006