America the exception: 7 other treaties the U.S. hasn't ratified

http://blog.foreignpolicy.com/posts/2012/05/17/america_the_exception

America the exception: 7 other treaties the U.S. hasn't ratified

Posted By Joshua Keating   Thursday, May 17, 2012

(DO- Korea is partly responsible for the “absence.” The U.S. is not in a good position to ratify Mine Ban Treaty, because of DMZ b/w two Koreas.

To me, the reason of the absence in the CRC is, rather than sovereignty concern, the increasing dominance of conservative values among American politicians. I doubt that CRC is so intrusive that RUD can’t protect the sovereignty of the US from the treaty regime. Take a look at the RUDs submitted by the US to ICCPR. They basically say “The U.S. will comply with ICCPR to the extent that the U.S. Constitution allows.”

When Hillary Clinton expressed her support for CRC, commentators from the conservative said, “She let kids sue their children.” Any qualitative difference from Limbaugh calling slut to Ms. Fluke arguing that birth control should be covered by health insurance? )     

The Obama administration, this month, decided to take up the fairly unrewarding task of pushing for the ratification of the U.N. Convention on the Law of the Sea. In a piece for FP today, James Kraska explains why ratification is long overdue. The treaty, which lays out rules for both military use of the seas and extraction of resources, went into effect in 1994, has been accepted by 161 nations, and was supported by both the Clinton and Bush administrations as well as U.S. Naval commanders. However it will still face a tough fight in Congress where many lawmakers feel it would constitute an unwarranted intrusion on U.S. sovereignty. 

But the Law of the Sea is hardly the only major international agreement waiting for either a U.S. signature, or for Congress to approve ratification. Here's a quick look at a few of the other international treaties and conventions where the United Statates is conspicuous by its absence:

Convention on the Rights of the Child

Entered into force in 1990, signed by U.S. in 1995

Number of states parties: 193 (Fellow non-ratifiers: Somalia, South Sudan*)

Convention on the Elimination of All Forms of Discrimination Against Women

Signed by U.S. in 1980, entered into force in 1981

Number of states parties: 187 (Fellow non-ratifiers: Palau, Iran, Somalia, Sudan, South Sudan, Tonga) 

Mine Ban Treaty

Entered into force in 1999, never signed by U.S.

Number of states parties:159

Convention on the Rights of Persons with Disabilities

Entered into force in 2008, signed by U.S. in 2009.

Number of states parties: 112

Convention on Cluster Munitions

Entered into force in 2010, never signed by U.S.

States parties: 71

Optional Protocol to the Convention against Torture

Entered into force in 2006, never signed by U.S.

Number of states parties: 63

International Convention for the Protection of All Persons from Enforced Disappearance

Entered into force in 2010, never signed by U.S.

Number of states parties: 32 (91 have signed)

One could, of course, make the case that the fact that countries like Iran, North Korea, and Belarus have ratified many of these treaties suggests they don't actually accomplish very much. On the other hand, it doesn't look very good that the United States is considered a likely no vote when it comes to new human rights treaties, and at this point there's enough evidence from other states parties to suggest that ratifying an agreement on say, the rights of children, won't lead to U.N. bureaucrats telling parents how to raise their kids. 

*In fairness to South Sudan, it has only been a country for about 10 months.

Doe v. Chiquita Brands International ; Lawsuit alleging complicity in financing and arming Colombian paramilitary terrorist groups will continue

WEST PALM BEACH, Fla. — A human rights lawsuit brought by Colombian families against banana company Chiquita Brands International for allegedly funding and arming known terrorist organizations in Colombia may continue in U.S. federal court, a judge decided today.

In 2007, after Chiquita pled guilty to federal criminal charges for illegally funding Colombian paramilitary death squads, victims filed a class-action lawsuit alleging that, in order to maintain its profitable control of banana growing regions, Chiquita abetted the paramilitaries in the commission of numerous human rights abuses. Among the plaintiffs who celebrate today’s victory are the families of community organizers, trade union leaders, social activists, and banana workers who were assassinated in the paramilitaries’ campaign of terrorizing civilians.

"We are very pleased with this ruling, and we hope that the U.S. courts do their job so that all the people who were persecuted in the banana-growing region can see justice," said Jane Doe 8 (a pseudonym), whose father was tortured and decapitated by paramilitaries due to his activities as a union leader.

"The court agreed that Chiquita's alleged actions, in providing financing and arms to brutal death squads, violated international human rights law under the federal Alien Tort Statute, and may constitute crimes against humanity," said Marco Simons, Legal Director of EarthRights International (ERI), counsel for the plaintiffs. "The plaintiffs look forward to having their claims heard by a jury," added Agnieszka Fryszman of Cohen Milstein Sellers & Toll, also counsel for the plaintiffs.

Documents obtained under FOIA and released by the National Security Archive in April demonstrate that Chiquita knowingly paid the paramilitaries to provide beneficial security services for its operations, and then covered up the transactions. In addition to the payments, to which it has confessed, Chiquita is alleged to have helped the paramilitaries ship drugs out and smuggle arms in by giving the armed groups free access to its private port at Turbo, on Colombia’s Caribbean coast.

Today’s ruling by Judge Kenneth A. Marra of the U.S. District Court for the Southern District of Florida comes after three years of litigation. The case, Doe v. Chiquita Brands International, No. 08-01916, was originally filed in New Jersey, and was subsequently coordinated with other similar cases as In re Chiquita Brands International Inc. Alien Tort Statute and Shareholder Derivative Litigation in West Palm Beach, Florida. Judge Marra’s decision, which applies to all of the cases, dismisses some of the claims brought by the plaintiffs under New Jersey and Colombia law, but allows human rights claims to proceed under the Alien Tort Statute.

Corporate Liability and the ATS: Kiobel's Impacts Remain Unclear

by Marco Simons

Last fall, I blogged about a decision by the Second Circuit Court of Appeals, in New York, ruling that corporations could not be sued for international human rights abuses under the federal Alien Tort Statute (ATS). This sent shockwaves through the human rights legal community, but its impact is far from determined, especially as other federal appeals courts begin to decide whether to follow or reject Kiobel.

Yesterday, I watched a hearing at the D.C. Circuit Court of Appeals in Doe v. Exxon Mobil, a human rights case involving abuses in Indonesia. Corporate liability is an issue in the appeal, but the judges made it clear that they were not about to follow the Second Circuit's ruling without examining whether it was correct--and they asked a lot of tough questions of both sides. One judge indicated that he thought it made sense that the issue of corporate liability under the ATS should be a question for US domestic law (in which corporations are universally held liable on the same basis as human beings)--and the judges made it clear that they had read the amicus briefs detailing the ways in which the Kiobel analysis was flawed (for example, in supposing that German corporations who partnered with the Nazis were not subjected to punishment after WWII).

Indeed, we still don't know what's happening with the Kiobel decision itself. After the ruling, the plaintiffs filed a petition for rehearing, which asked the panel to reconsider its decision and also asks all of the judges on the court (the "en banc" court) to review what the three-judge panel had done. In late December, the court issued a notice saying that the petition for rehearing had been denied, which would ordinarily signal the end of the process. But the next day, the clerk issued another notice saying that the first notice had been issued in error.

It's hard to know what to make of this, but that won't stop me from hazarding a wild guess: What happens when a petition like this is filed is that the three-judge panel first gets to decide whether they want to reconsider their decision. If they don't, then the rest of the judges can decide if the en banc court should rehear the case. The petition doesn't get granted or denied until the end of this process. What I suspect happened here is that the court erroneously issued an order denying the petition after the three-judge panel said they were not reconsidering their decision, but before the court had decided whether to hear the case en banc. If that's correct, the judges are probably in the process of voting whether to rehear the case en banc.

Meanwhile, the issue continues to come up in other cases. In October, I blogged about the Firestone case, in which the trial court agreed with Kiobel and dismissed the claims. That case is now on appeal to the Seventh Circuit Court of Appeals, which will be the next court to take up the issue. The next year may determine whether Kiobel was an outlier or a seminal case--and conflicts between the federal appeals courts may bring us closer to having the issue decided by the Supreme Court.

Jan 26, 2011

The International Convention for the Protection of All Persons from Enforced Disappearances

The International Convention for the Protection of All Persons from Enforced Disappearances, (priorposts) has entered into force. (hat tip)

Some months after the U.N. General Assembly adopted the multilateral treaty on December 20, 2006, IntLawGrrl Jaya Ramji-Nogales predicted that this effort to address the phenomenon of forced disappearances "may represent the future of international human rights law – enforcement through specificity." Jaya wrote:

The enforced disappearance treaty makes the interesting move of labelling and targeting a certain pattern of human rights violations, thus creating very specific norms that might be used by advocates to overcome the enforcement problems faced by more general human rights treaties. In addition, the Convention’s enforcement committee has the ability to hear urgent claims, to undertake field investigations, and to bring widespread and systematic enforced disappearance to the attention of the General Assembly.

The treaty will be monitored, as Jaya's post indicated, by the U.N. Working Group on Enforced or Involuntary Disappearances.

Among the 5 independent experts who comprise this Working Group is 1 woman,Jasminka Džumhur (left), a gender and human rights specialist from Bosnia and Herzegovina. Chairing the group is Jeremy J. Sarkin, a South African legal expert. Other members are:
Olivier de Frouville, a law professor at l'Université de Montpellier 1 in France; Osman El Hajjé, a law professor and president of the Jinan University Human Rights Centre in Lebanon; and Ariel Dulitzky of Argentina, a clinical law professor at the University of Texas.
Despite her optimism back in 2007, Jaya worried that desired "near-universal ratification" might be hard to come by.

Entry into force, at least, was relatively rapid.

The convention entered into force almost exactly 4 years after being adopted -- on December 23d of last year, 30 days after Iraq became its 20th state party. Today, less than a month later, it now has 21 states parties, Brazil having ratified soon after Iraq. Beside those 2 countries, the other states parties are Albania, Argentina, Bolivia, Burkina Faso, Chile, Cuba, Ecuador, France, Germany, Honduras, Japan, Kazakhstan, Mali, Mexico, Nigeria, Paraguay, Senegal, Spain, and Uruguay.

As pointed out in a U.N. press release respecting the status of the treaty, about 70 other states "have taken the preliminary step of signing it, an expression of their intention to ratify it at some point in the future."
And yet many countries remain fully outside the treaty regime.

Among those that have neither signed nor ratified are 4 of the P-5 members: China, Russia, the United Kingdom, and the United States.

Kimberley Process & Zimbabwe diamonds

http://intlawgrrls.blogspot.com/2010/12/kimberley-process-zimbabwe-diamonds.html

The opening and expansion of global markets has created and exacerbated resource curses, the phenomenon in which natural resource abundance creates governance problems.

Yet international legal scholarship has been slow to recognize the relationship between freer trade and the financing of internal conflicts. My recent article, "Regulating Resource Curses: Institutional Design and Evolution of the Blood Diamond Regime," published earlier this year in the Cardozo Law Review, looks closely at a recent effort to address the global trade in so-called blood diamonds as a potential model for resource curses more generally.

I develop a case study of the Kimberley Process, an international diamond tracking regime (prior IntLawGrrls post), by investigating both the scope of the institution’s regulatory reach as well as the mechanisms by which members promulgate and enforce those regulations.

The article focuses on the unique coalition of nongovernmental organizations, corporations, and states, and on the unusual international arrangement upon which they agreed.
Evidence from the evolution of that institution suggests that although designers may indeed seek to maximize their own interests, what determines whether an institution can regulate effectively, and when it may move beyond the designers’ original interests, are legalization elements of that international institution.

These include:
► The obligations the regime creates;
► The precision with which those obligations are defined; and
► The possible delegation of interpretive and enforcement efforts.
In accumulating and assessing this evidence, my article contends that while skeptics may correctly identify the Kimberley Process’s initial alignment with state and corporate interests, this lightly legalized regime provides an opportunity for substantial progress on human rights. Although the Kimberley Process might appear as an attempt to whitewash state and corporate abuses, over time, the institution can -- even though it need not necessarily -- evolve to address both the rebel-induced and state-inflicted human rights violations related to the diamond trade.

The article acknowledges 2 factors:
► The importance and potential stickiness of initial design choices; and
► The fact that institutional evolution in favor of issue expansion and greater enforcement is merely feasible rather than inevitable.

Thus, this article demonstrates some of the possibilities and limitations of looking to the Kimberley Process as a model for resource curses, and more generally for other areas in which NGOs seek to align state, corporate, and human rights interests.
Developments which occurred after my article went to press suggest that the Kimberley Process has in fact tried to address state-initiated human rights abuses. In so doing, it is facing some substantial state resistance:

► In 2009, the Kimberley Process sanctioned Zimbabwe for bad behavior in the newly discovered Marange diamond fields. Rather than expel Zimbabwe, members suspended its exports. By November 2009, Zimbabwe agreed to a joint work plan to restore compliance by eliminating smuggling, allowing greater monitoring, and reducing military abuses against civilian miners. Despite these promises, Human Rights Watch reported that as late as September of 2010, soldiers still control large portions of these Zimbabwe fields and continue to violate the human rights of the local miners. (credit for 2006 photo by Tsvangiray Mukwazhi/Associated Press of women and men miners at Marange)

► A November 2010 Kimberley Process meeting failed to reach agreement on whether to lift all export limitations, and thus kept the suspension in place. Zimbabwe’s monitor responded by unilaterally certifying millions of diamonds which are already beginning to make their way to market.

►Many speculate that a December 2010 WikiLeaks posting will influence an ongoing Kimberley Process meeting on the Zimbabwe export question. The 2008 U.S. government cable states:

'In a country filled with corrupt schemes, the diamond business in Zimbawbe is one of the dirtiest.'

► Meanwhile, NGOs such as Global Witness and World Vision have stopped short of calling a boycott, but asked consumers and retailers to act more vigilantly in ensuring that diamonds purchased over the holiday season have not funded violence.

If Zimbabwe continues on its current path of non-compliance, or pulls out of the process entirely, many fear the diamond industry will return to the bad practices of the 1990s, in which widespread human rights abuses were common.

Others suggest, however, that targeted pressure campaigns could convince industry networks to reject working with those that trade in these blood diamonds and persuade individual consumers not to purchase them.
Only time will tell. But this article illuminates the institutional mechanisms that will facilitate success or failure on the Zimbabwe problem

Domestic violence as torture

Dr. Mary Hansel

Posted: 16 Aug 2010 02:24 AM PDT

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Recently, reports of detainee abuse in the “war on terror” have dominated the international legal discourse on torture. This focus on detainee abuse, however, should not obscure developments concerning the most common and pervasive form of torture: domestic violence.

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Last summer, a landmark judgment for victims of domestic violence, Opuz v. Turkey (2009), was handed down by the European Court of Human Rights (below right). The Court found the Republic of Turkey liable for torture or inhuman or degrading treatment, under Article 3 of the European Convention on Human Rights, because local officials had failed to prevent and redress the abuse of Nahide Opuz and her mother by Opuz' husband. The Court concluded that the state’s response to the abuse “was manifestly inadequate to the gravity of the offences in question,” in spite of noting that the Turkish authorities “did not remain totally passive” and that “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.” Turkey was ordered to pay Opuz 30,000 euros in compensation for violating Articles 2, 3, and 14of the European Convention.

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For years, human rights bodies have recognized that state failures with respect to domestic violence can amount to torture. An example is General Comment No. 2 - Implementation of article 2 by States parties, issued in 2008 by the Committee Against Torture.

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The ECHR decision in Opuz, however, seems to mark the first time that an international or regional court has held a state accountable for domestic violence, between partners, under a theory of torture — thus establishing the justiciability of the concept. Yet this aspect of the holding has received surprisingly little media attention.

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The lack of coverage may be partially due to the fact that, as IntLawGrrl Stephanie Farrior pointed out in a prior post, theOpuz judgment was also remarkable in other respects, including its acknowledgment of domestic violence as a potential form of gender discrimination.

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Women’s rights advocates have been pushing for greater recognition of domestic violence as a breach of international human rights for decades, and have made enormous jurisprudential strides. Seminal cases such as Velásquez Rodríguez v. Honduras, decided in 1998 by the Inter-American Court of Human Rights (left), helped establish the concept of state accountability for transgressions by non-state actors. Moreover, the traditional view that domestic violence is inherently a family matter beyond the purview of the state has been challenged by cases like Bevacqua and S. v. Bulgaria, rendered by the European Court of Human Rights in 2008.

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As a result, state failures to prevent and redress domestic violence can now beunderstood to violate a range of human rights. The late Rhonda Copelon (right), to whom I have dedicated this post, explained in early 2009:

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The next step in this legal and cultural revolution is to treat gender violence as torture. So far, rape — in war, by the state and where the state does not take measures against it — has been acknowledged in international law as an act of torture. Domestic violence — the most private and most common of all forms of gender violence — is on its way.

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The Opuz holding is an important milestone in this regard.

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The benefits of a “torture” designation are manifold, and have normative as well as practical value in enhancing legal protections for domestic violence victims:

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► These victims of stand to gain from the jus cogens status of the prohibition of torture. It confers a heightened level of international condemnation and sends a clear message that domestic violence is an unqualified violation of human rights.

► Another benefit is the resultant availability of the protections and complaint mechanisms that exist for torture. These can bolster international legal protection for victims of domestic violence.

► A third benefit is the synergistic effect of combining the efforts and resources of advocates focused on feminist issues with those of international human rights generalists.

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As Copelon articulated:

Simply recognizing domestic violence as torture will not solve the problem of domestic violence. But . . . it will help make domestic violence a front burner issue, hastening both the impartiality, adequacy and appropriateness of official responses and the cultural revolution that demands absolute and unconditional condemnation of such violence.

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Accordingly, as the world laments the mounting evidence of torture perpetrated in the “war on terror,” the same sense of indignation and urgency must be extended to the private torture that countless people endure on a daily basis.

All in the Family?

Posted: 06 Aug 2010 03:16 AM PDT

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Last month, the Inter-American Commission on Human Rights issued a groundbreaking decision finding that some aspects of U.S. immigration law violate the American Declaration of the Rights and Duties of Man. Specifically, the Commission held that provisions requiring mandatory deportation of a non-citizen convicted of an "aggravated felony" violate the right to family life, the rights of the child, the right to a fair trial, and the right to due process. TheEuropean Court of Human Rights and the UN Human Rights Committee have grounded their jurisprudence in similar cases on the right to family life, so this decision may expand the scope of human rights protections for non-citizens in the Americas.

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While the grounding of the right to fair immigration proceedings in the right to family life and the rights of the child narrows the scope of protection, it is also, symbolically, a powerful description of the harms inflicted by harsh deportation policies. One of the petitioners in this case, Wayne Smith, moved to the United States from Trinidad and Tobago at the age 10 and had been a lawful permanent resident since 1974. Smith is married to a US citizen who survived breast cancer but lost her health insurance; they have a US citizen daughter. He and his wife owned a small business that employed over 15 people (most of whom were recovering drug addicts). Smith pled guilty to a non-violent drug offense (cocaine possession and attempted distribution) in 1990 (before such a crime was a deportable offense). He was denied a humanitarian waiver and deported in 1998; he returned in 1999 and challenged his deportation order based on a 2001 Supreme Court decision that may have made him eligible for a humanitarian waiver. He lost this challenge, and was deported again; in the meantime, his wife and child struggle to cover basic living expenses.

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Among other arguments before the IACHR, the US government asserted its sovereign right under international law to expel criminal aliens; that the right to family life under Articles V and VI of the American Declaration protects only against state action that intends to harm family life, not secondary consequences of lawful, reasonable state actions (sound familiar?); and my personal favorite -- that because the United States is not party to the Convention on the Rights of the Child, prior IACHR analysis (pertaining to a party to the CRC) on the rights of the child with respect to their parent's deportation proceeding was not relevant.

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The IACHR was not buying any of this. It found that the United States' sovereign rights of expulsion are not absolute, but are subject to a balancing test, drawing from elements laid out by the ECHR and UNHRC, including the strength of family ties, the duration of residence, the hardship of deportation to the family, and the nature and severity of the criminal offense (including age at the time of commission, time span of the offense, and subsequent rehabilitation). While the balancing test is to be applied flexibly, the IACHR emphasized strongly the importance of the best interest of the minor child. The IACHR also rejected the "intent to harm family life" limitation suggested by the US government, and noted that the American Declaration protects against foreseeable consequences that flow from state action.

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Because the petitioners had no opportunity to a present humanitarian defense to deportation or to have rights to family considered and because the best interests of their US citizen children were not considered by the decision maker, the IACHR found a violation of Articles V (right to private and family life), VI (right to family life), and VII (rights of the child) of the American Declaration. Notably, the Commission held that heightened due process protections apply in immigration proceedings that include the sanction of deportation, and that the petitioners' deportations violated Article XXVI (right to a fair trial) and XVII (right to an effective remedy) of the American Declaration. The IACHR recommended that the U.S. allow petitioners to return, reopen their deportation proceedings, and present humanitarian defenses, as well as to allow the immigration judge to weigh these defenses. Finally, the Commission suggested that the U.S implement laws to protect non-citizen residents' right to family life. Now those would be some solid family values.