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28. U.S. observations on Human Rights Committee General Comment 31 (Dec. 27, 2007)

Observations by the United States of America
on Human Rights Committee General Comment 31:
Nature of the General Legal Obligation Imposed on States Parties to the Covenant


1. The United States Government takes this opportunity to respond to General Comment 31, adopted by the Human Rights Committee (the “Committee”) on March 29, 2004. The United States of America appreciates the hard work undertaken by the Committee and is pleased to convey these Observations related to certain opinions and recommendations expressed in General Comment 31.

2. While there are a substantial number of legal statements and conclusions in that General Comment with which the United States does not agree, these Observations address a select number of subjects about which the United States holds fundamentally different views from those apparently held by the Committee. In this paper, the United States sets forth in summary fashion a number of observations concerning this General Comment, without addressing all of the issues or statements in the General Comment with which it may not agree.

I. Scope of the ICCPR

3. General Comment 31, paragraph 10, states that “States Parties are required by article 2, paragraph 1, [of the ICCPR] to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State Party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.” (Emphases added.)

4. This interpretation, which dispenses with the well-established rules of treaty interpretation, is inconsistent with the plain text of the Covenant as well as its negotiating history.[1] The actual wording of ICCPR Art. 2(1) is as follows: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant . . . .” (Emphasis added.) Based on the plain and ordinary meaning of its text, this article establishes that States Parties are required to ensure the rights in the Covenant only to individuals who are both within the territory of a State Party and subject to that State Party’s sovereign authority. Without any analysis or reasoning to support its view, the Committee’s interpretation would have the effect of transforming the “and” in Article 2(1) into an “or.”

5. Article 2(1) is a foundational provision of the Covenant, as it establishes its scope of application. It is lamentable that the General Comment treats this provision in such a cavalier and inconsistent manner, including the following: “all individuals in their territory and subject to their jurisdiction” (paragraph 3); “all persons who may be within their territory and to all persons subject to their jurisdiction” (paragraph 10); “persons, who may find themselves in the territory or subject to the jurisdiction of the State Party” (paragraph 10); and, “all persons in their territory and all persons under their control” (paragraph 12). The General Comment’s demonstrated indifference to the precise wording of this carefully negotiated text is unfortunate and serves to undermine the Committee’s persuasive authority.

6. Because there is no ambiguity in Article 2(1) of the Covenant, there is no need to resort to the travaux preparatoires to ascertain the territorial reach of the Covenant. However, resort to the travaux serves to underscore the clear intent of the negotiators to limit the territorial reach of obligations of States Parties to the Covenant. In 1950, the draft text of Article 2 then under consideration by the U.N. Commission on Human Rights (the “Commission”) would have required that each State Party ensure Covenant rights to everyone “within its jurisdiction.” The United States, however, proposed the addition of the requirement that the individual also be “within its territory.”[2] Eleanor Roosevelt, the U.S. representative and then-Chairman of the Commission, emphasized that the United States was “particularly anxious” that it not assume “an obligation to ensure the rights recognized in it to citizens of countries under United States occupation.”[3] She explained that:

“The purpose of the proposed addition [is] to make it clear that the draft Covenant would apply only to persons within the territory and subject to the jurisdiction of the contracting states. The United States [is] afraid that without such an addition the draft Covenant might be construed as obliging the contracting states to enact legislation concerning persons, who although outside its territory were technically within its jurisdiction for certain purposes. 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. Another illustration would be leased territories; some countries leased certain territories from others for limited purposes, and there might be question of conflicting authority between the lessor nation and the lessee nation.”[4]

7. In the ensuing debate, several states considered that the United States position was the most sound and logical one,[5] and agreed with the view expressed by Mrs. Roosevelt that “it was not possible for any nation to guarantee such rights [e.g., the right to a fair trial in foreign courts] under the terms of the draft Covenant to its nationals resident abroad.”[6] At the same time, other delegations spoke against the U.S. amendment, arguing that a nation should guarantee fundamental rights to its citizens abroad as well as at home.[7] Ultimately, the U.S. view prevailed, and the amendment was adopted at the 1950 session by a vote of 8-2 with 5 abstentions.[8] Subsequently, after similar debates, the United States and others defeated proposals by France to delete the phrase “within its territory” at both the 1952 session of the Commission[9] and the 1963 session of the General Assembly.[10]

8. The position of the United States on this matter is thus fully in accord with the ordinary meaning and negotiating history of the Covenant. It is also the position that the United States has stated publicly since becoming Party to the Covenant. In the course of presenting the Initial Report of the United States in 1995, Conrad Harper, the Legal Adviser of the U.S. Department of State, stated that:

“[t]he Covenant was not regarded as having extraterritorial application…. Article 2 of the Covenant expressly stated that each State Party undertook to respect and ensure the rights recognized ‘to all individuals within its territory and subject to its jurisdiction’. That dual requirement restricted the scope of the Covenant to persons under United States jurisdiction and within United States territory. During the negotiating history, the words ‘within its territory’ had been debated and were added by vote, with the clear understanding that such wording would limit the obligations to within a Party’s territory.”[11]

9. Notwithstanding Article 2’s plain text and clear negotiating record, paragraph 10 of General Comment 31 would re-write the Covenant, as it states that Covenant rights are available to “all individuals…who may find themselves in the territory or subject to the jurisdiction of the State Party” (emphasis added). For the reasons discussed above, the United States considers this interpretation wholly incorrect as a matter of international law on the interpretation of treaties.


II. Obligations Pertaining to Private Conduct

10. General Comment 31, paragraph 8, discusses the extent to which Covenant obligations extend to protection against private acts. In the context of Article 2, the Committee states that a State Party is obligated to protect “not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities.” The Committee also refers to the need “to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.” (Emphasis added.)

11. While the United States agrees that, in certain areas, the Covenant entails positive obligations that extend to private acts, the Committee’s General Comment sweeps too broadly and categorically. As a general matter, with notable exceptions such as slavery, a human rights violation entails state action.[12] Human rights treaties may contain provisions that clearly and specifically impose obligations upon States Parties to prevent, in certain limited circumstances, particular kinds of misconduct by private parties or non-state actors. Article 2, however, contains no language stating that Covenant obligations extend to private, non-governmental acts, and no such obligations can be inferred from Article 2.

12. The Parties could have decided to negotiate the general obligation found in Article 2 in a manner that extended to the conduct of private parties. For instance, the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) contain specific provisions that do impose limited obligations upon States Parties, in the specific context of preventing discrimination, to prevent discrimination, respectively, “by any persons, group or organization” and “by any person, organization or enterprise” (CERD, Article 2(1)(d)[13]; CEDAW, Art. 2(e)[14]). Importantly, even in the case of CEDAW and CERD, where a State obligation is spelled out regarding prevention of discrimination by non-state actors or private parties, the obligation is carefully circumscribed (e.g., “all appropriate means” or “all appropriate measures”) to reflect the limitations on even well-intentioned States Parties to control the actions of non-governmental actors.

13. Parties to the Covenant, however, did not take such an approach, as Article 2 does not refer to private actors. Accordingly, ascertaining whether there is a Covenant obligation relating to non-state actors requires an examination of the Covenant text that pertains to a particular right, rather than recourse to a general proposition to be somehow inferred from Article 2.

14. For instance, the prohibition on slavery imposes an obligation on States Parties to take clear and specific measures on acts of non-state actors. This obligation is not found in the overarching formulation of Article 2, but rather in the nature of slavery itself (which includes private ownership rights or absolute control over a person) and the specific language of Article 8, which states that “slavery and the slave-trade in all their forms shall be prohibited.” The Committee seems to recognize this when it states that “[t]he Covenant itself envisages in some articles certain areas where there are positive obligations on States Parties to address the activities of private persons or entities.” Given the fact that the drafters of the Covenant knew how to draft provisions that would address the actions of non-state actors, the absence of any language to this effect in Article 2 reflects a conscious decision not to reach such conduct, which further weakens the Committee’s argument that there exists an implicit obligation.

15. For similar reasons, the United States does not agree with the assertion that it is “implicit in article 7 that States Parties have to take positive measures to ensure that private persons or entities do not inflict torture or cruel, inhuman or degrading treatment or punishment on others within their power.” Here the Committee seems to be saying that not only is a positive obligation implicit in Article 2, but that analogous obligations exist through imputation in (i.e., non-textual readings of) articles that similarly do not state such application. The Committee offers no evidence or explanation for these assertions of multiple layers of implicit Covenant obligations.

16. Contrary to the assertion of the Committee, it is well established in international law that torture requires state action or affirmative acquiescence. Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted . . . when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Article 16 of the CAT takes the same approach with respect to cruel, inhuman and degrading treatment or punishment (CIDT).

17. The Committee’s view on this matter leads to the illogical and unfounded conclusion that, 18 years after the adoption of the Covenant, states adopted a new treaty -- the CAT -- which contains obligations to prevent torture and CIDT that are narrower than those already included in the Covenant. There is simply no obligation -- implicit or explicit -- in the ICCPR to “ensure that private persons or entities do not inflict torture or cruel, inhuman or degrading treatment or punishment,” as claimed by the Committee.

18. Although the United States does not agree with the treaty analysis advanced by the Committee in this respect, it agrees with a more general proposition that States owe a moral and political responsibility to their populations to prevent and protect them from private acts of extreme physical abuse by private individuals. States around the world routinely prohibit and punish such acts under their domestic criminal law, which in some legal systems styles such offenses as crimes such as “aggravated battery.” States throughout the world have fulfilled this moral responsibility by enacting and enforcing such criminal laws for many centuries before the Covenant or any other human rights treaty had been written. As a practical matter, there is no need for the Committee to offer an atextual reading of ICCPR Articles 2 or 7 to ensure that governments will protect their populations from private violent acts. For purposes of interpreting the Covenant, it is essential, however, to bear in mind the legal distinction that governmental enforcement in these areas has been and will remain a matter of criminal law in the fulfillment of a state’s general responsibilities incident to ordered government, rather than as a requirement derived from their obligations under the Covenant.


III. Non-Refoulement

19. General Comment 31, paragraph 12, states that the Covenant entails an obligation on States Parties “not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant . . . .” General Comment 20 also states the Committee’s opinion that the Covenant contains a non-refoulement obligation.

20. The United States fundamentally disagrees with the Committee on this matter. Unlike Article 3 of the Convention Against Torture, Article 7 of the ICCPR contains no reference to the concept of non-refoulement, stating only that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

21. As noted in the July 2006 written responses of the United States to Committee questions, the Covenant does not impose a non-refoulement obligation upon States Parties.[15] Indeed, the adoption of a provision on non-refoulement was one of the important innovations of the later-negotiated Convention Against Torture. States Parties to the Covenant that wished to assume a new treaty obligation with respect to non-refoulement for torture were free to become States Parties to the CAT, and a very large number of countries, including the United States, chose to do so. Accordingly, States Parties to the Convention Against Torture have a non-refoulement obligation under Article 3 of that Convention not to “expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” It should be noted that not even the later-in-time CAT contains a provision on non-refoulement that would apply with respect to CIDT or the “irreparable harm” standard suggested by the Committee.

22. In this sense, the non-binding opinions offered by the Committee on this matter in General Comments 31 and 20 have no legal basis in the text of the treaty or the intention of its States Parties at the time they negotiated or became parties to the instrument.

23. The only obligations under international human rights and refugee law that the United States has assumed with respect to non-refoulement are contained in Article 33 of the Convention Relating to the Status of Refugees (applicable to the United States by virtue of its ratification of the Protocol Relating to the Status of Refugees) and in Article 3 of the Convention Against Torture.[16] The United States has not assumed obligations with respect to non-refoulement in the human rights and refugee law context other than those referred to in this paragraph and has specifically assumed no such obligation under the ICCPR.


IV. International Humanitarian Law

24. General Comment 31, paragraph 11, states that “the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While, in respect of certain Covenant rights, more specific rules of international humanitarian law may be specially relevant for the purposes of the interpretation of Covenant rights, both spheres of law are complementary, not mutually exclusive.”

25. While the United States agrees with the Committee that as a general matter armed conflict does not suspend or terminate a State’s obligations under the Covenant within its scope of application, its assertion that the Covenant invariably applies in situations of armed conflict to which the rules of international humanitarian law are applicable sweeps too broadly. As an initial matter, as described in paragraphs 3-9 of these Observations, to the extent that a State Party is engaged in armed conflict outside of its territory, the Covenant does not apply, as it does not apply extraterritorially. In addition, as the Committee notes, during armed conflict, international humanitarian law will often serve as the lex specialis, thus being the relevant legal standard that would apply to a particular activity. In such instance, it is unclear in what sense or manner the Covenant would “apply,” as the law of war provides the relevant legal standard with respect to the conduct in question. As a general matter, a case-by-case inquiry is needed to ascertain the relevant and operative legal rule that is applicable to particular conduct of a particular state during an armed conflict.

26. In paragraph 18 of General Comment 31, the Committee alludes to the Rome Statute and states that “[w]hen committed as part of a widespread or systematic attack on a civilian population” Covenant violations relating to torture and cruel, inhuman and degrading treatment, summary and arbitrary killing, and enforced disappearances “are crimes against humanity.”

27. Such Covenant violations, even in the context described by the Committee, would not in all circumstances constitute crimes against humanity. Without engaging in an extensive analysis of international criminal law, it suffices to say that the Committee’s statement is not fully supported by the Covenant, the Rome Statute, or customary international law. Ascertaining whether a crime has occurred would require analyzing the facts and circumstances of a particular case. More fundamentally, the United States does not consider it necessary or appropriate for the Committee to issue statements that purport to define what constitutes international crimes -- statements outside the ambit of the Covenant. Instead, mindful of its treaty-based mandate, the Committee might better confine its General Comments to issues related to the ICCPR.


V. Remedies

28. Paragraphs 15-20 of General Comment 31 discuss a range of issues related to remedies. The United States notes that some of the modalities and mechanisms discussed are consonant with and reflected in the “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.”[17] The United States was pleased to join consensus on United Nations General Assembly resolution 60/147, which adopted the Basic Principles and Guidelines.[18] As the Basic Principles and Guidelines note, they “do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms.” (Emphasis added.)

29. The United States finds itself in some disagreement with certain Committee views on remedies. Generally, the appropriateness of a particular remedy or remedies is highly context specific. This is reflected in the careful drafting of the Basic Principles and Guidelines, which describe certain flexibilities and contain important caveats and limitations. This level of care and flexibility seems to be lacking in some of the Committee’s discussion of remedies.

30. For instance, in paragraph 18, the Committee seems to suggest that a State Party violates its Covenant obligations when it fails to “bring to justice” perpetrators of certain Covenant obligations, particularly those “violations recognized as criminal….” The United States indeed considers itself bound by international obligations to investigate, prosecute, and punish violators in certain instances. For instance, Articles 12 and 16 of the CAT require States Parties to undertake “a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture [or cruel, inhuman, or degrading treatment or punishment] has been committed. . . .” Likewise, Article 3 of the CAT requires each State Party to “ensure that all acts of torture are offences under its criminal law.”

31. The Committee’s statement, however, goes too far and is not grounded in the text of the ICCPR. For instance, it leads to the conclusion that the ICCPR contains obligations to criminalize CIDT -- obligations not found in Article 7 or even in the later-negotiated CAT. A plain reading of the ICCPR shows that it contains no such obligations to criminalize CIDT or, for that matter, any particular Covenant violation. Accordingly, the United States does not consider the Committee’s interpretations on this matter to accurately describe the Covenant’s actual obligations.

32. With respect to remedies, in paragraph 18 the Committee sweepingly states that certain “impediments to the establishment of legal responsibility should also be removed, such as the defense of obedience to superior orders or unreasonably short periods of statutory limitation in cases where such limitations are applicable.” The United States does not consider the mere recognition of a superior orders defense to be inconsistent with the ICCPR.

33. Under United States military law, obedience to superior orders is a defense to charges under the Uniform Code of Military Justice, unless the accused knew the order to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful. Thus, rather than an outright and categorical elimination of the defense, United States law incorporates a mens rea requirement. Far from an “impediment” to legal responsibility, the United States considers the limited use of this defense to be appropriate and fair with respect to establishing criminal responsibility of military personnel.

34. The Committee’s use of the word “should” suggests to the United States that the Committee does not consider removal of superior orders or statutes of limitations defenses as requirements per se of the Covenant, but is perhaps a general policy recommendation. This use of “should” seems appropriate, as neither defense is addressed in the ICCPR, unlike other human rights treaties that do address these issues in specific fashion (See e.g., CAT, Art. 2, with respect to superior orders related to torture; International Convention for the Protection of All Persons from Enforced Disappearance (not yet in force), Art. 8, with respect to statutes of limitations).

35. Overall, the United States strongly agrees with the Committee with respect to the importance of effective remedies under the Covenant. However, the United States considers that some of the Committee’s specific views on remedies are not accurate reflections of Covenant obligations.


VI. Erga Omnes Obligations

36. General Comment 31, paragraph 2, states that with respect to the Covenant “every State Party has a legal interest in the performance by every other State Party of its obligations. This follows from the fact that the ‘rules concerning the basic rights of the human person’ are erga omnes obligations….”

37. While the United States agrees that, in the context of the Covenant, each State Party has a legal interest in the performance of obligations by other States Parties, it does not consider that such a conclusion “follows from the fact that the ‘rules concerning the basic rights of the human person’ are erga omnes obligations.” Rather, the legal interests of States Parties in the performance of the obligations by other States Parties arise from principles of treaty law and the Covenant itself.

38. The question of which human rights give rise to erga omnes obligations is not settled under international law. Similarly, there is no well established method or set of criteria for ascertaining which rights might generate erga omnes obligations. Accordingly, the United States cannot identify -- and Committee does not explain -- the basis for the apparent assertion that all of the rights in the ICCPR constitute “basic rights of the human person” meriting erga omnes status.[19] Rather than putting forth a novel legal hypothesis, it may be that the Committee is simply trying to make the broader point that human rights are a common interest of the international community. If this is the case, the United States is in full agreement that States have a profound and shared interest in the protection and promotion of human rights worldwide.

***

39. The United States Government concludes these Observations with a statement of its appreciation for the work of the Human Rights Committee. Although the United States does not agree with all of the Committee’s recommendations with respect to the application of the Covenant, it fully appreciates the Committee’s continuing efforts to advise States Parties on issues related to their implementation of the treaty. The United States looks forward to its continuing dialogue with the Committee on these issues.





[1] See Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679. The analysis here follows the methodology employed in Articles 31 and 32 of the Vienna Convention. While the United States has signed but not ratified the treaty, it considers the Vienna Convention to be the “authoritative guide” to treaty law and practice. See “Letter of Submittal from Secretary of State Rodgers to President Nixon Transmitting the Vienna Convention on the Law of Treaties,” Oct. 28, 1971, Ex. L., 92d. Cong. 1st Sess. at 1.
[2] Compilation of the Comments of Governments on the Draft International Covenant on Human Rights and on the Proposed Additional Articles, U.N. ESCOR Hum. Rts. Comm., 6th Sess. at 14, UN Doc. E/CN.4/365 (1950) (U.S. proposal). The U.S. amendment added the words “territory and subject to its” before “jurisdiction” in Article 2(1).
[3] Summary Record of the Hundred and Ninety-Third Meeting, U.N. ESCOR Hum. Rts. Comm., 6th Sess., 193rd mtg. at 13, 18, U.N. Doc. E/CN.4/SR.193 at 13, 18 (1950) (Mrs. Roosevelt); Summary Record of the Hundred and Ninety-Fourth Meeting, U.N. ESCOR Hum. Rts. Comm., 6th Sess., 194rd mtg. at 5, 9, U.N. Doc. E/CN.4/SR.194 (1950).
[4] Summary Record of the Hundred and Thirty-Eighth Meeting, U.N. ESCOR Hum. Rts. Comm., 6th Sess., 138th mtg, at 10, U.N. Doc. E/CN.4/SR.138 (1950) (emphasis added).
[5] See, Id. at 6 (Dr. Carlos Valenzuela, representative of Chile); Id. at 8 (E.N. Oribe, representative of Uruguay).
[6] Summary Record of the Hundred and Ninety-Fourth Meeting, supra note 3, at 7 (Mrs. Roosevelt).
[7] More background on the ensuing debate can be found in Annex I of Second and Third Periodic Report of the United States of America to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political Rights, submitted October 21, 2005. Available at http://www.state.gov/g/drl/rls/55504.htm#annex1. It is significant to note even those delegations who unsuccessfully argued for a broader wording of the territorial scope provision than that which was adopted never contemplated that such drafting would have had the Covenant apply with respect to non-nationals of a State Party outside the territory of a State Party, much less to all individuals who may be under the “effective control” of a State Party outside its territory.
[8] Id. at 11.
[9] Draft International Convention on Human Rights and Measures of Implementation, U.N. ESCOR Hum. Rts. Comm., 8th Sess., Agenda Item 4, U.N. Doc. E/CN.4/L.161 (1952) (French amendment); Summary Record of the Three Hundred and Twenty-Ninth Meeting, U.N. ESCOR Hum. Rts. Comm., 8th Sess., 329th mtg. at 14, UN Doc. E/CN.4/SR.329 (1952) (vote rejecting amendment). During the debate France and Yugoslavia again urged deletion of the phrase “within its territory” because states should be required to guarantee Covenant rights to citizens abroad. Id.at 13 (P. Juvigny, representative of France); Id. at 13 (Branko Jevremovic, representative of Yugoslavia).
[10] U.N. GAOR 3rd Comm., 18th Sess., 1259th mtg. ¶ 30, U.N. Doc. A/C.3/SR.1259 (1963) (rejection of French and Chinese proposal to delete “within its territory”). Several states again maintained that the Covenant should guarantee rights to citizens abroad. See, U.N. GAOR 3rd Comm., 18th Sess., 1257th mtg. ¶ 1 UN Doc. A/C.3/SR.1257 (1963) (Mrs. Mantaoulinos, representative of Greece); Id. at ¶ 10 (Mr. Capotorti, representative of Italy); Id.at ¶ 21 (Mr. Combal, representative of France); U.N. GAOR 3rd Comm., 18th Sess., 1258th mtg. ¶ 29, UN Doc. A/C.3/SR.1258 (1963) (Mr. Cha, representative of China); Id.at ¶ 39 (Antonio Belaunde, representative of Peru).
[11] Summary record of the 1405th meeting: United States of America, UN ESCOR Hum. Rts. Comm., 53rd Sess., 1504th mtg. at ¶¶ 7, 20, U.N. Doc. CCPR/C/SR 1405 (1995).
[12] Abuses committed by private individuals may constitute human rights violations in certain instances, such as when an abuse is committed at the direction of, or with the acquiescence of the state. See e.g., Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which defines torture in a manner that requires pain or suffering to be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” (Emphasis added.)
[13] CERD Article 2(1)(d) provides that “[e]ach State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by the circumstance, racial discrimination by any persons, group or organization.” Upon ratification, the United States entered the following reservation, which relates to CERD Article 2(1)(d): “That the Constitution and laws of the United States establish extensive protections against discrimination, reaching significant areas of non-governmental activity. Individual privacy and freedom from governmental interference in private conduct, however, are also recognized as among the fundamental values which shape our free and democratic society. The United States understands that the identification of the rights protected under the Convention by reference in article 1 to fields of ‘public life’ reflects a similar distinction between spheres of public conduct that are customarily the subject of governmental regulation, and spheres of private conduct that are not. To the extent, however, that the Convention calls for a broader regulation of private conduct, the United States does not accept any obligation under this Convention to enact legislation or take other measures under paragraph (1) of article 2, subparagraphs (1) (c) and (d) of article 2, article 3 and article 5 with respect to private conduct except as mandated by the Constitution and laws of the United States.”
[14] CEDAW Article 2(e) provides that States Parties undertake “[t]o take all appropriate measures to eliminate discrimination against women by any persons, organization, or enterprise.”
[15] “List of Issues to Be Taken Up in Connection With the Consideration of the Second and Third Periodic Reports of the United States of America — Response of the United States of America,” at para. 10, available at: http://www.state.gov/g/drl/rls/70385.htm.
[16] At the time the United States became a State Party to the CAT, it filed a formal understanding with respect to the scope of the treaty law obligation it was assuming under that article, stating “[t]hat the United States understands the phrase ‘where there are substantial grounds for believing that he would be in danger of being subjected to torture,’ as used in article 3 of the Convention, to mean ‘if it is more likely than not that he would be tortured.’” No State Party has objected to that understanding.
[17] “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law,” G.A. Res. 60/147, U.N. GAOR, 60th Session, U.N. Doc. (2005).
[18] Id. The Basic Principles and Guidelines are both broader and more limited than the Covenant. They are more limited in that they are directed only at gross violations of international human rights law, whereas they are broader in that they are not confined in the human rights sphere to remedies for ICCPR violations and they also address serious violations of international humanitarian law.
[19] The Committee seems to reach this view with the aid of the International Court of Justice’s opinion in the Barcelona Traction case, which it partially quotes (without reference). Barcelona Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970. In this case, the Court posited that erga omnes “obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.” Id., p. 32, para. 33.


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