YJIL Symposium – From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies

Tara Melish

[Ed. This is a slightly different, updated version than the one posted earlier today.] Let me begin by thanking Opinio Juris and the editors of the Yale Journal of International Law for hosting this online symposium, and especially Professor Elena Baylis for her willingness to provide comments on my recent article, From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies.

This article seeks to take a closer, more searching look at what has frequently been called the “U.S. human rights paradox”—the United States’ longstanding practice of resisting direct domestic application of human rights treaty norms, even as it vigorously promotes those norms and their corresponding supervisory machinery for other nations (and understands human rights to stand at the core of its national identity). While most scholarly accounts attribute this “paradox” to deeply-embedded exceptional features of U.S. democratic structure or rights culture (and hence predict it unlikely to change anytime soon), the inability of exceptionalist narrative to credibly account for the significant empirical changes that have occurred in U.S. human rights engagement policy over the last fifteen years, raises serious questions about that narrative’s continuing utility. Such changes in U.S. human rights policy include not only a notable rise in human rights treaty ratifications—ratifications reliably shunned for forty years—but also, and in accelerated fashion since 2003, a qualitatively more robust policy of U.S. engagement with the international human rights treaty bodies charged with supervising U.S. compliance with its treaty-based human rights commitments. Notably, this latter shift has become most sustained precisely when least expected: in the post-Iraq invasion, Bush-era environment, when perceptions of U.S. unilateralism and go-it-alone exceptionalism (both at home and abroad) were at their peak.

In an effort to better explain the often asymmetrical shape and growth patterns of U.S. human rights engagement policy, I offer a new narrative based in interest group management. That narrative emphasizes a disaggregated analysis that looks at the interest intersections and competing push-pull agendas of four distinct instrumental interest groups, each seeking alternatively greater or lesser substantive and procedural engagement with human rights treaty bodies, in accordance with their group-specific policy interests. These include “realists” and “institutionalists” at the foreign policy level (the latter pushing for greater U.S. engagement, the former pushing away from it) and groups I call “insulationists” and “incorporationists” at the domestic policy level (the former seeking to insulate domestic politics from the methodological influence of human rights law, the latter seeking to incorporate human rights norms and methodologies into U.S. law and practice). The evolving shape of U.S. human rights engagement policy, I argue, is determined at the shifting intersection points of these four interest groups, as they are accommodated within and managed through a core set of doctrinally-anchored mediating techniques that define the parameters of U.S. engagement practice. These mediating techniques, used today to justify U.S. positions in virtually all treaty body fora, are reliably and reliedly drawn from two longstanding and foundational doctrines of international law: the doctrine of sovereignty and, most significantly, the principle of subsidiarity. Although both are today invoked only in their negative dimensions, each provides ample room for policy maneuver if used in their full dimensionality.

My central claim is that a fuller understanding of U.S. engagement policy’s basis in these doctrinally-anchored mediating techniques, and how their flexible contours are strategically manipulated to steer a middle course through the competing interests of U.S. realists, institutionalists, insulationists, and incorporationists, reveals that the “U.S. human rights paradox” may not in fact be so paradoxical. To the contrary, that paradox may be entirely explainable, at least in its modern era, by reference to how these four interest groups articulate their interests in ways that can effectively be accommodated by U.S. sovereignty and subsidiarity-based mediating techniques. As I seek to show through an examination of the specific ways the U.S. engages with the three principal competences exercised by UN, OAS, and ILO supervisory treaty body systems, U.S. human rights engagement policy today maps directly to the policy coordinates at which the interests of three of these groups intersect. These groups include foreign-policy realists, foreign-policy institutionalists, and domestic-policy insulationists.. Notably absent in this calculation are domestic-policy incorporationists.

That is, the U.S. pursues a policy of active institutional engagement with treaty bodies in all substantive areas of treaty body concern (accommodating institutionalists), while pulling back only in a very limited set of “no go zones” (accommodating realists). These “no go zones” are justified on the basis of an important set of sovereignty-based mediating techniques that, drawing on sovereignty’s negative dimensions, emphasize the limits of U.S. consent to treaty body competence. At the same time, to accommodate the inevitable push-pull tensions between foreign-policy institutionalists (pushing for greater engagement) and domestic-policy insulationists (pulling away from it), the U.S. employs a set of subsidiarity-based mediating techniques. These techniques draw from subsidiarity’s negative dimension to insist upon international deference to U.S. domestic political process. They include such standard procedures as the attachment of non-self execution declarations and other RUDs to treaty ratifications, a preference for promotion to contentious international jurisdictions, emphasis on prior domestic exhaustion and other standard admissibility thresholds, as well as repeated policy insistence on the non-binding (recommendatory) nature of all treaty body pronouncements, whether of a promotional or contentious nature.

An interest mediation perspective suggests that this exclusion of incorporationist interest is not a consequence of any U.S. predisposition against human rights incorporation. Rather, it is a direct consequence of the failure of U.S. incorporationists to speak a policy language that can be discerned and hence accommodated within U.S. mediating techniques—techniques, it should be noted, that are likewise used by most other countries in their own engagement policies. An interest management perspective thus reveals why U.S. incorporationists have had so little success in having their interests actively accommodated in U.S. human rights policy. That explanation resides not only in incorporationists’ relative lack of an organized national engagement strategy but, even more importantly, in the nature of the advocacy strategies chosen in pursuit of their incorporationist agenda. Those strategies have tended to be based not on an instrumental embrace of U.S. mediating techniques—as have those of realists, institutionalists, and insulationists—but rather on an often aggressive rejection of their very legal validity. U.S. incorporationist campaigns have thus tended to center on vigorously rejected the subsidiarity-based use of RUDs (particularly non-self-execution declarations), the idea that treaty body pronouncements are non-binding in nature, and sovereignty-based “no go” zones, insisting that such postures represent U.S. breaches of international human rights law and treaty commitments. Because U.S. human rights policy has been based precisely on use of these doctrinally-anchored positions as a way to promote active U.S. engagement with human rights treaty bodies and to comply with international commitments (while also attending to domestic political pressures), such arguments are easily dismissed and ignored. The result of this communicative disconnect has been a regular sidelining of incorporationist interests from U.S. engagement policy, which cannot accommodate such arguments into its mediated posture.

To the extent incorporationists wish to have their interests actively taken into account in U.S. human rights policy, an interest mediation perspective reveals, then, that they must fundamentally shift their thinking and strategy. That shift is one which draws from the insights of an interest-mediation perspective to transform the current U.S. engagement emphasis on the negative dimension of the subsidiarity principle from its current use as a policy shield into a policy sword. This will require a reframing of incorporationist arguments to align with (rather than against) U.S. mediating techniques. The major challenge for domestic advocates, I argue, is not then to reject the negative dimensions of sovereignty and subsidiarity doctrine (as is the tendency today), dimensions which are core to both U.S. interest-management techniques and the integrity of international human rights law, but rather to firmly embrace them as central elements of incorporationist strategy, while likewise finding new ways of working flexibly and effectively within the subsidiarity paradigm to institutionalize a framework for respecting the positive half. That is, the tools of the subsidiarity principle must not be permitted to be used only defensively by U.S. actors to shield domestic legislative and judicial processes from international intervention. They must also be used offensively to routinize, within the bounds of U.S. federalism and democracy, an internal process of domestic self-reflection and localized democratic deliberation on how we, in our own local communities, wish to protect internationally recognized human rights to best ensure the dignity of the human person.

In this latter respect, I lay out a set of national level institutional mechanisms designed to ensure that monitoring and supervisory processes are established and routinized at the domestic level to resolve human rights complaints locally and to ensure that these are operating effectively and reliably. In this way, advocates may ensure that U.S. engagement policy is directed not only outward, toward an international audience, but, just as critically, inward to our own domestic constituencies. It is this vital shift in U.S. human rights policy—from partial subsidiarity (paradox) to genuine subsidiarity—that is the central focus of this Article.