YJIL Symposium – Response to Elena Baylis

Tara Melish

Please let me thank Elena again for taking the time to respond to my piece, and for her always insightful, probing, and challenging questions. Let me attempt to respond sequentially to each of the five great points she raises.

1. Elena begins by querying whether the “thicker” interest-based description I offer to explain the recent increase in U.S. human rights engagement in fact signals “anything more than an anthropological point about differing cultures and roles of the U.S. Congress and the Office of the Legal Advisor to the State Department?” That is, isn’t it plausible that increased engagement is simply “the result of Congress having ratified a number of treaties with reporting obligations, and authority for fulfilling those obligations having been turned over to the Legal Advisor’s Office”?

There are two distinct responses to this important question. First, it is useful to underscore that my article does not in fact make any claim about the cultures and roles of the U.S. Congress and the Office of the Legal Advisor. To the contrary, the crux of my argument is that these democratic policymaking institutions—and U.S. human rights policy as a whole, which is not determined exclusively by either body—are best understood as having no culturally fixed or structurally predetermined approach to engagement, either at the stage of human rights treaty ratification or post-ratification treaty body engagement. (This is precisely what distinguishes an interest-management narrative from an exceptionalist one.) Rather, U.S. policy institutions are better understood as mediating bodies that seek to maximally accommodate the competing (and constantly evolving) interests exerted on them both at the foreign-policy level (from realists and institutionalists) and at the domestic-policy level (from insulationists and incorporationists). Such accommodation is constrained, nevertheless, by a core set of sovereignty and subsidiarity-based mediating techniques that legally anchor U.S. human rights policy and determine its outer boundaries. Any “anthropological” point I make about the content of U.S. human rights policy is, then, not directed to these institutions, but rather to the shifting motivations of the U.S. interest groups which seek to influence them (both from within and from without). It is the changing strategies of these interest groups as they respond to new political conditions and shifting alliances, and how those strategies intersect with U.S. mediating techniques, I argue, that are determinative in understanding the evolving, asymmetric contours of U.S. human rights policy.

Second, it is my fervent hope that readers will understand my argument as more than simple recognition that State Department engagement with treaty bodies follows inexorably from Congressional ratification of treaties with international reporting obligations. As a jurisdictional matter, of course, treaty body engagement can not occur until congressional advice and consent is granted and the ratification instrument deposited, but the mere fact of deposit tells one little to nothing about the scope and nature of U.S. engagement, nor why and how it changes. Moreover, as an empirical matter, U.S. engagement practice has not followed a singular path pursued technocratically by long-term civil servants with dominant sympathies for international institutions. The contours of that engagement has evolved markedly with time, prodded upward or downward by changing political circumstances and evolving interests. It is these shifting contours on which my piece focuses its attention.

In so doing, I do aim to convey “something more fundamental about the nature of U.S. engagement with international human rights regimes.” That something is precisely that U.S. human rights engagement policy is not fixed or predefined either by U.S. culture writ large or by the internal cultures of Congress, the State Department, or any other branch or department of the U.S. government. Rather, that policy is constantly and constitutively redefined by the evolving pressure strategies of U.S. interest groups and their changing memberships as they seek to maximize their respective instrumental interests. As I conclude, the three predictable constants in this process will be “an active attention to the foreign-policy benefits of engagement, a continuing emphasis on the primacy of domestic-level democratic decisionmaking processes, and adherence to a core set of doctrinally anchored mediating techniques designed to effectively mediate the two” (p. 449). These constants should be expected to remain the basis of U.S. human rights policy (as it is in most other nations) irrespective of party control of the White House (p. 448).

2. Elena next raises a factual query as to my claim that the reason the U.S. has not yet ratified certain internationally popular treaties (like the CEDAW, CRC and ICESCR) does not rest in a fundamental cultural opposition to either positive rights or socio-economic rights, as many observers have claimed. Beyond the fact that U.S. polls regularly show that significant majorities of the U.S. population support these rights and believe they should be protected by law, my piece additionally noted that the claimed causal connection is difficult to sustain in light of the significant normative and duty-based overlap of rights in the treaties that the U.S. has ratified, such as the CERD and the ICCPR. Both of these latter treaties are not only universally interpreted to include significant positive dimensions (interpretations accepted by the U.S. in its engagement policy), but both contain important sets of socio-economic rights. Indeed, regular U.S. treaty body engagement on these core rights has made it increasingly difficult for insulationists to continue to claim that ratifying currently unratified treaties will lead to abhorrent outcomes unmediated by domestic political process.

Elena’s query, however, was not entirely focused here. She did not contest the factual foundation of my claim per se, but rather she questioned it in light of the fact that the U.S. regularly attaches a large number of RUDs to its instruments of ratification. Offering that “RUDs typically have the overall effect of meaning that the U.S. is committed only to follow present law,” she concludes from this that “rights that are overlapping may well be reserved, and if so, this would suggest that the U.S. is not so susceptible of changes in its position on these issues as suggested here.”

While appreciating the potential impact that RUDs can have, I am not persuaded that the actual RUDs attached to any of the treaties the U.S. has ratified do in fact have the impact Elena suggests. I also do not agree that any current set of RUDs commits the U.S. to do no more than follow present law. Although frequent assertions are made as to this latter claim, such assertions are not, in my view, supported by an actual textual reading of U.S. RUDs. Many of these RUDs do subordinate treaty norm understandings to the legal protections afforded by the U.S. Constitution, including a regular “proviso” (not a deposited RUD) that nothing in the treaty “requires or authorizes” legislation prohibited by the U.S. Constitution. U.S. RUDs nevertheless explicitly recognize and affirm that the Federal Government has an affirmative treaty obligation to take all appropriate measures—both in relation to federal sphere and to ensure that competent authorities of the constitutent units of the United States of America take appropriate measures in their own spheres—to ensure that all ratified treaties are fully implemented within the domestic jurisdiction. While non-self-execution declarations do affirm that such implementation shall not be done by U.S. courts absent congressional action, they do not obviate the obligations of the government to fully comply with U.S. treaty obligations, including by passing appropriate new legislation and by reviewing all new and old policies and practices for conformity with U.S. human rights obligations.

Perhaps even more to the point, however, to the extent any current RUD constrains a specifically identified treaty right, such constraints are limited to traditional civil and political rights (e.g., free speech, the definitions of “cruel, inhuman and degrading” treatment or punishment and “torture,” the death penalty, retroactive application of penalties, treatment of juveniles as adults). I am unsure, then, why one should assume that these RUDs reserve or even speak to potential U.S. acceptance of other treaty-based norms, especially where accompanied by non-self-execution declarations.

That said, misperceptions about the nature of the obligations assumed under treaties that protect socio-economic rights continue to be rife in the United States, fed by the rights-absolutism that has historically surrounded discussions of rights in our litigious society. For this reason, I suggest in the piece that while the U.S. will continue to ratify new human rights treaties, it will do so in a particular sequential order: the Disability Convention and CEDAW as first priorities (a prioritization recently confirmed by the Obama White House), the CRC and American Convention as second priorities, and, finally, the ICESCR (p. 447). The major point, however, is that as U.S engagement with the duties in other human rights treaties becomes more regularized, arguments against new ratification will be increasing difficult to sustain, including ultimately with respect to the ICESCR, a treaty ratified by effectively all of the United States’ international peers, without any negative impact on their democratic decisionmaking prerogatives.

3. Elena begins her second set of questions with a useful introductory point. She suggests that my arguments might have been more forceful if I had openly set forth my implicit sympathy for the incorporationist perspective. I fully appreciate this excellent point, but I would like to resist the notion that my personal predilection is relevant to a piece that is intended to take a step back from political points of view (which, I believe, muddy many accounts of human rights policy) to take a more neutral, empirical look at the motivating influences to U.S. human rights engagement policy.

In this respect, I might note that I did not undertake to write a prescriptive article. As I worked through the interest management approach, however, certain conclusions naturally followed. Specifically, a mapping of U.S. engagement policy’s current contours to the policy coordinates at which U.S. realist, institutionalist, insulationist, and incorporationist interest groups exert pressure, reveals that the interests of the former three groups are already taken into plenary account in U.S. policy. There are, then, few concrete proposals that one might offer to enhance their influence. The same is not true of incorporationists. Hence, the natural conclusion of an interest-mediation approach—one which understands the U.S. to be open to incorporationist arguments if presented in a way in which they can be taken into account in the mediated U.S. policy position— is to suggest ways for incorporationists to change their strategies to enhance their influence. Because these prescriptions also spoke directly to how one might address the “U.S. human rights paradox,” I felt particularly compelled to make them.

4. This issue speaks, then, to Elena’s fourth point: That my arguments, though independently persuasive, did not so much “resolve” the U.S. human rights paradox as refine our understanding of it. I agree completely. The point of my article was not to “resolve” the paradox, but to shift our understanding of what the “paradox” is. My major argument is that the U.S. human rights paradox, when viewed from an interest mediation perspective, is in fact not so very paradoxical. Rather, it is in many ways the predictable response to current interest group strategies and arguments. While the arguments of realists, institutionalists, and insulationists are all framed in ways that can be taken into account through U.S. sovereignty and subsidiarity-based mediating techniques, the arguments of incorporationists cannot. An interest mediation perspective, therefore, helps to provide a roadmap of how to effectively address the “U.S. human rights paradox,” to the extent one finds it non-optimal to one’s interests.

5. Elena concludes by addressing the set of concrete proposals I make for how incorporationists might effectively use the subsidiarity principle to ensure that their interests are better taken into account in U.S. human rights policy. I suggest that incorporationists must not only embrace the negative dimensions of the subsidiarity principle (those currently relied upon by U.S. insulationists), but they must also affirmatively build that principle’s positive dimensions. This means constructing a domestic human rights machinery that can engage the contextualized meanings and localized instantiations of human rights norms at the domestic level in a regularized and sustained way. Specifically, I urge the pursuit of three national institutional arrangements designed to promote domestic processes of national self-reflection on human rights treaty commitments: (1) a national office on human rights implementation, to serve as an executive focal point on implementation, (2) an interagency coordination body, to assist it, and (3) a national human rights commission.

[It may be noted that the recently created U.S. Campaign for a New Domestic Human Rights Agenda has made pursuit of the latter two arrangements central to its national agenda. In so doing, it has explicitly incorporated the recommendations of Catherine Powell’s Human Rights at Home: A Domestic Policy Blueprint for the new Administration, which drew directly from the proposals in this article.]

Recognizing that many other nations have already created these bodies, Elena nevertheless questions whether these national institutions (especially those outside a simple office to coordinate U.S. reporting obligations) would in fact be very useful in the United States. She raises this important comparative query particularly in light of the very active litigation-based system for enforcement of U.S. constitutional rights.

There are many potential responses to this line of questioning that, in light of space constraints, I look forward to responding to in further discussion. Many thanks again to Elena, and comments are welcome!