YJIL Symposium – Response to Professor Melish

Elena Baylis

Thanks to Opinio Juris and to YJIL for giving me the opportunity to comment on Tara Melish’s article, From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies. I have long been a fan of Tara’s work, and so it’s a pleasure to have the chance to respond to her new piece.

In this article, Tara persuasively argues for two fundamental shifts in our understanding of the “U.S. human rights paradox.” She claims:

1. That the US position on international human rights is better explained as the balancing point of the competing demands of interest groups, reached through iterative political interactions, than as the result of static exceptionalism and/or cultural preferences; and,

2. That “incorporationists” (advocates of domestic incorporation of international human rights) have made several fundamental errors in confronting opposition to human rights treaties. They have disengaged too much from the national political process, they have mistaken rhetoric for reality in responding to opponents’ rights-absolutist positions, and they have mistaken the means for the ends by opposing non-self-execution declarations and other RUDs. Because the US human rights position is the result of a dynamic political process, incorporationists could influence that process by altering their strategy to promote domestic democratic deliberation on the national and local levels.

With these arguments, Tara proposes an end run around some intractable sticking points in the debate over the U.S. human rights position.

On the first point, I am entirely sympathetic to Tara’s approach of using a thick description of process as the basis for her theoretical claims, but I have two questions about the factual foundation and its analytic connection to those conclusions. Tara grounds her argument in a thick description of US engagement with international human rights treaty bodies, arguing that the pattern of increasingly frequent and robust engagement with treaty bodies in recent years, including under the Bush Administration, cannot be explained by exceptionalism. But does increased engagement with treaty bodies signal anything more than an anthropological point about the differing cultures and roles of the U.S. Congress and the office of the Legal Advisor to the State Department? Before a treaty is ratified, its merits are debated in the highly political and public Congressional arena. But once the treaty is ratified, it is the Office of the Legal Advisor that takes on the reporting duties, an office filled mainly with long-term civil servants who have a commitment to fulfilling international legal obligations, some of whom have strong sympathies for international institutions as well. It seems plausible that the increase in engagement may well simply be 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, rather than telling us something more fundamental about the nature of U.S. engagement with international human rights regimes.

My second factual question concerns the claim that the U.S. does not actually have a fundamental opposition to the socio-economic rights protected in many of the popular treaties we have not yet signed. Tara emphasizes that while the US hasn’t signed certain popular treaties, it’s signed a lot of other ones protecting the same socio-economic and positive rights, indicating that it is not in principle opposed to these rights. She concludes that this suggests that the US position is not characterized by intractable exceptionalism or cultural opposition. But has the US actually acceded to the particular socioeconomic and cultural rights that overlap? There are a lot of RUDs attached to our ratifications, and the RUDs typically have the overall effect of meaning that the US is committed only to follow present US law. As a consequence, the 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.

In her second set of arguments, Tara turns to the question of how incorporationists could more effectively achieve their ends. However, these points would have been made more forcefully if she had openly adopted and justified her implicit sympathy for the incorporationist perspective. As it stands, there is a bit of slippage between the beginning sections of the article, which take a fairly neutral analytic approach to understanding U.S. human rights policy, and the later sections, which are directed at an incorporationist audience.

Each of these second set of arguments was independently compelling, however, I was not convinced that they resolved the “U.S. human rights paradox,” so much as they refined our understanding of it. The problem, as Tara describes it, is not that the U.S. uses legalistic tools like RUDs, non-self-executing provisions, and not adopting optional protocols for jurisdiction over individual cases to constrain the influence of treaties and treaty bodies. These are all perfectly appropriate tools under international human rights law. Rather, the problem is the ends to which those tools are being used: they are supposed to be used to construct rather than to obstruct – that is, to produce domestic deliberation over human rights norms rather than to suppress it. As it stands, however, those tools are being used to suppress debate by ensuring that the United States will not be challenged to consider committing to any new policies or principles. Thus, incorporationists should stop wasting their time battling these perfectly appropriate legal mechanisms and instead focus their energies on creating institutions & mechanisms that will facilitate domestic democratic deliberation over local incorporation and adaptation of human rights norms.

This is an intriguing proposal, but it doesn’ t resolve the paradox of the U.S. approach to international human rights law; rather, it suggests a shift in our understanding of what the paradox is. As Tara herself puts it, the U.S. “upsets first principles of international human rights law” by “invoking only subsidiarity’s negative side” without providing mechanisms for international support and consultation, in complement to domestic deliberative processes (p. 454) In other words, the U.S. is still “recoil[ing] when it comes to direct domestic application of human rights treaty norms” in spite of its “strong external and internal human rights commitments” (p. 391). The difference is that the core contradiction in U.S. practice is redefined as a selective implementation of subsidiarity. This may, nonetheless, be a useful conceptual shift, as it reframes a difficult problem in a way that may be easier to grapple with on a policy level.

Finally, the article concludes with proposals for national human rights institutions along the lines that many other countries have created, and that exist in the United States on the local and state level. I can imagine that a national office to coordinate U.S. reporting obligations would be very useful, but I wonder whether national offices would play an effective role in the United States as compared to other countries, in light of the very active litigation-based system for enforcement of US constitutional rights. Many (though certainly not all) national human rights institutions in other countries focus much of their attention on discrimination claims, as do many of those in the U.S. at the state and local level.