Human Rights as Human Rights: Generating Enforceable Human Rights Standards by Shifting the Intrastate Solution from Moral Rhetoric to Strategic Legal Discourse (Part II)

[Marissa Kardon Weber is a prosecutor in New York City and serves as a Legal Consultant for the Seychelles Truth, Reconciliation and National Unity Commission on matters regarding grants of amnesty under international human rights law. The views expressed herein are entirely her own. Part I can be found here.] 

C. Step 3: Dialogue

Now, the citizenry is better equipped to generate shared frames that communicate a clear and uniform understanding of domestic law and policy’s role in the international legal sphere. In order to illustrate the application of this strategic discourse, I briefly discuss and analyze two controversial contexts in which a considerable portion of the citizenry arguably perceives state oppression that might amount to violations of their human rights.

1. Torture as “separation of families”

On 10 December 1984, the United Nations General Assembly adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In 1994, the United States ratified the Convention, binding itself to uphold this right on all levels of government. However, its ratification was subject to numerous reservations, understandings, and declarations, including that the Convention was not self-executing. While Congress ultimately executed the Convention by enacting statutes and regulations, it still left gaps that negated protections under the Convention and limited its implementation and enforcement commitments.

Notwithstanding the fact that these limitations might pose barriers to alleging and pursuing causes of action under the Convention, torture is a principle of jus cogens, against which there is an absolute prohibition under international law. This status obligates all states, regardless of explicit action or consent, to prohibit torture and to take action against those who torture. Falling short of such obligations amounts to  a violation of international human rights law. Here, the obligations are the elements of torture:

            1. The intentional commission of severe pain or suffering, whether physical or mental;

            2. That is inflicted for a particular purpose (to obtain information, to punish the victim or another,                                   to intimidate the victim or another, or for any reason based upon discrimination); and

            3. That is inflicted with the consent or acquiescence of a state actor.

One application of domestic policy that arguably satisfies these elements, and for which the citizenry can help to hold its government accountable, is the United States’ 2018 “zero-tolerance policy” concerning the separation of immigrant families upon entering the country. In writing, the policy intended to criminally prosecute 100% of immigrants crossing the United States-Mexico border with their children and without prior authorization. In practice, the policy not only deterred immigration, but punished children for action taken by their parents. This punishment included separating children from their parents and siblings for an indefinite period – sometimes for months at a time – while living in cages in former warehouses, sleeping on concrete floors in cold temperatures, and, in some cases, dying due to neglected health care.

State actors carried out this government policy to punish and deter immigrants, undoubtedly resulting in severe physical and mental suffering. For instance, the American Academy of Pediatrics declared that the effects of the policy amounted to “cruel and unusual punishment” by the government. Further, Nils Melzer, the current United Nations Special Rapporteur on the topic, wrote in a 2018 report that the state practice of  using force “for no purpose other than to deter” might constitute torture.           

Generally speaking, the government grounds this policy in terms of “deterring illegal immigration” while the citizenry discusses it in terms of “separation of families.” While there are initiatives and organizations that reference it in terms of “torture,” “cruel and unusual punishment,” and “arbitrary detention,” this dialogue is largely used by international actors and rarely reaches the media. The citizenry can adopt this discourse into shared frames that carry legal weight and are recognizable under international human rights law. This recommendation is not a conclusion that the United States is guilty of such conduct. Instead, it is a suggestion that these shared frames are necessary and appropriate given the legitimate concerns about this conduct in light of the aforementioned elements of torture. The use of these shared frames might help to “set the possibilities for transformative change in the implementation phase” of domestic human rights reforms.

2. Freedom of information and right to health as “Denial of science in times of public health crises”

Another pertinent example of state oppression is where states fall short of their obligation to uphold the “right to health.” Since the adoption of the Constitution of the World Health Organization (“WHO”) in 1946, the international community has expressly recognized this fundamental right.

In the context of the COVID-19 pandemic and human rights law, this right is intertwined with the “right to freedom of […] expression,” which includes the right to “seek, receive and impart information and ideas of all kinds.” The United Nations Special Rapporteur on the Right to Health has found that, in public health emergencies, states have an obligation to the public that “an effective emergency response system requires the public to be provided with useful, timely, truthful, consistent and appropriate information promptly throughout.”

Under Article 19 of both the Universal Declaration of Human Rights (“UDHR”) and the International Covenant on Civil and Political Rights (“ICCPR”), states are obligated to uphold the “right to information” as a fundamental element of the “right to expression.” General Comment No. 14 of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) reaffirms that the “right to health […] is dependent upon the realization of other human rights” and integral components including the “core obligation” of “access to information.”

While only the latter of the UDHR, WHO Constitution, and ICCPR is a treaty, all three arguably constitute customary international law. Even so, the non-binding status of the former two makes the citizenry’s dialogue on the “right to health” more important. For instance, some states might use this status to embrace “exceptionalism,” as if the standards enumerated in the Declaration and Constitution don’t apply to them. If the citizenry can articulate the oppression they endure in the context of the “right to health,” it might help to hold oppressive state conduct up against the accurate legal obligations – whether in the court of law to set precedent or in the court of international public opinion.

The COVID-19 pandemic is an example of where shared frames might be useful. The rights to health and information are enshrined in the WHO Constitution, of which every United Nations Member State except Lichtenstein is a Member. Therefore, many states might be in violation of these fundamental obligations in their responses to the pandemic by: politicizing responses to the pandemic; withdrawing from the WHO in the midst of the crisis, which, inter alia, impedes the deployment of resources to developing states; passing emergency legislation to limit access to information such as through internet shutdowns; keeping accurate information from the citizenry; knowingly disseminating disinformation; or failing to equip communities with the resources they need to prevent, treat, and control the virus leading to access inequities. These apparent state decisions have directly and indirectly caused deaths and exacerbated suffering globally.

There are undoubtedly people who use and understand the terms “right to health” and “right to information” when analyzing and challenging state oppression in the midst of COVID-19. In his April 2020 report to the United Nations Human Rights Council, United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, outlined how states’ repression of expression is directly impacting public health. #KeepItOn, a coalition of over 210 organizations from over 75 countries, expounded on this in appealing to the WHO to urge the governments of Bangladesh, India, Myanmar, and Pakistan to end ongoing internet shutdowns during the pandemic. These shutdowns deprive citizenries of life-saving information amid the pandemic and repress their rights to health and information under international human rights law.

This interstate dialogue is crucial, but there must be complementary intrastate dialogue between governments and their citizens. For example, the United States is currently a member of the WHO and, in any event, obligated to uphold the rights to health, expression, and information. The government has implemented domestic policies that have countered the back-to-school guidelines recommended by the Center for Disease Control (“CDC”) and have required hospitals to bypass the CDC and submit COVID-19 data directly to the White House, which initially failed to make such data available to the public. These policies are highly controversial among Americans, with dissenters arguing that they could “undermine our nation’s public health experts” and sow “confusion and mistrust.” In other words, these dissenters, regardless of validity, are arguing that the government is repressing their rights to health and information. By choosing to dissent through these shared frames, the citizenry chooses to enter the international human rights conversation and the mechanisms and pressures that come with it.

D. Step 4: Potential Outcome

This framework is not about simply changing language and expecting expedient accountability to result. It is about confronting the discomfort of self-inquiry to challenge how we view our relationship with our domestic leaders and the standards they should be held to. These steps can help the citizenry undo this “messier realm of social customs” to which it unwittingly contributes.

Legal and sociological experts consider global and domestic crises as insightful disruptors that can both reveal flaws in our norms and push them to evolve, generating tremendous change. International legal expert Oona Hathaway suggests that “major shifts in human rights practices” have occurred in specific response to “major shocks to the system [which] provide limited windows of opportunity” to effectuate large-scale change. We have seen this in the geneses of countless institutions, such as the United Nations, and institutional reforms, such as the Paris Agreement. Ultimately, we must take advantage of crises that implicate human rights and garner zealous response of the citizenry – to create shared frames from the onset in hopes of contributing to major shifts in domestic human rights practices.

The citizenry – including activists, lobbyists, educators, lawyers, non-governmental organizations, and everyone in between – can shape how its state responds to oppression at all levels. More specifically, it can affect how legislators write laws, how the judiciary interprets them and sets precedent, and the tools with which younger generations will be equipped to engage in more effective dialogue. This unified response can help make domestic orders more recognizable, and therefore accountable, under the international legal order.

III. Conclusion

The shift from independent regulation above the state to direct engagement with it has been in motion for decades. Even so, direct engagement by the citizenry, who make up part of the state, might enable more foundational change.

Just as Nicholas Kristof and Sheryl WuDunn wrote about the untidy, “messier realm of oppressive social customs” that persist through the contributions of both perpetrators and victims, political theorist Judith Shklar wrote that “these inequities are not misfortunes of nature but inequities socialized into the fabric of social and political life that drive even well-intentioned global health and human rights institutions.” As the fabric of a state’s social and political life, the citizenry must be given the tools to change it.

So, how can we challenge socialized norms to evolve in their reflection of human rights? How can we hold those clinging to oppressive norms accountable in more thoughtful and foundational ways that can strengthen our domestic institutions and compel them to adhere to international human rights standards? We can first hold ourselves, the citizenry, accountable.