I understand the rationale behind the Obama Administration’s policy of engagement with the U.N. Human Rights Council.  So I understand why U.S. delegates subjected themselves to sharp and sometimes ridiculous criticism by other states during a session yesterday on United States human rights practices.

A delegation of top officials, led by Assistant Secretary of State Esther Brimmer, gave diplomats at the U.N. Human Rights Council a detailed account of U.S. human rights shortcomings and the Obama administration’s efforts to redress them. It marked the first time the United States has subjected its rights record to examination before the Geneva-based council, as part of a procedure that requires all states to allow their counterparts to grade their conduct.

Several delegations camped out overnight to be first in line to criticize Washington, with the initial few speakers including Cuba, Iran and Venezuela.

…

The United States’ most vociferous critics – Cuba, Iran, Nicaragua, North Korea and Venezuela – opened the session with a string of highly critical accounts of U.S. policies, denouncing detention policies from Abu Ghraib to Guantanamo Bay and characterizing the embargo on Cuba as an act of genocide. Cuba and Nicaragua also called for the release of five Cuban intelligence officials held by U.S. authorities on espionage charges and for the prosecution of Luis Posada Carriles, the alleged mastermind of the 1976 terrorist bombing of a Cuban airliner.

“The United States of America, since its very origin, has used force indiscriminately as the central pillar of its policy of conquest and expansionism, causing death and destruction,” said Nicaragua’s envoy, Carlos Robelo Raffone. “We would like to forget the past . . . but unfortunately, the United States of America, which pretends to be the guardian of human rights in the world, questioning other countries, has been and continues to be the one which most systematically violates human rights.”

All of this is a bit hard to swallow (do we really need to hear from North Korea on human rights? And would human rights really be better off if, say Nicaragua or Venezuela was guarding it?). But it might be worth swallowing hypocrisy if, say, down the road, U.S. criticisms of other countries had some impact or influence.

But I think it is fair to say that the UN Human Rights Council is almost completely a political show without any serious policy impact or legal significance.  There is no evidence that states change their behavior due to the HRC’s criticism.  Does anyone think Cuba will suddenly release political prisoners due to HRC criticism?  Moreover, as far as I can tell, the HRC sessions use human rights law as political slogans, but nothing more.  No one attempts to seriously apply legal principles to measure human rights behavior.  If they did, they wouldn’t be able to claim with a straight face that the embargo on Cuba is “genocide.”

The HRC has no legally binding authority (or much moral authority) anyway.  Mostly, it just serves to further damage the U.N.’s image in the United States, a dangerous thing to do now that the Republican House is back in charge of U.N. funding.

I’ve heard that the docket for the European Court of Human Rights is out of control, but a backlog of 120,000* cases is a little ridiculous.

There is no doubt about the seriousness of the situation in Strasbourg. Jean-Paul Costa, president of the European Court of Human Rights, has referred to it as extremely disturbing. The parliamentary assembly of the Council of Europe, which is responsible for the institution, has said the court threatens to suffocate.

A count late last year showed ‘Strasbourg’ has a backlog of over 119,300 cases, all complaints from European citizens who feel their human rights have been in some way violated. They did not get their way in their home countries and decided to plead their case at a higher level. Strasbourg is their last resort.

Reforms are planned. But given the size of the backlog, serious reforms are needed.

*Corrected from original post, which said “140,000″.

The Academic Council on the United Nations System (ACUNS), in partnership with ASIL and the One Earth Future Foundation, have released a report entitled: “Suppressing Maritime Piracy: Exploring the Options in International Law”.  It is a useful report, and it is the product of a very smart and knowledgeable group of international law experts including friends of this blog like John Bellinger, Eugene Kontorovich, David Glazier, and Beth Van Schaack.  But like many of these committee panel reports, it doesn’t really come to any conclusion or consensus on the legal problem of how to encourage nations to punish piracy (at least not as far as I can tell).  But it is at least a start in the conversation.  My own view is that nations just won’t have the right incentives here and that ultimately, this is going to be dealt with by better self-help mechanisms on merchant ships. But I defer to the judgments of these experts, whose ideas a worth reading.

I thank Kevin for his extensive and thoughtful response to my post. You touched on many issues which I hope to address systematically in subsequent posts, such as the illegality of the settlers presence. I’m going to try to avoid getting into those issues right now, since this post (like yours before it) is already quite long. I apologize in advance for typos.

Two points of clarification. What prompted my post is a comment by Sen. Mitchell that the administration wants to see a freeze in settlement growth as measured by births. If, as you suggest, the settlers accepted increasingly crowded conditions and their population continued to grow apace, I do not think this would be considered as satisfying a settlement freeze. If the Administration made clear that Jewish population growth through births was not a problem — they don’t mind if the Jewish population doubles so long as the live on top of each other — I would agree with my critics that this is not about genocide/ethnic cleansing. The problem is Jews not Jewish houses. The Palestinians want a state free of Jews, not of Jewish-built houses. Note that all peace plans contemplate the removal of the Jews, not of the roads, houses and other facilities they have built. This is the significance of Mitchell’s comment about births. If there are still births, that means the screws have not been twisted tightly enough.

Second, I don’t want to sell the Genocide point too strongly because I agree that it might “just” be ethnic cleansing. I’m quite open to the possibility that this is not the actus reus of genocide, but rather just flirting with it. Why that makes any liberal-minded person feel better is beyond me, as we well explore below as I engage some of Kevin’s points, grouped into two headings: 1) does it prima facie violate the Genocide Convention; 2) is there some warrant or excuse for sometimes violating it?

1. Human Rights Originalism.

We are not discussing whether Israel can forcibly remove them for military necessity – though by the way, I think invocations of such Art, 49 provisions applied to only one ethnicity would be highly suspect these days. We are talking about whether the U.S. can seek their removal for diplomatic reasons.

You argue that the Genocide Convention’s ban on “measures designed to prevent births” is limited to the kind of methods used in World War II by the Germans. That’s a fair point and not one that I would rule out. It depends on whether we are human rights treaty Originalists or Textualists. I know many of my conservative friends would be delighted to find Originalism alive and well in international law. But keep in mind that the same kind of questions arises with the Geneva Convention itself. An originalist approach to both treaties would say neither the settlements nor the ban on their natural growth violates international law….

The UN Human Rights Council adopted a resolution last week on “Human Rights and Climate Change,” in follow up to the January  report by the Office of the High Commissioner on Human Rights on the Relationship between Climate Change and Human Rights,

The Council resolution is significant less for what it says than for the fact of its adoption, which reflects the growing interconnections between the worlds of climate change and human rights.  The resolution notes that “climate change-related effects have a wide range of implications … for the enjoyment of human rights” and “affirms” that “human rights obligations and commitments have the potential to inform and strengthen international and national policy-making in the area of climate change, promoting policy coherence, legitimacy and sustainable outcomes.”  But the Council’s only concrete decision was to hold a panel discussion on climate change and human rights next year.

I’m all in favor of letting a thousand flowers bloom in the effort to combat climate change, and can understand the appeal of human rights approaches. . .