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International Human Rights Law s the United States Double Standard Jack Goldsmith

he united states has long been a The atrocities of the Holocaust led the leader in the development and en- international community to change the focus T forcement of international human of international law to include governance of rights law. The United States has also long the way a nation treats its citizens. One resisted the application of international important purpose of the U.N. Charter was to human rights law to itself. Many commen- encourage respect for human rights and tators have criticized this double standard. fundamental freedoms. The U.N. General This essay oÖers a modest defense of it. Assembly’s inÔuential 1948 Universal Declara- tion on Human Rights gave content to this International aspiration, listing dozens of rights and free- Human Rights Law doms that the nations of the world should strive to promote. But the General Assembly Before World War II, the content of interna- is strictly speaking not a lawmaking body, and tional law was largely limited to inter-national thus the Universal Declaration lacked the matters such as the rules of war, maritime force of international law. boundaries, and diplomatic immunity. Under This obstacle was partially overcome when the traditional conception of international law, the aspirations of the Declaration were the way a nation treated its citizens was a codiÕed in various multilateral human rights purely domestic issue. International law did treaties. The Õrst such treaty, the Convention not regulate human rights.1 on the Prevention and Punishment of the

Jack Goldsmith is an Associate Professor of Law at the University of Chicago. Professor Goldsmith thanks Curtis Bradley, Richard Epstein, Peter Spiro, David Strauss, and Cass Sunstein for helpful discussion and comments. 1 On the pre-World War II antecedents to international human rights law, see Louis Henkin, International Law: Politics and Values 169-73 (1995).

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Crime of Genocide, was a direct response to world’s leading proponent of universal human the Holocaust. The most important human rights protections based on international law. rights treaty is the International Covenant on Franklin Roosevelt’s Four Freedoms Speech Civil and Political Rights, which protects the was a rallying cry for international human rights to life, liberty, privacy, and travel, free- rights advocates. The United States played a dom of expression, thought, conscience, and dominant role in creating foundational inter- religion, basic criminal procedure protections, national human rights instruments such as the and much more. Human rights treaties also Nuremberg Charter, the United Nations govern discrimination, children’s rights, eco- Charter, the Universal Declaration, and the nomic, social, and cultural rights, and torture. Genocide treaty. Since World War II, and Most nations of the world have ratiÕed most of especially in the last twenty-Õve years, human the major human rights treaties. In addition, rights has been a central preoccupation of Europe, the Americas, and Africa have treaty- United States foreign policy. The United based regional human rights regimes. States constantly urges nations of the world to There is also a customary international law embrace international human rights standards. of human rights. Customary international law And more than other nations, it uses military was traditionally limited to customary practices and economic leverage to force compliance that nations followed from a sense of legal with these standards. obligation. Human rights norms rarely satisfy The problem is that the United States this deÕnition, for many nations still custom- does not embrace the international human arily violate the human rights of their citizens. rights standards that it urges on others. The Accordingly, to the extent that there is any United States systematically declines to apply customary international law of human rights, international human rights law to its domes- it is based on the broad written or verbal assent tic oÓcials. All three branches of the federal to human rights norms as reÔected in multi- government perpetuate this double standard. lateral treaties, General Assembly Resolu- Consider the President. The same Presi- tions, and domestic enactments. Customary dent who urges other nations to adopt interna- international law so conceived, though contro- tional human rights law takes steps to ensure versial, is important to the eÓcacy of interna- that the United States is not subject to this tional human rights law, for it purports to law. A recent example is President Clinton’s impose obligations on nations that have not support for an International Criminal Court fully embraced human rights treaties. The on the condition that its jurisdiction be customary international law of human rights severely limited. A primary reason for this was is thought to include many of the rights in the the fear that U.S. troops and other U.S. Universal Declaration, as well as rights like government oÓcials might be subject to the freedom from slavery and torture and the right Tribunal’s jurisdiction. For similar reasons the to democratic government. President has resisted signing the Land Mine Treaty. The United States When the President is joined by his treaty- Double Standard making partner, the Senate, the same double standard prevails. The treaty-makers have con- It is no accident that the core rights guaranteed sistently declined to incorporate international by international human rights law resemble human rights treaties into domestic law. The the rights protected by the United States Genocide Convention is a prominent example. Constitution. The United States has been the It was the Õrst postwar human rights treaty. Its

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internationalization of the crime of genocide important human rights treaties as the on the heels of the Nazi atrocities should have Covenant on Economic, Social and Cultural been uncontroversial. Nonetheless, it would Rights, the Convention on the Elimination of be almost forty years after President Truman All Forms of Discrimination Against Women, sent the treaty to the Senate before that and the Convention on the Rights of the body would give its consent, and then only Child. They also explain why the human after ensuring that the treaty would have no rights treaties the Senate does consent to – domestic signiÕcance. the Genocide Convention in 1986, the Torture The objections raised to the Genocide Convention in 1991, the Political and Civil Convention would become standard re- Rights Covenant in 1992, and the Convention sponses to all human rights treaties consid- on the Elimination of All Forms of Racial ered by the United States.2 One concern was Discrimination in 1994 – are always condi- that international standards diÖer from tioned on a set of reservations, understandings, American ones and thus might threaten and declarations (RUDs) that ensure that the traditional American liberties. For example, treaties have no domestic force. many worried that the Genocide Conven- These RUDs reÔect Õve principles of tion’s prohibition on “incitement to commit American resistance to international human genocide” might infringe American concep- rights norms.4 First, the United States does tions of freedom of speech and press. not undertake an obligation prohibited by its Another concern was that the Genocide Constitution. For example, it refused to Convention would diminish American sover- accept the Civil and Political Rights Cove- eignty. For some this was a diÖuse worry nant’s prohibitions on “racial hate speech,” about international entanglements. For which might have proscribed protected First others, the concern was that the legitimacy Amendment speech. Second, the United of the American political system would be States does not assume an international subject to legal regimes beyond American human rights obligation that requires change control. Finally, many worried that the in domestic practice. For example, it refused Genocide Convention posed a threat to the to accept the Civil and Political Rights structure of American government. Not only Covenant’s prohibition on juvenile capital would it delegate U.S. lawmaking power to punishment. Third, the United States international institutions. It would also declines to submit disputes about human unduly increase the federal lawmaking power rights treaties to the jurisdiction of the Inter- of the President at the expense of the House national Court of Justice. Fourth, the United of Representatives and the Senate, and States attaches a “federalism understanding” impinge on traditional state prerogatives. to human rights treaties “to emphasize that These same objections would resurface there is no intent to alter the constitutional during the Bricker Amendment controversy in balance of authority between the State the 1950s.3 Similar objections explain why the and federal governments or to … federalize United States has still not ratiÕed such matters now within the competence of the

2 See Natalie Hevener Kaufman, Human Rights Treaties and the Senate: A History of Opposition (1990). 3 See Duane Tananbaum, The Bricker Amendment Controversy: A Test of Eisenhower’s Political Leadership (1988). 4 See Louis Henkin, U.S. RatiÕcation of Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341 (1995).

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States.”5 Finally, on the oÖ chance that these the Genocide Convention Implementation strategies do not fully immunize domestic Act, which prohibits genocide by both political structures from the force of human domestic and foreign actors.9 But even here, rights treaties, the United States additionally Congress made sure the statute did not declares all such treaties to be “non-self- create a private cause of action, thus guaran- executing,” which ensures that the treaties teeing that it has no domestic force unless do not create private causes of action the President decides to initiate a domestic that individuals could invoke in domestic prosecution.10 courts. Finally, United States courts embrace the When the House of Representatives gets human rights double standard. In the last into the act, the double standard persists. twenty years lower federal courts have For example, Congress has recently enacted revived the 219-year old Alien Tort Stat- statutes that make certain aspects of interna- ute as a jurisdictional basis to hear novel tional human rights law enforceable in civil claims by foreign plaintiÖs against domestic courts. But Congress has made foreign governmental actors for internat- sure that the federal causes of action in ional human rights violations committed these statutes cannot be invoked against on foreign soil.11 These courts have applied domestic oÓcials. The clearest example is customary international human rights law the Torture Victim’s Protection Act prohibiting torture, summary execution, (TVPA), which creates a federal private arbitrary detention, disappearance, genocide, cause of action for violating the international and cruel and degrading treatment to law prohibitions on torture and extrajudicial measure the legitimacy of foreign govern- killing.6 The TVPA applies only to acts mental acts committed abroad.12 Because committed by an individual acting under these decisions are suits by aliens against color of law of “of any foreign nation.”7 It thus aliens, the constitutional basis for juris- cannot be invoked against domestic oÓcials. diction is that the cases “arise under” The same limitation to foreign actors can be federal law. The federal law under which found in a new federal statute providing for the cases arise is the customary international federal civil liability for terrorist acts.8 law applied on the merits, which (these Congress took a diÖerent approach with courts hold) has the status of federal

5 Committee on Foreign Relations, International Covenant on Civil and Political Rights, S. Exec. Rep. No. 102-23, at 18 (1992). 6 28 U.S.C. § 1350 note, §§ 2,3. 7 28 U.S.C. § 1350 note, § 1(a) (emphasis added) 8 See Civil Liability for Acts of State Sponsored Terrorism, Pub. L. No. 104-208, § 589, 28 U.S.C. § 1605 note. 9 18 U.S.C. § 1091. 10 See id., § 1092. The recently enacted War Crimes Act of 1996, 18 U.S.C. § 2441, also creates a criminal prohibition that applies to American oÓcials, and also limits enforcement of this prohibition to the discretion of the Executive Branch. 11 The Alien Tort Statute grants federal district courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. The watershed case invoking this statute in the human rights context was Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). 12 See Beth Stephens and Michael Ratner, International Human Rights Litigation in U.S. Courts 63-78 (1996).

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common law.13 Much of international law is largely self- But if the customary international law of enforcing because nations receive mutually human rights has the status of federal beneÕcial gains from compliance. A good common law, then it should be federal law example is the law of diplomatic immunity. governing domestic and foreign governmental Whether by treaty or customary law, the activity alike. Indeed, it seems more legitimate immunity of ambassadors has been viewed as for federal courts to apply a federal common a necessary prerequisite to successful diplo- law of customary international law to the matic intercourse since at least the beginning domestic acts of U.S. oÓcials than to apply of the nation-state. This law persists because this law to foreign governmental acts of the mutual advantage it brings. Nations committed on foreign soil. Nonetheless, U.S. forgo the relatively small beneÕt of enforcing courts do not apply customary human rights local laws against foreign diplomats in order law to domestic oÓcials. They defer to to realize the broader beneÕts that accrue congressional statutes that violate customary from relations with foreign nations. But international human rights law.14 They do not unless both nations provide immunity, nei- apply customary international human rights ther will do so and both will be worse oÖ. law to limit Presidential action.15 And The model here is the iterated prisoners’ although there is a widespread academic con- dilemma. Nations involved in indeÕnite sensus that customary international human relationships will forgo private, short-term rights law should trump state law under the advantage to achieve superior long-term supremacy clause,16 U.S. courts have never beneÕts that can only be gained by mutual applied this law to the states, and show no cooperation. inclination to do so.17 International human rights law is not self- In sum, the U.S. government uses the inter- enforcing in this way. If two nations are not national human rights system to measure the inclined for purely domestic reasons to legitimacy of foreign governmental acts, but it provide a certain level of individual rights systematically declines to hold domestic acts protection to their citizens, they gain nothing to the same legal scrutiny. from a mutual promise to provide greater protection to their citizens. Assuming for the Lessons moment an absence of independent interna- tional incentives (such as forgone economic To understand the signiÕcance of the double aid, threat of military intervention, or diplo- standard, it is Õrst necessary to understand the matic ostracization), a nation that violates its special enforcement logic and poor enforce- citizens’ human rights will have no incentive ment record of international human rights law. to comply with more restrictive international

13 Curtis Bradley and I have criticized the view that customary international law is federal common law. See Curtis A. Bradley and Jack L. Goldsmith, Federal Courts and the Incorporation of International Law, 111 Harv. L. Rev. 2260 (1998); Curtis A. Bradley and Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997). 14 See, e.g., Galo-Garcia v. INS, 86 F.3d 916 (9th Cir. 1996); Garcia-Mir v. Meese, 788 F.2d 1446, 1453 (11th Cir. 1986). 15 See, e.g., United States v. Alvarez-Machain, 504 U.S. 655, 666-70 (1992); Garcia-Mir, 788 F.2d at 1453. 16 See, e.g., Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555 (1984). 17 See, e.g., State v. Ross, 886 P.2d 1354, 1358 (Ariz. 1994); cf. Stanford v. Kentucky, 492 U.S. 361, 370 n.1 (1989) (emphasizing in Eighth Amendment capital punishment case that “it is American concep- tions of decency that are dispositive”).

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human rights norms.18 sure of a nation’s human rights abuses can For this reason, the eÓcacy of international result in a variety of low-level sanctions. It human rights law in a nation not otherwise can, for example, lead to ostracization of inclined to obey this law depends on the elites along the many points of diplomatic and willingness of other nations to sanction non- economic interaction. Or it can cause an compliance. The problem is that nations rarely increase in pressure for broader sanctions by expend the military or economic resources interested groups in other countries. For needed to alter the way another nation treats example, Christian groups are putting enor- its citizens. Severe public sanctions for viola- mous pressure on Congress to sanction tions of human rights are usually limited to governments that commit acts of religious two situations in which nations have special persecution, and non-governmental organiza- enforcement incentives. The Õrst occurs when tions often pressure corporations to alter one nation’s human rights violations threaten business practices in countries that abuse signiÕcant adverse consequences for another human rights. These relatively low-level nation. This explains the United States’ inter- responses to human rights abuses have vary- vention in the former Yugoslavia and Haiti. A ing eÖects on the behavior of nations that second context for likely human rights violate human rights. At the margin they enforcement is when a government receives must have some eÖect, for some nations domestic political beneÕts from unilateral otherwise inclined to violate international enforcement, and the costs of such enforce- standards do take steps to avoid exposure of ment – in economic or military terms – are illegal acts, and often engage in sporadic and low. Examples of this phenomenon are U.S. nominal acts of compliance (such as releasing economic sanctions against weak and unpopu- a dissident prisoner or announcing new lar countries like Cuba and Myanmar. In gen- human rights aspirations). But this eÖect is eral, nations will not enforce international often indiscernible, and conÕrms international human rights law if enforcement is costly and human rights law’s generally poor enforce- the strategic beneÕts of enforcement are low ment record. or uncertain. This explains the paucity of Underenforcement of international human human rights law enforcement against China rights law feeds noncompliance with that law. and Saudi Arabia. The content of human rights treaties is signiÕ- There are of course more subtle sanction- cantly inÔuenced by human rights activists ing methods. Although nations regularly fail within governments and progressive organiza- to comply with international human rights tions such as the United Nations General law, no nation publicly declares a prerogative Assembly, Human Rights Watch, and to commit human rights abuses against its cit- Amnesty International. For this reason among izens, and every nation takes steps to avoid others, the human rights treaties presented for exposure of, or at least to justify, such abuse. national ratiÕcation are invariably more This phenomenon reÔects the human rights protective of human rights than domestic legal community’s success in making human rights systems. Weak and sporadic enforcement a matter of international concern, as well means that a nation can through ratiÕcation as more eÖective communication tools for minimize the stigma of non-ratiÕcation at exposing human rights abuses. Today expo- little if any cost to its domestic political ar-

18 Cf. Stephen Krasner, Sovereignty, Regimes, and Human Rights, in Regime Theory and Interna- tional Relations 139 (Volker Rittberger ed., 1993).

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rangement. There is even less reason for a States does not typically urge substantive stan- nation not to ratify an aspirational human dards on other countries that it does not itself rights treaty if, as many academic commenta- abide by. It does not, for example, claim that tors believe, customary international law inde- other countries violate human rights law when pendently imposes on the nation certain they execute minors for capital crimes. The human rights obligations regardless of United States tends only to press those human whether it has ratiÕed a treaty in which the rights norms abroad that its domestic law obligation might also be found. These factors protects at home. help explain why the Civil and Political Rights Moreover, despite its unwillingness to Covenant has been ratiÕed by such human enforce international human rights law against rights champions as Afghanistan, Algeria, U.S. oÓcials, the United States remains one of Columbia, Croatia, Guatemala, Iraq, North the greatest protectors of individual rights in Korea, Libya, Serbia, and Sudan. China, too, the world by virtue of its domestic constitu- recently announced that it would ratify the tional and democratic processes. Many human Covenant. rights activists contend that the United States We can now better understand how and nonetheless violates international human why the United States perpetuates the double rights law with respect to immigration prac- standard. The explanation is not subtle. The tices, police abuse, custodial treatment and United States declines to embrace interna- conditions, the death penalty, and discrimina- tional human rights law because it can. Like tion.19 There is always room for the United other nations, the United States wants the States to improve on these and other human beneÕts from an international human rights rights fronts. But the charge that the United regime with as little disruption as possible to States violates international law in these its domestic political order. Unlike most other respects is almost always an exaggeration. This nations, the United States’ paramount charge is usually based on a non-rigorous economic and military power, combined with understanding of international law that its dominance of international institutions, eschews its fundamental grounding in state means that it is largely immune from both consent. The many reservations, understand- formal international sanctions and the variety ings, and declarations to human rights treaties of less formal, lower-level sanctions. General that these activists complain about are satisfaction with domestic human rights designed to ensure that the United States does protections, combined with a suspicion of not consent to international obligations that it international processes, mean that NGO and cannot abide by domestically. It is precisely to foreign government attempts to stigmatize the avoid hypocrisy that the United States resists United States for noncompliance with human certain international human rights obliga- rights law fall Ôat. tions. The notion that the United States is This explanation for the double standard nonetheless bound by a customary interna- does not, of course, speak to its normative tional law of human rights because of an inter- attractiveness. Many criticize the standard as national consensus to which it does not adhere hypocritical. This charge, however, is too represents a radical and thus far unaccepted casually made. Hypocrisy is the act of profess- conception of international law. ing virtues that one does not hold. The United If the United States double standard

19 See, e.g., Human Rights Watch World Report 1998; U.N. Commission on Human Rights, Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions ( Jan. 19, 1998).

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evinces hypocrisy, it is because the United human rights law in a diÖerent way. The inter- States urges other nations to embrace interna- national human rights movement presents its tional human rights treaties that the United aspirational moral and political goals as a form States itself either does not ratify or does not of law. The purposeful space between law and enforce domestically. Even here the double compliance is then used as a basis for pressur- standard is not necessarily hypocritical. Inter- ing governments (through the various meth- national law’s treatment of nations as equals is ods discussed above) into ratcheting up their a Õction. There is much less moral and politi- human rights protections. The eÖectiveness of cal justiÕcation for imposing human rights this pressure might depend on the perceived obligations on the United States than there is legitimacy of human rights law. And the U.S. for imposing these obligations on Myanmar or double standard might undermine this legiti- China or Rwanda. International human rights macy by revealing the legal system itself to be law is primarily designed for nations with little more than an exercise in international domestic institutions that do not hold the politics. On this view, the U.S. double promise for generating adequate human rights standard reduces the gravitational moral pull protections. of human rights law. But perhaps there is a connection between There is little evidence that compliance the United States’ failure to embrace interna- with human rights law depends on the tional human rights law and the poor compli- perceived legitimacy of the international legal ance records of nations that abuse human system, as opposed to the legitimacy of partic- rights. Perhaps the United States’ failure to ular moral norms – such as a prohibition on subject itself to these international processes torture – that might or might not be instanti- undermines its moral authority to enforce ated in an international law binding on a human rights. It is not at all clear, however, particular nation. China has not yet signed the that the eÓcacy of international human rights Civil and Political Rights Convention, and law depends on moral authority in this way. cannot reasonably be viewed as having Compliance with human rights law depends embraced an international custom of protect- on the costs of non-compliance. EÖective ing civil and political rights. But it is nonethe- coercive measures are usually carried out by less a frequent focus of criticism for violating or with the support of the United States, the civil rights of its citizens, because these usually after a careful calculation that the acts are viewed as morally wrong independent beneÕts to the United States’ strategic posi- of their illegality. It is true, of course, that criti- tion outweigh the costs of enforcement. The cism of a country’s human rights record is eÓcacy of these measures is not likely to be often dressed up in the language of illegality. aÖected by the extent to which the United But this rhetoric rarely depends on careful States itself engages the international human arguments about legality, and both the content rights law process. The success of U.S. sanc- and sources of international human rights law tions in Bosnia, or the United States’ ability to are much too diÖuse for illegality to be the bestow (or withhold) status in international criterion of opprobrium it is in domestic legal organizations, is unaÖected by the United systems. It is the moral quality of the acts in States practice of executing juvenile murderers question, not their illegality, that actually or its failure to ratify the Rights of the Child triggers the international community’s oppro- Convention. brium. The successful characterization of an The United States double standard might act as “illegal” can of course change percep- undermine the eÖectiveness of international tions about the moral worth of the act, but it is

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moral worth, and not legality, that counts. standard rarely consider the latter option, but Finally, even if the United States double if legitimacy is the goal, modesty might be the standard does aÖect the legitimacy of the most eÖective option. The point here is international human rights law system, it does something that critics of the double standard not follow that, as many believe, the United tend to ignore: international human rights law States should incorporate international hu- inevitably involves a trade-oÖ between ambi- man rights law into its domestic system. This tion and legitimacy. demand is unrealistic because of the wide- A second possible response is that the spread domestic opposition to international United States should stop enforcing human human rights law. It also ignores two other rights norms against other countries. Such a possible responses that are both more realistic course would alleviate any hypocrisy that and more sensitive to the relative costs of inheres in the double standard. But it would particular institutional arrangements. harm the promotion of international human One possible response is that international rights. A United States double standard is in human rights law is too ambitious. This this sense preferable to no enforcement at all. law could, and perhaps should, narrow its This shows that the pertinent question to ask legitimacy gap by modifying its universalistic about the double standard is not whether it is pretensions and lowering its aspirations. good or bad. The pertinent question is Many of the reasons for United States whether it is better or worse than the feasible resistance to international human rights law – alternatives. Without United States enforce- distrust of international institutions, desire to ment pressure, international human rights law maintain local cultural and political diÖerence, would be even less eÓcacious than it already satisfaction with domestic political systems, is. And there would be no United States preservation of sovereignty and the related enforcement if the United States were itself beneÕts of self-government – explain other subject to the same potential sanctions it im- countries’ resistance to this law. It is unclear poses on others. The United States double which regime leads to more eÖective respect standard is one price the international com- for human rights: One that is extremely munity pays for the important beneÕt of ambitious, but suÖers a legitimacy deÕcit United States enforcement. Fortunately, the because of the inevitable gap between United States does not need external legal aspiration and compliance; or one that is less processes or the threat of external sanctions in ambitious but suÖers less of a legitimacy gap. order to provide its citizens and residents with Criticisms of the United States double prodigious human rights protections. B

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