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Interactive Dialogue with the Special Rapporteur on Human Rights
March 8, 2010

Human Rights Council – Archive Photo


Interactive Dialogue with the Special Rapporteur on Human Rights
While Countering Terrorism and the Special Rapporteur on Torture
Agenda Item 3

Statement by the Delegation of the United States of America
Delivered by Political Counselor Mark Cassayre
Human Rights Council 13th Session

Geneva, March 5, 2010

Thank you, Mr. President. Thank you also to the Special Rapporteurs for their presentations. The issues covered in this section are of great import to the United States.

While we may have disagreements on substantive issues, such substantive disagreements should not be misinterpreted as attacks on the independence of Special Procedures. We strongly support their work, and we recognize that these Special Mechanisms are often able to achieve results where others, including States, cannot. They provide an important resource for us all, in our efforts to comply with our international human rights obligations and to encourage respect for human rights and fundamental freedoms throughout the world.

While States may disagree with mandate holders over factual or legal issues, we encourage them to engage with special rapporteurs in a constructive manner, and we appreciate the efforts of mandate holders to do the same. States should defend the independence of the Special Mechanisms in general, even when it is not politically convenient to do so. For this reason, we supported the Special Rapporteurs’ efforts to present their report on Secret Detentions during the normal Interactive Dialogue process this session, even though over 50 pages contain allegations against our country, and despite serious substantive concerns and disagreements with the report. Similarly, we were concerned and dismayed by the account the Rapporteur on Torture gave of States not responding to or denying his visit requests, postponing visits at the last minute or obstructing his fact-finding activities during visits. We encourage States to welcome the Special Rapporteur to engage with them on matters within his mandate.

We turn now to the substantive issues in the reports presented today.

First, we note with great concern the Special Rapporteur on Torture’s conclusion that in the vast majority of States, torture not only occurs in isolated cases, but is practiced in a more regular, widespread or even systematic manner. We join in his recommendation that States that have not already done so become parties to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and that all States Parties fully implement the Convention’s provisions.

The Special Rapporteur further states in his report complaint mechanisms are a safeguard where the legally required protection differs from reality in a glaring and devastating way. We would be interested in his elaboration on what he believes to be the key elements necessary for an effective complaint mechanism at the local, national, and international levels.

Secondly, regarding the report by the Special Rapporteur on the Protection of Human Rights while Countering Terrorism: We appreciate the depth and thoughtfulness of his analysis of privacy issues, and there is much in the report with which the United States Government can wholeheartedly agree.

For example, we agree with the connections made between privacy, freedom of expression and freedom of association in paragraph 33 of the report. We also believe strongly in promoting free expression on the Internet and recognize the chilling effect that government surveillance can have on such freedoms. We also believe that privacy and information security should be central considerations in information-sharing related to law enforcement and intelligence-gathering.

Ensuring protection from arbitrary or unlawful interference with privacy in the context of counterterrorism is an extraordinarily complicated issue, and the most effective tools and methods may vary for each state. We believe it is important to recognize that there may not be a “one size fits” all approach. For example, the Special Rapporteur’s report suggests that the “best practice” for any democratic society would be to adopt a very detailed constitutional right to data protection, which in some cases governs data processing in both the public and private or commercial sectors. This might be the best solution for some states, but we are not convinced that such a constitutional amendment would be effective, necessary or feasible for all states.

Furthermore, while we agree that data protection is indeed a growing area of concern, we would not necessarily agree that it is an independent human right distinct from the broader right to privacy. We would like to know whether the Special Rapporteur sees data protection emerging as a right separate from the right to privacy in contexts other than in European constitutional law and among EU member states. We disagree that there needs to be a new declaration on data protection and privacy, because the right to privacy is already enshrined in international human rights instruments. We also note that there are existing international and regional frameworks that deal specifically with personal data and privacy, from a technical as well as a human rights perspective.

Thank you once again for your presentations, and we look forward to continuing to work with you on these important issues. We also take this opportunity to thank Professor Nowak for his many years working in this capacity. We wish you well in your future endeavors.

Thank you, Mr. President.