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Points of Clarification on Resolutions Adopted at the 49th Human Rights Council
April 20, 2022

Statement of the United States of America
Providing clarifications with respect to resolutions adopted by HRC49
that the United States co-sponsored or for which the United States joined consensus

During this 49th regular session of the UN Human Rights Council (HRC), the United States co-sponsored 19 resolutions and joined consensus on important thematic priorities such as human rights defenders and freedom of religion of belief, and on country-specific priorities such as South Sudan, Burma, and DPRK.

We take this opportunity to provide important points of clarification with respect to resolutions adopted by the Human Rights Council at its 49th regular session that the United States co-sponsored or for which the United States otherwise joined consensus.

As a general matter, we underscore that HRC resolutions are nonbinding documents that do not create rights or obligations under international law.  HRC resolutions do not change the current state of conventional or customary international law and do not change the body of international law applicable to any particular situation discussed or referred to in a resolution. Nor do we read resolutions to imply that States must join or implement obligations under international instruments to which they are not a party; any reaffirmation of prior instruments in these resolutions applies only to those States that affirmed them initially.  It is the prerogative of each State to decide which treaties to join. We understand abbreviated references to certain human rights in HRC resolutions to be shorthand references for the more accurate and widely accepted terms used in the applicable treaties or the Universal Declaration of Human Rights, and we maintain our long-standing positions on those rights. With respect to language referring to global issues affecting or impacting all human rights, we understand such statements in the context of reaffirming that human rights and fundamental freedoms are universal, indivisible, interrelated, interdependent, and mutually reinforcing.  We do not understand such language to necessarily imply specific impacts on the enjoyment of individual human rights.  We also reiterate our long-standing position that the International Covenant on Civil and Political Rights (ICCPR) applies only to individuals who are both within the territory of a State Party and subject to its jurisdiction.

The United States continues to reject the argument advanced by some delegations that criticism of States’ human rights records constitutes impermissible interference in their domestic affairs.   Professed concerns about sovereignty cannot be used as a shield to prevent scrutiny from the Council, and states have a responsibility to promote respect for human rights.

While the United States strongly supports the use of measures to prevent or protect individuals from acts of violence committed by non-State actors, we clarify that international human rights law does not obligate States to take such measures.  We note that co-sponsorship of, or otherwise joining consensus on, HRC resolutions does not imply endorsement of the views of special rapporteurs or other special procedures mandate-holders as to the contents or application of international law or U.S. obligations thereunder.

Specific Points of Clarification

2030 Agenda for Sustainable Development (2030 Agenda): The United States recognizes the 2030 Agenda as a voluntary global framework for sustainable development that can help put the world on a more sustainable and resilient path and advance global peace and prosperity.  We applaud the call for shared responsibility, including national responsibility in the 2030 Agenda, and emphasize that all countries have a role to play in achieving its vision.  The 2030 Agenda recognizes that each country must work toward implementation in accordance with its own national policies and priorities.  We support the 2030 Agenda and are committed to working toward the achievement of its Sustainable Development Goals.  The United States also underscores that paragraph 18 of the 2030 Agenda calls for countries to implement the Agenda in a manner that is consistent with the rights and obligations of States under international law.  We also highlight our mutual recognition in paragraph 58 that 2030 Agenda implementation must respect, and be without prejudice to, the independent mandates of other institutions and processes, including negotiations, and does not prejudge or serve as precedent for decisions and actions underway in other fora.  For example, the 2030 Agenda does not represent a commitment to provide new market access for goods or services.  The Agenda also does not affect the interpretation of or alter any World Trade Organization agreement or decision, including with respect to the Agreement on Trade-Related Aspects of Intellectual Property Rights. Further, citizen-responsive governance, including respect for human rights, sound economic policy and fiscal management, government transparency, and the rule of law, are essential to the implementation of the 2030 Agenda.

The “Right to Development”: The “right to development,” is not recognized in any of the core UN human rights conventions, and, in any case, does not have an agreed international meaning.

Economic, Social, and Cultural Rights: As the International Covenant on Economic, Social, and Cultural Rights (ICESCR) provides, each State Party undertakes to take the steps set out in Article 2(1) “with a view to achieving progressively the full realization of the rights.”  We note that countries have a wide array of policies and actions that may be appropriate in promoting the progressive realization of economic, social, and cultural rights. Therefore, we believe that these resolutions should not try to define the content of those rights. The United States is not a party to the ICESCR, and the rights contained therein are not justiciable as such in U.S. courts. Further, to the extent resolutions refer to the right to water and sanitation, we understand this right to be derived from the right to an adequate standard of living.  Similarly, we understand references to the right to housing, as recognized in the ICESCR, to refer to the right as a component of the right to an adequate standard of living.

Measures Restricting Human Rights: The ICCPR sets forth the conditions for permissible restrictions on certain human rights, including that any such restrictions must be in conformity with law and necessary in a democratic society for, inter alia, the protection of public health.  The language in these resolutions in no way alters or adds to those provisions, nor does it inform the United States’ understanding of its obligations under the ICCPR.  We do not read references in resolutions to specific principles, including proportionality and transparency, to imply that States have an obligation under international law to apply or act in accordance with those principles.

Justice and Accountability: The United States strongly supports calls for justice and accountability for perpetrators of human rights violations and abuses.  We understand language regarding the responsibility of States to prosecute those responsible for violations of international law and human rights abuses to refer only to those actions that constitute criminal violations under applicable law and understand references to State “obligations” to prosecute in light of applicable international obligations.

Privacy: Given differences in views as to the meaning and scope of privacy as a human right, the United States does not support use of the term “right to privacy.” To the extent this term is used in resolutions that we support, we read it as specifically referencing the right not to be subjected to arbitrary or unlawful interference with one’s privacy as set forth in Article 17 of the ICCPR. We further note our understanding that expressions of concern regarding interference with anonymity and encryption tools specifically refer to situations where such interference is arbitrary or unlawful.

International Humanitarian Law: The United States is deeply committed to promoting respect for international humanitarian law (IHL) and the protection of civilians in armed conflict. We note that IHL and international human rights law are in many respects complementary and mutually reinforcing. However, we understand that, with respect to references in these resolutions to both bodies of law in situations of armed conflict, such references refer to those bodies of law only to the extent that each is applicable.  We do not necessarily understand references to “conflict”, “IHL”, or IHL terms of art in these resolutions to mean that, as a matter of law, an armed conflict exists in a particular country or to supplant States’ existing obligations under IHL.

International Refugee Law: The United States strongly supports and advocates for the protection of refugees and other displaced persons around the world, and we urge all States to respect the principle of non-refoulement, while also supporting safe, dignified, and sustainable repatriation or return of migrants ineligible to remain.  In underscoring our support for this principle, we wish to clarify that U.S. international obligations with respect to non-refoulement are the provisions contained in Article 33 of the 1951 Convention relating to the Status of Refugees (applicable to the United States by its incorporation in the 1967 Protocol relating to the Status of Refugees) and in Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  We note that we understand references to international refugee law in certain resolutions to be referring to the obligations of States under the relevant treaties to which they are party.

Recognition of a Right to a Clean, Healthy, and Sustainable Environment: The United States is committed to taking ambitious action to address environmental challenges, including continuing our work with international partners to share our experience with concrete domestic actions to protect the environment.  We also recognize that climate change and environmental degradation impact the enjoyment of human rights and affirm that when taking action to address environmental challenges and climate change, States should respect their respective human rights obligations.  Nevertheless, the United States has consistently reiterated that there are no universally recognized human rights specifically related to the environment, and we do not believe there is a basis in international law to recognize a “right to a clean, healthy, and sustainable environment,” either as an independent right or a right derived from existing rights.  Furthermore, we do not consider the resolution introduced in the 48th regular session recognizing a right to clean, healthy and sustainable environment to be an appropriate means of attempting to elaborate a new and undefined right, and we do not see this resolution as altering the content of international law or establishing a precedent in other fora.

References to Human Rights “Violations” in Connection with Non-State Actors: The United States notes that generally only States have obligations under international human rights law and, therefore, the capacity to commit violations of human rights. References in HRC resolutions to human rights “obligations” in connection with non-State actors, or “violations” of human rights by such actors should not be understood to imply that such actors bear obligations under international human rights law. Nevertheless, the United States remains committed to promoting accountability for human rights abuses by non-state actors.

Business and Human Rights:  The United States strongly supports the multistakeholder approach to implementing the United Nations “Protect, Respect, and Remedy” Framework taken in the UN Guiding Principles on Business and Human Rights (UNGPs). Consistent with Resolution 26/22, the United States recognizes that national measures that require businesses to undertake human rights due diligence is one of many ways that states can help ensure that businesses meet their responsibility to respect human rights.

Sanctions: The United States does not accept that sanctions, in and of themselves, are tantamount to violations of human rights. Among other legitimate purposes, targeted sanctions can play an indispensable role in responding to human rights violations and abuses and threats to peace and security.

International Trade:  We underscore our position that trade language negotiated or adopted by the General Assembly or under its auspices, including by the Human Rights Council, has no relevance for U.S. trade policy, for our trade obligations or commitments, or for the agenda at the WTO, including discussions or negotiations in that forum. While the UN and WTO share common interests, they have different roles, rules, and memberships.

The United States greatly appreciates the close collaboration we enjoyed with numerous allies, partners, and likeminded countries during HRC 49. We look forward to continuing the effort to make lasting progress on promoting respect for human rights around the world; advancing these efforts intersessionally; and preparing for the 50th Session of the HRC.