Points of Clarification on Resolutions Adopted at the 50th Human Rights Council
Statement of the United States of America
Providing clarifications with respect to resolutions adopted by HRC50 that the United States co-sponsored or for which the United States joined consensus
During this 50th regular session of the UN Human Rights Council (HRC), the United States co-sponsored 14 resolutions, including the resolutions on Sexual Orientation and Gender Identity, Freedom of Peaceful Assembly and of Association, Freedom of Expression and Opinion, Peaceful Protest, Elimination of All Forms of Discrimination Against Women and Girls, Violence Against Women and Girls, Internally Displaced Persons, the Independence and Impartiality of the Judiciary, Afghanistan, Eritrea, Sudan, Syria, Belarus, and Libya. Many of these resolutions passed by consensus, which we joined, including: Independence and Impartiality of the Judiciary; Internally Displaced Persons; Casualty Recording; Violence Against Women and Girls; The Social Forum; Climate Change; Freedom of Opinion and Expression; The Regulation of Civilian Acquisition, Possession and Use of Firearms; Access to Medicines; Elimination of Female Genital Mutilation; Peaceful Protests; Freedom of Peaceful Assembly and of Association; Elimination of All Forms of Discrimination Against Women and Girls; Libya; Sudan; the situation of Rohingya Muslims from Burma; and the Situation of Human Rights of Women and Girls in Afghanistan. All other texts we co-sponsored were adopted by vote.
We take this opportunity to provide important points of clarification with respect to resolutions adopted by the Human Rights Council at its 50th 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 note that international human rights law generally does not obligate States to take such measures. Likewise, the United States strongly supports the condemnation of female genital mutilation and gender-based violence, torture, and other acts that can amount to human rights violations or abuses, but believes it is important for resolutions to accurately characterize these terms, consistent with our understanding of international law.
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.
Finally, the United States understands joint statements are intended to express the common belief of the States issuing the statement and not to create any legal rights or obligations under international law.
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 provided under the ICESCR, including by suggesting that specific steps are required of States Parties to achieve progressively the full realization of those right. 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 or to the right to food, we understand these rights 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.
Human Rights Based Approach: There is no internationally agreed upon understanding of the term “human rights-based approach.” To the extent the term is used in resolutions, the United States reiterates that such uses do not create obligations under international human rights law or other international commitments, including with respect to particular actions States may take in fulfilling their obligations.
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 legitimacy, to mean 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. We do not necessarily understand the characterization of certain acts or situations using international criminal law terms of art to mean that, as a matter of law, such terms are applicable to any specific act or situation.
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.
Death Penalty: As Article 6 of the International Covenant on Civil and Political Rights provides, States may only use the death penalty for the most serious crimes. We understand references in these resolutions to concerns about the use of the death penalty to be limited to contexts where the penalty is imposed on individuals solely for exercising their human rights and fundamental freedoms or where the imposition is otherwise in violation of obligations States owe under the ICCPR.
Rights of the Child: The United States does not understand references to the rights of the child or principles derived from the Convention on the Rights of the Child, including the principle that the best interests of the child should be a primary consideration in all actions concerning children, as implying that the United States has obligations in that regard.
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.
Sanctions: The United States does not accept that sanctions are tantamount to violations of human rights. Among other legitimate purposes, targeted sanctions can play a valuable role in discouraging human rights violations and abuses, promoting accountability, and addressing threats to international peace and security.
Technology Transfer: The United States firmly considers that strong protection and enforcement of intellectual property provides critical incentives needed to drive the innovation that will address the health, environmental, and development challenges of today and tomorrow. The United States understands that references to dissemination of technology and transfer of, or access to, technology are to voluntary technology transfer on mutually agreed terms, and that all references to access to information and/or knowledge are to information or knowledge that is made available with the authorization of the legitimate holder. The United States underscores the importance of regulatory and legal environments that support innovation.
Quotas/Temporary Special Measures for Women and Girls: With respect to quotas, affirmative action measures, temporary special measures, and other measures intended to achieve parity for women and girls, the U.S. position is that each country must determine for itself whether such measures are appropriate. We do not believe it is a useful exercise to urge the use of quotas and rigid numerical targets, particularly in the context of political representation and government employment, without consideration for domestic anti-discrimination legal frameworks and obligations under international law to ensure every citizen has an equal right and opportunities, without discrimination, to take part in the conduct of public affairs. The best way to improve the situation of women and girls is through legal and policy reforms that end discrimination and promote and provide equal access to opportunities.
The United States greatly appreciates the close collaboration we enjoyed with numerous allies, partners, and likeminded countries during HRC 50. 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 51st Session of the HRC.