Points of Clarification on Resolutions Adopted at the 53rd Human Rights Council
Statement of the United States of America
Providing clarifications with respect to resolutions adopted by HRC53
During this 53rd regular session of the UN Human Rights Council (HRC), the United States led a resolution on the right to a nationality and co-sponsored 17 additional resolutions, including resolutions on the incompatibility between democracy and racism, civil society space, child early and forced marriage, the right to education, accelerating efforts to eliminate all forms of violence against women and girls, human rights of migrants, and the negative impact of corruption, in addition to mandate renewals for the Business and Human Rights Working Group and Special Rapporteurs on disabilities, the independence of judges and lawyers, and trafficking in persons. We also co-sponsored resolutions on human rights in Belarus, Colombia, Eritrea, Syria, and Ukraine.
We take this opportunity to provide important points of clarification with respect to resolutions adopted by the Human Rights Council at its 53rd 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 non-binding 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. Sovereignty does not grant any State license to commit human rights violations within its own territory, and professed concerns about sovereignty cannot be used as a shield to prevent scrutiny by the Council. 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 acts that can amount to human rights violations or abuses, but believes it is important for resolutions to accurately characterize these terms, consistent with 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 do not 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 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. 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. 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”: We note that the “right to development” is not recognized in any of the core UN human rights conventions, does not have an agreed international meaning, and, unlike with human rights, is not recognized as a universal right held and enjoyed by individuals and which every individual may demand from his or her own government. Indeed, we continue to be concerned that the “right to development” identified within certain texts protects States instead of individuals.
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 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 safe drinking 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. We note that obligations on States relating to economic, social, and cultural rights, as recognized in the ICESCR, exist only for State Parties thereto, and that such references do not create obligations for States under other human rights treaties.
Gender Based Violence (GBV): We support references to GBV as the most accurate and inclusive terminology, rather than the binary and less inclusive “violence against women and girls (VAWG).” We note that VAWG is a form of GBV. We also support the use of GBV over the term “sexual and gender-based violence” (SGBV). The United States demonstrated our commitment to preventing and responding to all forms of GBV, including sexual violence, in the recently released U.S. Strategy to Prevent and Respond to Gender-Based Violence Globally. We also feel that it is important to address the gendered nature of sexual violence and the increased risk of experiencing it that women, girls, and gender-diverse individuals face, and that this is not accurately conveyed when separated from GBV in the term SGBV. We support references to preventing and responding to female genital mutilation and cutting and child, early, and forced marriage, and note that the United States views them as forms of GBV and human rights abuses. We support references to intimate partner violence as one of the most prevalent forms of GBV worldwide. It is important to recognize that violence often takes place within intimate relationships, families, and situations in which individuals in a relationship live together in close quarters.
Right to Education: The United States strongly supports the realization of the right to education. As educational matters in the United States are primarily determined at the state and local levels, we understand that when resolutions call on States to strengthen or otherwise address various aspects and areas of education, this is done in terms consistent with our respective federal, state, and local authorities. With respect to references to educational matters and private providers, we also understand them consistent with these respective authorities and underscore the importance of education as a public good, but note that private providers can offer students a viable educational option. We support encouraging all providers to deliver education consistent with its importance as a public good and take seriously the responsibility of States to uphold legal standards and monitor and regulate education providers, as appropriate.
Human Rights-Based Approach: There is no internationally agreed upon understanding of the term “human rights-based approach.” To the extent the term is referred to in resolutions, the United States reiterates that such references 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.
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 investigate or 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 investigate or 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. Further, we understand references to a right to an effective remedy as the right is recognized in Article 2 of the ICCPR, and reiterate that the right exists only as it relates to violations. We therefore do not understand such language as suggesting legal obligations exist regarding remedies related to actions by private, non-state actors or entities.
Freedom of Opinion and Expression: While the United States condemns racism and other hateful ideologies, we do not do so at the expense of our strong support for freedom of opinion and expression. To the extent that a resolution refers to efforts to prevent or eliminate hateful ideas or speech, such efforts must be carried out in a manner that fully respects freedom of opinion and expression and is consistent with the requirements in Article 19 of the ICCPR.
Privacy: Given differences in views as to the meaning and scope of privacy as an international 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.
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 that such terms are applicable to any specific act or situation. The United States does not understand references in these resolutions condemning certain actions during armed conflict to extend to actions taken lawfully under IHL.
Death Penalty: 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.
Fair Trial Guarantees: The United States strongly supports calls to ensure respect for fair trial guarantees and other applicable legal protections. This includes protections related to the right of convicted persons to have their conviction and/or sentence reviewed by a higher tribunal, according to the law. However, we reiterate our belief that it is critical to accurately describe such fair trial guarantees and that language in these resolutions should not be understood as modifying or altering those rights and guarantees as they are recognized in the ICCPR.
Torture: The United States interprets references to “torture” and “cruel, inhuman or degrading treatment or punishment” to be consistent with its understanding of international law—including as reflected in its reservations, declarations, and understandings to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment—as well as its domestic law.
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. 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. We further understand references to “pushbacks” and other actions intended to address irregular migration in a manner consistent with the United States’ understanding of international refugee law and international human rights law. Finally, we interpret references to States’ purported obligation to readmit their own nationals as consistent with customary international law, which requires that States readmit their own nationals when another State seeks to expel, remove, or deport them.
Human Trafficking: The United States strongly condemns all forms of human trafficking, which is an affront to human dignity and the rule of law. The United States supports efforts to prevent and combat human trafficking throughout the world, including providing assistance to victims and survivors. We interpret references to States’ obligations related to human trafficking in line with the Palermo Protocol to Prevent, Suppress, and Punish Human Trafficking, Especially Women and Children, to the UN Transnational Organized Crime Convention, to which the United States is party.
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. We also understand references to recruitment or use of children as referring to the recruitment or use of children in violation of international law, including, where applicable, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.
Child Labor: The United States notes that work performed by persons under the age of 18 is legal in the United States, with minimum age requirements and certain restrictions depending on the work the individual is engaging in, as well as in many other countries. The United States strongly supports the elimination of the worst forms of child labor, as that term is defined by Article 3 of the Worst Forms of Child Labour Convention, but notes that not all work done by persons under the age of 18 should be classified as child labor that is to be targeted for elimination.
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.
Environment and Human Rights: The United States believes environmental protection is a means of supporting the well-being and dignity of people around the world and the enjoyment of all human rights. That said, a right to a clean, healthy, and sustainable environment, including the content of any such right, has not been established in international law, and the adoption of non-binding resolutions in multilateral fora does not change that fact. Moreover, such a right is not justiciable in U.S. courts.
Business and Human Rights: The United States strongly supports the United Nations Guiding Principles on Business and Human Rights. Even though private actors have no obligations regarding human rights under international human rights law, the United States recognizes that businesses have a responsibility to respect human rights, irrespective of whether a business entity has made specific commitments to do so.
Treatment of Detainees: The United States does not consider the aspirational “Mendez Principles” to reflect internationally agreed upon policies, protocols, procedures, or standards in the treatment of detainees. They are not legally binding, and therefore States have no obligations to observe their provisions. For these reasons, the United States does not agree with any language in resolutions that suggests States must modify treatment of detainees to be consistent with these principles. With respect to the “Mandela Rules” or the “Bangkok Rules,” the United States understands that these are non-binding standards adopted by consensus by the Commission on Crime Prevention and Criminal Justice and are part of the United Nations Standards and Norms on Crime Prevention and Criminal Justice.
Technology Transfer: The United States reaffirms that strong protection of intellectual property and enforcement of intellectual property rights provide 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.
Sanctions: The United States does not accept that sanctions are tantamount to violations of human rights and firmly rejects the use of the term “unilateral coercive measures.” Economic sanctions are a legitimate, important, appropriate, and effective tool for responding to harmful activity and addressing threats to peace and security. The United States is not alone in that view or in that practice. In cases where the United States has applied sanctions, we have done so consistent with international law and with specific objectives in mind, including as a means to promote a return to rule of law or democratic systems, respect for human rights and fundamental freedoms, or to respond to threats to international peace and security.
The United States greatly appreciates the close collaboration we enjoyed with numerous allies, partners, and likeminded countries during HRC 53. 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 54th Session of the HRC in September.