Friday, October 1, 2010

10-10-01 Excerpts from United Nations reports on Human Rights in the US in preparation for the November 5, 2010 review session: 2. Stakeholders Reports

 

November 2010 Universal Periodic Review of Human Rights in the United States by the Human Rights Council of the United Nations:
2.     Excerpts from Report by 103 Stakeholders, prepared by staff of the Human Rights Council
Human Rights Council, Working Group on the Universal Periodic Review
Ninth session, Geneva, 1–12 November 2010
Summary prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 15 (c) of the annex to Human Rights Council resolution 5/1
United States of America
I. Background and framework
A. Scope of international obligations
1. Amnesty International (AI) recommended embarking upon a programme of ratification, and ensure implementation into domestic law, of human rights and other instruments, including CEDAW, CRC, ICESCR, OPCAT, the International Convention for the Protection of All Persons from Enforced Disappearance, the Rome Statute of the International court, the American Convention on Human Rights, and the Vienna Convention on the Law of Treaties.2 The Inter-American Commission of Human Rights (IACHR) informed that the United States (US) has not yet ratified any of the regional human rights instruments.
2. Four Freedoms Forum (FFF) recommended accepting the optional protocols and articles that allow for individual communications.
3. First Peoples Human Rights Coalition (FPHRC), US Human Rights Network (USHRN) and Episcopal Diocese of Maine (EDM) recommended endorsing the UN Declaration on the Rights of Indigenous Peoples without qualification and, in partnership with Indigenous peoples, fully implement it.5 USHRN called on the US to use the Declaration as a guide for interpretation of legally binding obligations vis-à-vis Indigenous Peoples.
4. USHRN and AI recommended withdrawing all reservations, understandings and declarations that serve to undermine compliance with the treaties or undermine their object  and purpose.
5. AI and International Commission of Jurists (ICJ) recommended recognizing and giving effect to the extra-territorial application of international human rights law to actions by US personnel vis-à-vis territories and individuals over which they exercise effective control, at all times,8 and; the dual applicability of human rights and international humanitarian law in case of armed conflicts.
6. Conservation Centre of Environmental & Reserves in Iraq (CCERF) and other organizations stressed the responsibility of the US as an occupying power to fulfill its obligations deriving from human rights and humanitarian law, and to be held accountable for violations.
7. Center for Economic and Social Rights (CESR) noted that in signing the ICESCR, CRC and CEDAW, the US has already indicated an intention to be bound by their provisions and not to violate their objective and purpose.
8. USHRN noted the failure of the US to signal intent to ratify the CRC and CEDAW. While commending the signature of the Convention on the Rights of Persons with Disabilities, USHRN noted that it lingers without ratification.
B. Constitutional and legislative framework
9. AI indicated that in the domestic arena, the US has many laws, mechanisms and institutions to protect human rights and provide remedy for violations of the US Constitution. However, laws and practices fall short of international human rights standards, as noted by the treaty monitoring bodies.13 USHRN indicated that while the Constitution incorporates ratified international treaties, treaties are non-self-executing.
The US issued a declaration that the federal government will only implement the treaties to the extent that it “exercises jurisdiction” over the treaty provision, raising federalism as a barrier to implementation.
10. Institute for Human Rights and Business (IHRB) recommended passing legislation for individuals to seek redress under US law for human rights abuses involving US registered companies at home and abroad.
11. Disability Rights Education and Defense Fund indicated that legal and structural  problems result in gaps in the enjoyment of their human rights by persons with disabilities.
C. Institutional and human rights infrastructure
12. USHRN noted that hampering the advancement of human rights in the US is the lack of an independent human rights commission to monitor compliance with human rights standards or an effective mechanism designed to ensure a coordinated approach towards the implementation of human rights at the federal, state and, local level.
13. FFF indicated that there must be a national human rights institution in accordance with the Paris Principles and that the commission on civil rights could facilitate the national dialogue following the UPR review.
14. AI recommended issuing an Executive Order to ensure that the administration’s Inter-Agency Working Group on Human Rights serves as a coordinating body among federal agencies and departments to enforce and implement the US human rights obligations; to make mandatory human rights impact assessments and studies to ensure government policies, pending legislation and regulations are consistent with US human rights obligations; to require that Inspectors General incorporate human rights obligations and analysis into their reviews and investigations of government agencies, policies and programmes; and to ensure collaboration between federal, state and local governments.
15. CESR recommended establishing an effective and inclusive process to follow-up on the recommendations from the universal periodic review.
D. Policy measures
16. USHRN recommended adopting a National Action Plan on Racial Discrimination, and a process by which policies and practices are reviewed for discriminatory impact.
17. USHRN recommended adopting a human rights centered macro-economic and financial policy in the US.
18. Accountability Counsel recommended improving the human rights corporate accountability mechanism.25 IHRB recommended the development of a Business and Human Rights Policy.
19. Center for Human Rights and Global Justice (CHRGJ) recommended adopting a human rights-based approach to international assistance.
20. Global Justice Center (GJC) raised concerns on the Helms Amendment to the Foreign Assistance Act on the prohibition from supporting abortion as a method of family planning using U.S. funds.
21. PIJIP-GAP reported on the US use of trade agreements and foreign aid to promote intellectual property and pharmaceutical regulations that restrict access to affordable medications in developing countries.
22. LA Asociación Nacional de Economistas y Contadores (ANEC) citó el incumplimiento del compromiso de los Estados Unidos de América (EUA) con la ayuda al desarrollo, el cual es sólo 0.16% de su Producto Interno Bruto.
23. La Asociación Cubana de las Naciones Unidas (ACNU) y ANEC se refirieron al impacto del bloqueo económico, financiero y comercial contra Cuba, el cual perjudica también al pueblo norteamericano.
II. Promotion and protection of human rights on the ground
A. Cooperation with human rights mechanisms
1. Cooperation with treaty bodies
24. Meiklejohn Civil Liberties Institute noted the failure to report to treaty bodies on local conditions.32 FFF recommended engaging civil society in the reporting process.
B. Implementation of international human rights obligations, taking into account applicable international humanitarian law
1. Equality and non-discrimination
25. USHRN noted the failure to address de facto and de jure discrimination34 and the definition of discrimination is not in accordance with the ICERD.
26. AI indicated that fully enjoyment of the treaty rights of those under US jurisdiction is affected by factors such as race, nationality, ethnicity, indigenous status, income and gender. US law falls short of international standards by generally protecting only against intentional discrimination, not policies or practices that have a discriminatory effect, as required under ICERD and other international human rights treaties.
27. Despite extensive anti-discrimination and civil rights legislation, there remain wide inequalities in areas such as housing, employment, education, healthcare and the criminal justice system. Racial disparities continue to exist at every stage of the criminal justice system.37 AI called on the US to address racial disparities in the criminal justice system and to pass legislation to bar racial profiling in law enforcement, with effective complaints and compliance procedures.
28. Joint Submission-11 (JS-11) indicated that Indigenous Peoples continue to be subjected to widespread discrimination.
29. Joint Submission-10 (JS-10) reported that discrimination on the basis of sexual orientation and/or gender identity prevents LGBT people from accessing health care, education, relationship recognition and other benefits.
2. Right to life, liberty and security of the person
30. USHRN referred to the discriminatory imposition of the death penalty; the lack of compliance with the International Court of Justice’s judgment in Avena and Other Mexican Nationals; the execution of persons with mental disabilities; and the inhumane and degrading conditions of death row facilities.41 ABA reported that some jurisdictions in the US continue to impose the death penalty in a manner that reflects racial disparities and fails to meet fundamental standards of competency of defense counsel and judicial review of constitutional claims following conviction. ABA indicated that post-conviction collateral review continues to be curtailed by the Antiterrorism and Effective Death Penalty Reform Act of 1996.42 AI indicated the US capital justice punishment is marked by arbitrariness, discrimination and error. AI noted that people with serious mental illness continue to be subjected to the death penalty, despite the 2002 US Supreme Court ruling that people with “mental retardation” be exempt from the death penalty. AI also referred to the harsh conditions on death rows in many states.43 USHRN recommended adopting a moratorium on executions and on the imposition of new death sentences.44 Advocates for Human Rights (AHR) recommended abolishing the death penalty and commuting all sentences to a life imprisonment term.
31. Catholic Family & Human Rights Institute (C-FAM), referred to a Supreme Court decision, ruling that the mother’s right to privacy was superior to any right to life of the unborn child.
32. AI indicated that there are frequent reports of ill-treatment and excessive force by police or custody officials. Officials are rarely prosecuted for abuses and some law enforcement agencies, as well as many prisons and jails, lack effective, independent oversight bodies.
33. American Bar Association (ABA) noted that current US prohibitions of torture lack sufficient status in law, are unclear, and their implementation lacks transparency. In ratifying CAT and the ICCPR, the US attached reservations stating that it “considers itself bound by the obligation … to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as [that] term … means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments” to the US Constitution. In the past these reservations were sometimes interpreted broadly to permit such harsh interrogation techniques as “water boarding,” considered by most experts to be a form of torture. In an effort to correct such abuses, the President has issued an Executive Order banning all torture, and mandating that all interrogations of persons in US custody or physical control be carried out only by techniques specified in the Army Field Manual. ABA indicated that it is unclear as to whether or not this policy restricts torture or CID outside the context of armed conflict.
34. AI indicated that there are no binging national guidelines governing use of restraints or “less lethal” weapons such as electroshock weapons.49 More than 12,000 US law enforcement agencies deploy electroshock weapons. Over 400 people have died in the USA since 2001 after being struck by police electroshock weapons, raising serious concern about the safety of such devices. Coroners have found the electroshock weapons played a role in more than 50 deaths, and there are other cases where the cause of death was unclear. electroshock weapons are widely used against individuals who do not pose a serious threat, including children, the elderly and people under the influence of drink or drugs.
35. AI noted that more than 30 states and the federal government have introduced “supermaximum security” facilities for the control of prisoners who are considered disruptive or a security threat. Prisoners in the most restrictive units are typically confined for 23 to 24 hours a day in small, sometimes windowless, solitary cells, with no work or rehabilitation programs, or daily exercise. Although courts have ordered improvements to some supermaximum prisons, conditions remain extremely harsh in many states and often the review procedures for assignment to such facilities are inadequate.
36. AI also noted that most US states have no laws to restrict the use of restraints on pregnant women inmates, including during labour, a practice which can endanger the health of the woman and her baby. AI indicated that the US has not implemented the Human Rights Committee recommendation in July 2006 to prohibit the shackling of detained women during childbirth.52
37. Human Rights First (HRF) reported that people of African descent, LGBT, migrants, Jews, Muslims and Christians continue to be subjected to violent acts motivated by racism,  bigotry and intolerance.53 Council for Global Equality (CGE) noted that State and local jurisdictions must pass laws to protect victims, as well as report hate crimes to federal authorities.
38. National Organization for Women referred to gun related violence and noted the inadequate gun control and firearms regulations.
39. Human Rights Watch (HRW) recommended ensuring access protective and rehabilitative services by victims of domestic violence.56 AHR recommended passing laws and developing guidelines for child custody determinations taking domestic violence concerns into account.
40. EPOCH reported that parents are legally permitted to use physical punishment on children in all states, and that 223,190 children were subjected to corporal punishment in schools in 2006-2007, with many requiring medical treatment. Thirty states have banned corporal punishment in schools.
41. Joint Submission-3 (JS-3) recommended revising the Trafficking Victims Protection Act to bring the definition of human trafficking in line with the Palermo Protocol.59 JS 3 recommended increasing efforts to prosecute those responsible for trafficking and to assist victims, particularly victims of sexual exploitation.60 JS5 recommended to provide comprehensive services and legal support for migrant sex workers.
42. JDI recommended adopting national standards for addressing sexual violence and other abuses in prisons, jails and other detention facilities.
43. HRW referred to the treatment of child farmworkers and recommended passing the Children’s Act for Responsible Employment.
44. JS-14 indicated that there is no integrated system for the protection of human rights defenders64 and recommended establishing an independent federal office to prevent, investigate and prosecute violations against human rights defenders.
3. Administration of justice, including impunity, and the rule of law
45. USHRN indicated that the US falls short of its human rights obligations in the administration of justice, particularly relating racially sentencing and sentencing of juveniles to life without parole66, conditions of confinement violating women’s reproductive rights, and rights of prisoners with disabilities; treatment of individuals in high security facilities and of political prisoners.67 Dui Hua Foundation (Dui Hua) recommended that US states with indeterminate parole systems establish independent parole boards with judiciary oversight.68 HRAlert referred to corruption in the courts and the legal profession, and discrimination of US law enforcement in California.
46. USHRN made reference to prisoners who endure solitary confinement, poor medical health care and perfunctory parole hearings resulting in denial of release.
47. Earth Rights International recommended ensuring that the interpretation of US law is consistent with the obligation to provide a remedy to victims of human rights abuses, and to hold those responsible for abuses accountable.71 National Whistleblowers Center noted that the US has failed to protect whistleblowers.
48. International Human Rights Law Society (IHRLS) noted that there is no uniform minimum age for criminal prosecution in state criminal codes and the sentence is set by each states’ own laws.73 Two states prohibit sentencing juveniles to life without the possibility of parole (JLWOP) and five permit such sentences but make offenders eligible for parole. The remaining 43 states have some form of mandatory or discretionary JLWOP.74 AI recommended to end the use of life imprisonment without parole for offenders under 18 years old at the time of the crime, and to review all existing sentences in order to ensure that any such convicted offender has the possibility of parole.
49. ACNU, MOVPAZ y FMC hicieron referencia al caso de 5 cubanos presos en cárceles norteamericanas76, a las medidas carcelarias a las que son sometidos y la negative de visado para ingresar al país a las esposas de dos de ellos para visitarlos.
50. RCF voiced concern over the failure to initiate independent investigations into violations of the rights of US citizens abroad.
4. Right to privacy
51. PEN recommended restoring full privacy protections; end dragnet and warrantless surveillance.
52. JS-10 noted that in state and federal law, the terms “family,” “parent,” and “spouse” commonly exclude LGBT families.80 JS-10 recommended prohibiting discrimination against LGBT parents in adoption.
5. Freedom of expression
53. JS-11 reported that the US courts provide little protection to Indigenous People’s traditional religious practices.
54. Conscience and Peace Tax International reported on compulsory registration for military services, recruitment of persons under 18, difficulties encountered by serving members who develop a conscientious objection and the use of taxes of persons with a conscientious objection for military expenditures.
55. USHRN noted that US security laws and policies create unnecessary and unreasonable barriers to the activities of civil society organizations.
6. Right to work and to just and favourable conditions of work
56. USHRN noted that the National Labor Relations Act intended to encourage collective bargaining, however its provisions only apply to the private sector, offer inadequate protection for workers and are poorly enforced.86 USHRN noted that there are five states that completely prohibit collective bargaining in the public sector.87 CESR referred to disparities in wage levels among ethnic groups and between men and women.
57. USHRN indicated that the Pregnancy Discrimination and the Family and Medical Leave Acts offer incomplete protection for pregnant women in the workplace. Furthermore, the US is the only industrialized country with no mandated maternity leave policy.
58. USHRN indicated that domestic and agricultural workers, and independent contractors, are exempt from the full protection of labour laws, in particular regarding minimum wages, the payment of overtime and safe and healthy work environment.
7. Right to social security and to an adequate standard of living
59. USHRN noted that around 30% of the population lacks an adequate income to meet basic needs, with 24.7% of African Americans and 14.5% of women living below the federal poverty level.91 CESR noted that one in five children live in poverty.92 JS-11 indicated that most Indigenous communities suffer grave economic and social deprivation.
AI indicated that there is an unequal access in the US to basic amenities such as adequate food, shelter, work, healthcare, and education. There is also a lack of affordable housing, job shortages and income insecurity, particularly among minorities and women.
60. USHRN reported that 101,000 people are estimated to die each year because of the way the health system is organized, and 45,000 deaths per year are attributed to the lack of health insurance.95 CESR referred to maternal mortality rates, highlighting ethnic disparities.96 Unfortunately, the health reform law of 2010 continues to rely on the marketbased system.97 AI indicated that although legislation has recently been passed that will extend healthcare, millions will remain without coverage. AI noted that healthcare, along with housing and employment, is still not recognized in the US as a universal right.
61. USHRN99 and National Advocates for Pregnant Women reported on laws and policies that create barriers to abortion and other reproductive health care.100 AI indicated that hundreds of women die each year from preventable pregnancy-related complications, with wide disparities in access to health care based on race, ethnicity, immigration or indigenous status and income.101 AI called on the US to ensure that all women have access to maternal health care services.
62. JS-10 recommended to prioritize/adequately fund HIV prevention efforts.
63. EMF Sensitivity.org reported on the widespread use of electromagnetic fields and their harmful effects on health.
64. Centre on Housing Rights and Evictions indicated that the lack of adequate housing is exacerbated by an increase in evictions, particularly in the context of the financial crisis and the privatization of public housing.
65. JS-3 referred to the effect of genetic engineering technology on the right to food and recommended to use a sustainable rights-based approach to agriculture,106 making sure that food requiring the labelling of genetically engineered food, is nutritionally adequate and free from any adverse substance.
66. Joint Submission-13 referred to the obligation of the US to reduce national greenhouse gas emissions and to cooperate with the international community to mitigate threats to human rights due to climate change.
8. Right to education
67. USHRN indicated that the education system is highly segregated.109 Lack of adequate funding and zero-tolerance discipline policies push young people out of school. USHRN called on the US to implement the recommendations of CERD regarding school segregation and discrimination in educational opportunities.111 CESR referred to gaps in educational achievements among ethnic groups.
68. FFF encouraged the creation of a national human rights education curriculum.113
9. Minorities and indigenous peoples
69. Nation of Hawai’i recommended securing the rights of all indigenous peoples under ICCPR.114 FPHRC noted that, as a Member of the Human Rights Council, the US should set a positive example in upholding Indigenous people’s human rights.
70. According to the Navajo Nation, and the Navajo Nation Human Rights Commission (NNHRC) the US continues to deprive indigenous peoples of their right to equal protection under law.
71. International Indian Treaty Council (IITC) recommended questioning the US about: the failure to comply with the CERD and the IACHR decision regarding the Western Shoshone; the destruction, desecration of, and denial of access to Indigenous Sacred Areas; the failure to consult with Indigenous Peoples and to acquire their free, prior and informed consent regarding matters that directly affect their interests; the unilateral termination of Treaties with Indigenous Peoples; and the failure to implement a process to address violations of these Treaties.
72. Southeast Indigenous Peoples’ Center (SIPC) noted that though the Constitution says that it will deal with ’Indian Tribes’ as nations, the US does not negotiate with indigenous peoples.
73. The Society for Threatened Peoples (STP) noted that the Havasupai and Hualapai tribes have struggled for decades for the protection of their land from mining and expressed concern at the risk of radioactive pollution.
74. American Indians Rights and Resources Organization made reference to the impact of the disenrollment and banishment of Indians from their tribes.
75. Akiak Native Community indicated that the indigenous people are still devastated by the culture and traditions forcibly induced to the indigenous people.
10. Migrants, refugees and asylum-seekers
76. USHRN called on the US to reform its immigration system, to ensure due process and to protect family unity.121 HRW referred to the detention of large number of noncitizens.
122 Lutheran Immigration and Refugee Service (LIRS), reported on conditions of immigration detention, where freedom of movement is restricted; detainees wear prison uniforms and are kept in a punitive setting.
77. Dui Hua called for increased monitoring and accountability in Immigration and Customs Enforcement and noted that detainees should have access to legal representation.124 Edmund Rice International raised concerns on the lack of access to medical benefits and family visas for workers under the Guestworker Programmes.
78. Seton Hall University reported on restrictive immigrant eligibility for publicly supported health care, which has resulted in hospitals deporting immigrant patients without due process.126 Atlanta Public Sector Alliance reported on racial disparities in access to health care services with respect to undocumented immigrants in Georgia.
79. Joint Submission-15 recommended restoring judicial discretion in cases involving the deportation of lawful permanent residents who have US citizen children.
80. USHRN recommended reforming the US refugee and asylum system, to ensure that it meets obligations under the 1951 Convention, and in particular, elimination of the oneyear filing deadline for asylum claims, and of the Tier 3 “terrorism” category; reform the immigrant detention system to end arbitrary detention and ensure that those who are detained are afforded humane treatment
81. RI recommended identifying the scope of statelessness on US territories and to refrain from detention of persons who pose no risk to the community.130 RI recommended that the US become a party to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.
11. Internally displaced persons
82. AI indicated that nearly five years after Hurricane Katrina, there is a continued lack of access to housing and health care in the region, as well as resource problems within parts of the criminal justice system, preventing many displaced persons from returning home and compromising the rights of those who have returned. Not enough has been done at the federal, state or local level to replace affordable rental units and demolished public housing, as well as schools and hospitals, failings which have disproportionately impacted on the poor and communities of colour. AI called on the US to abide by the UN Guiding Principles on Internal Displacement and recognize that all internally displaced persons have the right to return to their homes or places of origin; and to ensure that the principles of equality and non-discrimination are applied to resettlement and return.132
83. Diné Homeowners & Communities Association recommended prohibiting forced relocation of indigenous people in the Americas.
12. Human rights and counter-terrorism
84. CHRGJ indicated that since September 11, 2001, the US has institutionalized discriminatory profiling against members of Muslim, Arab, South Asian, and Middle-Eastern communities.134 CHRGJ called for inter alia federal legislation that prohibits profiling on all grounds, with no exceptions for national security and an in-depth audit of government databases/watchlists.135
85. While welcoming developments since 2009, the International Commission of Jurists (ICJ) referred to the persistent impunity and lack of accountability for serious human rights violations and crimes under international law.136 International Centre for Transitional Justice (ICTJ) noted that accountability measures should include full disclosure, analysis of the facts pertaining to the nature and extent of counterterrorism detainee abuses; meaningful access to redress for victims and institutional reforms ensuring restoration of due process.
86. HRF, as well as ICJ and other organizations, expressed concern about detainees in military facilities at Guantanamo Bay138 and in Afghanistan without charge or trial and in US facilities in Iraq.139 ICJ recommended closing the facility at Guantanamo Bay; try those that may be charged with a recognizable offence under international law in accordance with international standard of fair trial; end the system of administrative detention without charge or trial; provide independent and impartial judicial review to challenge detention in Afghanistan and Iraq; allow for the right to legal representation and; review all definitions of ‘unprivileged enemy belligerent’ to bring them into full compliance with the requirements of international humanitarian law.
87. HRF also reported on the failure to provide adequate information about detainees reportedly in a “black site” in Afghanistan.141 The Organization for Defending Victims of Violence expressed concern that the ICRC does not have access to secret detention facilities.
88. ICJ referred to US counter-terrorism laws, policies and practices since the new administration took office in 2009.143 ICJ indicated that the Executive Order on Ensuring Lawful Interrogations recommitted the US to respecting the absolute prohibition on torture as regards all persons within US custody. In the Executive Order the CIA was mandated that no individual detained by the US in an armed conflict may be subjected to any interrogation technique not listed in the Army Field Manual. ICJ noted that although the Manual prohibits a range of abusive interrogation methods, it permits several physically and psychologically coercive techniques. These techniques – especially when used in combination –violate the prohibition of torture and cruel, inhuman and degrading treatment. ICJ also remained concerned about narrow definitions of torture and cruel or inhuman treatment under US law and referred to provisions in the Torture Act and the War Crimes Act.145 ICJ recommended revising the Army Field Manual; to bring the definitions of torture and cruel or inhuman treatment in all legislative acts in compliance with the CAT requirements, and to withdraw relevant reservations to CAT.146 Joint Submission-7 (JS-7) reported on the failure to supervise military prisons and recommended giving access to the ICRC and the UN.147 Physicians for Human Rights (PHR) indicated that during the period 2002 through 2008 the Bush Administration authorized so-called “enhanced” interrogation techniques, resulting in physical and psychological torture of detainees in US military and CIA custody. PHP indicated the US has a responsibility to prosecute alleged perpetrators, as well as to ensure that victims receive reparations and assistance.
89. ICJ urged the Human Rights Council to request to the US information on: transfers/renditions that may still be practiced, and to call for the full respect of the principle of non-refoulement.
90. ICJ recommended repealing the system of military commissions; granting exclusive jurisdiction to civilian courts, prohibiting the extentions of military jurisdiction to civilians and ensuring that the right to be tried in full compliance with ICCPR article 14 is respected.150 ABA referred to doubts whether persons allegedly responsible for the terrorist attacks on the US on 11 September may now be tried before military commissions.
91. CHRGJ recommended incorporating gender considerations into counter-terrorism programs and policies.
92. Joint Submission-2 recommended that the US re-assess its national security and counter-terrorism laws as applied to civil society organizations.


10-10-01Excerpts from United Nations reports on Human Rights in the US in preparation for the November 5, 2010 review session: 1. HRC Staff Report

 


November 2010 Universal Periodic Review of Human Rights in the United States by the Human Rights Council of the United Nations:
1.          Excerpts from Report by staff of the Human Rights Council
Human Rights Council, Working Group on the Universal Periodic Review
Ninth session, Geneva, 1–12 November 2010
Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with
paragraph 15 (b) of the annex to Human Rights Council resolution 5/1
United States of America
I. Background and framework
A. Scope of international obligations
Universal human rights treaties
Recognition of specific competences of treaty bodies
ICERD 
Individual complaints (art. 14): No
CAT  
Individual complaints (art. 22): No
Rome Statute of the International Criminal Court
No (signature only)
Refugees and stateless persons 
No, except 1967 Protocol
ILO fundamental conventions
No, except C.105 and C.182
UNESCO Convention against Discrimination in Education
No

1. In 2008, the Committee on the Rights of the Child (CRC) recommended that the United States of America proceed to become party to the Convention on the Rights of the Child.14 The Working Group of experts on people of African descent noted that the United States has not ratified the Convention or the ILO Convention No. 111 concerning Discrimination in Respect of Employment and Occupation.
2. In 2008, the Special Rapporteur on the human rights of migrants recommended that the United States consider ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
3. CRC recommended that the State consider ratifying Additional Protocols I and II to the Geneva Conventions of 12 August 1949.17
4. The Committee against Torture (CAT) invited the State to reconsider its intention not to become party to the Rome Statute of the International Criminal Court.18 CRC made a similar recommendation.
5. In 2006, CAT recommended that the State ensure that the Convention applies at all times, whether in peace, war or armed conflict20 and that the provisions of the Convention expressed as applicable to “territory under the State party’s jurisdiction” apply to all persons under the effective control of its authorities.
6. In 2006, the Human Rights Committee (HR Committee) encouraged the State to withdraw its reservation to article 6, paragraph 5, of ICCPR, which forbids imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. Other committees recommended that reservations and understandings to relevant human rights treaties be withdrawn.
B. Constitutional and legislative framework
7. The Working Group of experts on people of African descent noted that the abolition of slavery is not absolute. The Thirteenth amendment allows slavery “as a punishment for crime whereof the party shall have been duly convicted... within the United States, or any place subject to their jurisdiction”.
8. The Committee on the Elimination of Racial Discrimination (CERD) recommended that the State review the definition of racial discrimination used in the federal and state legislation and in court practice, so as to ensure it is consistent with that of the Convention.
9. CRC recommended that the State define and prohibit child prostitution both at federal and state levels.
10. CRC encouraged the State to raise the minimum age for recruitment into the armed forces to 18 years, and recommended that the State ensure that violations of OP-CRC-AC regarding the recruitment and involvement of children in hostilities be explicitly criminalized in its legislation; and that it consider establishing extraterritorial jurisdiction for these crimes.
C. Institutional and human rights infrastructure
11. As of 12 July 2010, the United States does not have a national human rights institution accredited by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights. CERD recommended that the State consider the establishment of a national human rights institution in accordance with the Paris Principles. CRC31 and the Working Group of experts on people of African descent made similar recommendations.
12. CERD recommended that the State ensure a coordinated approach towards the implementation of the Convention at the federal, state and local levels.33 CAT noted that the State had a federal structure, but recalled that it had the obligation to implement the Convention against Torture in full at the domestic level.34 Likewise, CRC recommended strengthening coordination in the areas covered by OP-CRC-SC, both at federal and state levels.
D. Policy measures
13. CAT recommended that training on all provisions of the Convention be conducted on a regular basis, in particular for personnel involved in the interrogation of suspects.
14. UN-Habitat stated that the Helping Families Save Their Homes Act of 2009 aims to prevent mortgage foreclosures and enhance mortgage credit availability and contains provisions protecting tenants living in foreclosed buildings. Complaints on illegal discrimination on housing rights may be filed through a process administered by the Department of Housing and Urban Development.
II. Promotion and protection of human rights on the ground
A. Cooperation with human rights mechanisms
1. Cooperation with treaty bodies
15. CAT noted with satisfaction the contributions of the United States to the United Nations Voluntary Fund for the Victims of Torture.
2. Cooperation with special procedures.
16. CAT encouraged the State to invite the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to visit Guantanamo and any other detention facility under its de facto control. In June 2004, the Chairperson-Rapporteur of  the Working Group on Arbitrary Detention, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on the question of torture, the Special Rapporteur on freedom of religion or belief, and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (hereinafter referred to as the five mandate holders) requested the United States to allow them to visit Guantanamo, but in the absence of assurances from the Government that it would comply with the terms of reference, the five mandate holders decided to cancel the visit in November 2005.

B. Implementation of international human rights obligations, taking into account applicable international humanitarian law
1. Equality and non-discrimination
18.  The HR Committee observed that the State should take all steps necessary to ensure the equality of women before the law and effective protection against discrimination on the ground of sex, particularly in employment.
19. CERD remained concerned about the persistent racial disparities regarding the imposition of the death penalty.  The Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance recommended mandatory minimum sentences be reviewed to assess disproportionate impact on racial and ethnic minorities.  The Working Group of experts on people of African descent was concerned by the ongoing structural discrimination that cannot be effectively addressed with the existing legal mechanisms and legislation.
20. The same Special Rapporteur said the Government should establish a bipartisan Commission to evaluate the progress and failures in the fight against racism and the ongoing process of re-segregation, particularly in housing and education, with broad participation from civil society.49 CERD reiterated that the adoption of special measures “when circumstances so warrant” is an obligation arising from article 2, paragraph 2, of the Convention.
21. The Working Group of experts on people of African descent found that the challenges faced by people of African descent related, inter alia, mainly to disproportionately high levels of unemployment, lower income levels, access to education and to quality health-care services. The Working Group recommended, inter alia, the adoption of an anti-discrimination act.
22. CERD recommended that the State guarantee the right of everyone to equal treatment before tribunals and all other organs administering justice.52 It urged the State to put an end to the National Entry and Exit Registration System for nationals of 25 countries, all located in the Middle East, South Asia or North Africa, and to eliminate other forms of racial profiling against Arabs, Muslims and South Asians.53 In its follow-up report to CERD, the United States provided information on measures to combat racial profiling.
23. The Special Rapporteur recommended that the Government clarify to law enforcement officials the obligation of equal treatment and, in particular, the prohibition of racial profiling,55 and recommended that adequate consultation mechanisms be put in place for a coordinated approach at the federal, state and local levels of government.
24. CRC recommended that the State ensure that recruitment in the armed forces does not occur in a manner which specifically targets minorities and children of low-income families, and that any reported irregularity or misconduct by recruiters be investigated.
2. Right to life, liberty and security of the person
25. CERD recommended that the State adopt all necessary measures, including a moratorium, to ensure that the death penalty is not imposed as a result of racial bias. The HR Committee, while welcoming the 2002 Supreme Court decision that executions of mentally retarded criminals are cruel and unusual punishments, made a similar recommendation, adding that the United States should review federal and state legislation ith a view to restricting the number of offences carrying the death penalty. CAT recommended that the State should carefully review its execution methods, in particular lethal injection, in order to prevent severe pain and suffering. The United States voted against the draft resolution on a moratorium on the use of the death penalty in 2007.
26. OHCHR expressed concerns, in August 2008, about the decision of the authorities in Texas to proceed with the execution of a national of a third country, despite an order to the contrary by the International Court of Justice. OHCHR recalled that the United States has an international legal obligation to comply with decisions of the International Court of Justice.
27. The Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism sent, in March 2006, a joint allegation letter regarding incidents of air strikes by United States unmanned aircrafts that had resulted in the death of 31 civilians near the Afghan border.65 The former also sent an allegation letter regarding a raid conducted by the multinational force in Iraq, in which American troops allegedly executed 10 civilians, including 6 children.
28. The Special Rapporteur on extrajudicial, summary or arbitrary executions stated that for too long, there has been de facto impunity for killings by private contractors and civilian intelligence agents operating in Iraq, Afghanistan and elsewhere,67 and recommended that the Government explicate the rules of international law it considers to cover targeted killings.68 The Secretary-General stated that there were continued reports implicating private security companies in the killing of civilians or bystanders. Such incidents attracted wide media attention and official complaints by Iraqi authorities. He also stated that the result was a tightening of control over those companies by the United States and the extension of court-martial proceedings to some contractors for serious offences.
29. On 25 September 2007, the Working Group on mercenaries sent an allegation letter to the Government on the events of 16 September 2007 in Nisoor Square in Baghdad, in which employees of a private security company opened fire, killing 17 and injuring more than 20 civilians.70 The United States replied to the Working Group’s letter.
30. CERD remained concerned about allegations of brutality and use of excessive or deadly force by law enforcement officials against, inter alia, Latino and African American persons and undocumented migrants. It recommended increasing the State’s efforts to eliminate police brutality and to ensure that incidents of excessive use of force are investigated and that perpetrators are prosecuted.72 In 2006, the HR Committee73 and CAT74 expressed similar concerns. The Special Rapporteur on extrajudicial, summary or arbitrary executions recommended that all deaths in immigration detention should be promptly and publicly reported and investigated.
31. CAT noted with concern that the State did not always register persons detained in territories under its jurisdiction, depriving them of an effective safeguard against acts of torture.76 The United States provided the Committee with a follow-up reply.77 CAT recommended that the State adopt all necessary measures to prohibit and prevent enforced disappearance in any territory under the United States’ jurisdiction, and prosecute perpetrators.
32. CAT recommended that the State enact a federal crime of torture consistent with the Convention, and investigate, prosecute and punish perpetrators under the federal extraterritorial criminal torture statute.79 The Committee also recommended that the State adopt clear legal provisions to implement the principle of absolute prohibition of torture without any possible derogation.
33. In 2006, the HR Committee81 and CAT82 expressed concerns over the use of enhanced interrogation techniques. The HR Committee was concerned, inter alia, that the State refused to acknowledge that such techniques violate the prohibition of torture.83 CAT called upon the State to rescind any interrogation technique that constitutes torture or punishment, in all places of detention under its de facto effective control.84 The five mandate holders made a similar recommendation.85 The United States provided CAT86 and the HR Committee87 with a follow-up reply. The United States also sent a letter to OHCHR concerning the report of the five mandate holders.
34. CAT was concerned about acts of torture or ill-treatment committed by certain members of the State’s military or civilian personnel in Afghanistan and Iraq, and recommended that the State take immediate measures to eradicate all forms of torture and ill-treatment of detainees by military or civilian personnel, in any territory under its jurisdiction, and thoroughly investigate such acts.89 The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism urged the United States to ensure that all its officials and agencies comply with international standards, including article 7 of ICCPR, the Convention against Torture and, in the context of an armed conflict, common article 3 of the Geneva Conventions.
35. In March 2010, the United Nations High Commissioner for Human Rights indicated that the United States should conduct thorough investigations into allegations of torture and the detention in Guantanamo and Bagram.
36. CAT was concerned by allegations that the State had established secret detention facilities, and that those detained in such facilities could be held for prolonged periods and face torture. The HR Committee raised similar concerns. CAT recommended investigating and disclosing the existence of any such facilities and the authority under which they had been established. The HR Committee recommended that the State immediately cease this practice, grant the International Committee of the Red Cross access to detainees, and ensure that, regardless of their place of detention, they benefit from the full protection of the law. The United States replied to the HR Committee.96 The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism made similar recommendations.
37. CAT was concerned that the State considered that the non-refoulement obligation did not extend to a person detained outside its territory, and also by the State’s rendition of suspects to States where they face a real risk of torture. It recommended, inter alia, that suspects have the possibility to challenge decisions of refoulement.98 The HR Committee and CERD100 raised similar concerns. The United States provided CAT101 and the HR Committee102 with responses.
38. The HR Committee recommended that the State scrutinize conditions of detention in prisons, in particular in maximum security prisons, with a view to guaranteeing that persons deprived of their liberty be treated in accordance with article 10 of the Covenant and the United Nations Standard Minimum Rules for the Treatment of Prisoners. CAT recommended that the State should implement appropriate measures to prevent all sexual violence in all its detention centres.
39. The Working Group on Arbitrary Detention issued the following opinion: the deprivation of liberty of Mr. Antonio Herreros Rodríguez, Mr. Fernando González Llort, Mr. Gerardo Hernández Nordelo, Mr. Ramón Labaniño Salazar and Mr. René González Schweret is arbitrary, being in contravention of article 14 of the International Covenant on Civil and Political Rights.105 The Working Group requested the Government to adopt the necessary steps to remedy this situation.106
40. CERD remained concerned about the incidence of rape and sexual violence experienced by women belonging to minority groups, particularly regarding American Indian and Alaska Native women and female migrant workers, especially domestic workers, and recommended that the State increase its efforts to prevent and punish violence against them.
41. The HR Committee noted with concern allegations of violent crimes perpetrated  against persons of minority sexual orientation, including by law enforcement officials.
42. CRC was concerned at the number of children in United States-administered detention facilities in Iraq and Afghanistan, detained over extended periods of time and who may have been subject to cruel, inhuman or degrading treatment, without access to legal advisory services or recovery measures.109 CRC recommended, inter alia, that the State ensure that children be detained only as a measure of last resort and that a periodic review of their detention be guaranteed.
43. CRC was concerned, inter alia, that efforts to prevent child abuse and neglect did not cover sufficiently large groups of vulnerable children111 and recommended adopting measures to prevent exploitation of children, and assisting victims.
44. In 2010, the ILO Committee of Experts urged the United States to take immediate and effective measures to comply with article 1 of the Worst Forms of Child Labour Convention (No. 182), read with article 3 (d), to prohibit children under 18 years of age from engaging in dangerous work in agriculture.
3. Administration of justice, including impunity, and the rule of law
45.  On 22 January 2009, the High Commissioner for Human Rights welcomed the decision by the United States Administration to close the detention facility in Guantanamo, as well as the decision to ban methods of interrogation that contravene international law. She also called for a review of the United States’ approach to detaining individuals abroad, in third countries, as well as the practice of “rendition”.
46. On 12 June 2008, the High Commissioner for Human Rights welcomed the decision by the United States Supreme Court in Boumediene v. Bush that foreign detainees held in Guantanamo have the right to challenge their detention by habeas corpus in the civilian courts. She expressed the hope that the civilian courts will be able to move promptly to assess the situation of individual detainees.
47. CAT recommended that the State cease to detain any person at Guantanamo and close this detention facility, and permit access by the detainees to judicial process or release them as soon as possible.116 The five mandate holders made similar recommendations. In July 2010, the Special Rapporteur on the question of torture and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism called on the Government to ensure that it does not forcibly transfer anyone to another State where a person could be subject to torture.118 The United States provided CAT with a follow-up reply,119 and sent a letter to OHCHR concerning the report of the five mandate holders.
48. The HR Committee recommended that the State conduct prompt and independent investigations into allegations concerning suspicious deaths in custody and torture and ill- treatment inflicted by United States military and non-military personnel or contract employees, in detention facilities in Guantanamo, Afghanistan, Iraq and other overseas locations, and recommended ensuring that those responsible be prosecuted and punished.
The Special Rapporteur on extrajudicial, summary or arbitrary executions made similar recommendations.  The United States provided the HR Committee with a follow-up reply.
49. Regarding the 2005 Detainee Treatment Act, CAT recommended that independent procedures of review be available to all detainees.124 It also recommended ensuring that mechanisms to obtain full redress, compensation and rehabilitation are accessible to all victims of acts of torture or abuse.125 The five mandate holders stated that the United States should ensure that all victims of torture are provided with fair and adequate compensation, in accordance with article 14 of the Convention against Torture, including the means for a full rehabilitation.126 The United States sent a letter to OHCHR concerning the report of the five mandate holders.
50. The Special Rapporteur on extrajudicial, summary or arbitrary executions stated that the United States has an obligation under international law to provide detainees with fair trials, regardless of whether persons are to be tried for crimes allegedly committed during peace or armed conflict.
51. Regarding persons detained in Guantanamo, the HR Committee was concerned that proceedings before Combatant Status Review Tribunals and Administrative Review Boards may not offer adequate safeguards of due process. The Committee was further concerned that detention in other locations, such as Afghanistan and Iraq, is reviewed by mechanisms providing even fewer guarantees.129 CAT expressed similar concerns.
52. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism recommended that the categorization of persons as “unlawful enemy combatants” be abandoned. He called upon the United States to release or to put on trial those persons detained under that categorization.131 CERD made a similar recommendation.
53. The ILO Committee of Experts asked the Government to supply information on any measures to ensure that there is no discrimination in the imposition of prison sentences involving an obligation to perform labour.133 The Working Group of experts on people of African descent was concerned with aspects of the administration of justice that adversely affect the African American population, particularly the disproportionate incarceration rates compared to the general population.
4. Right to privacy
54. The HR Committee was concerned that the State had monitored and still monitors private communications of individuals both within and outside the country, without any judicial or other independent oversight. The Committee recommended ensuring that any infringement on an individual’s rights to privacy is strictly necessary and duly authorized by law, and that the rights of individuals in this regard are respected.
5. Freedom of expression
55. On 25 September 2006, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression sent an urgent appeal concerning the imprisonment of a freelance journalist for refusing to provide to a Grand Jury his unedited video footage of a protest in San Francisco. The Government replied to that communication.
56. On 24 August 2007, the same Special Rapporteur, jointly with the Special Rapporteurs on health and on the question of torture, sent an urgent appeal concerning a cameraman who had been detained in Guantanamo since June 2002.137 The Government replied to that communication.
6. Right to work and to just and favourable conditions of work
57. The Working Group of experts on people of African descent stated that African Americans are still underrepresented in employment. While people of African descent made up 11 per cent of the labour force in 2009, they represented 18 per cent of the unemployed and 25 per cent of the long-term unemployed (persons unemployed for 27 weeks or longer).
58. CERD regretted that workers belonging to minorities, in particular women and undocumented migrant workers, continue to face discriminatory treatment and abuse in the workplace.
7. Right to social security and to an adequate standard of living
59. CERD made reference to the high incidence of unintended pregnancies and greater abortion rates affecting African American women, and the growing disparities in HIV infection rates for minority women and recommended that efforts be continued to address wide racial disparities, which still exist in the field of sexual and reproductive health.
60. The UN-Habitat Advisory Group on Forced Evictions found allegations of instances of forced evictions caused by, inter alia, the demolition of public housing and the unequal distribution of hurricane recovery funds.
61. The Special Rapporteur on adequate housing considered that, given the crisis in affordable housing, an immediate moratorium is required on the demolition and disposition of public housing until the right to return is guaranteed to all residents.143 The Special Rapporteur recommended that residents of public housing should have effective participation in decision-making process affecting their access to housing.
62. CERD urged the State to intensify its efforts aimed at reducing the phenomenon of residential segregation based on racial, ethnic and national origins.  The HR Committee was concerned that some 50 per cent of homeless people are African American although they constitute only 12 per cent of the population.
8. Right to education
63. CERD remained concerned about the persistence of de facto racial segregation in public schools, and recommended that the State elaborate effective strategies aimed at promoting school desegregation and providing equal educational opportunity. In 2006, the HR Committee raised similar concerns.
9. Minorities and indigenous peoples
64. CERD recommended, inter alia, that the State recognize the right of Native Americans to participate in decisions affecting them, and consult in good faith with them before adopting and implementing any activity in their lands, and that the United Nations Declaration on the Rights of Indigenous Peoples149 be used as a guide to interpret the State obligations under the Convention relating to indigenous peoples.
10. Migrants, refugees and asylum-seekers
65. The Office of the United Nations High Commissioner for Refugees (UNHCR) was concerned over the United States immigration and asylum laws that have been amended in a variety of ways that are inconsistent with international standards. It urged the State to ensure that new asylum regulations to be issued in 2010 would not require overly restrictive conditions for meeting the refugee definition.
66. UNHCR noted that the State is currently detaining over 380,000 non-citizens in the United States for removal proceedings, using over 300 different facilities, the majority of which are in remote locations.152It urged the United States to provide legal representation to all such children who are seeking asylum or in immigration court removal proceedings.
67. The Special Rapporteur on the human rights of migrants recommended that immigration detainees placed in removal proceedings have the right to appointed counsel.
Migrant women who are suffering the effects of persecution or abuse, or who are pregnant, should not be detained.155 Children should be placed in home-like facilities.
68. UNHCR urged the United States to provide a pathway to permanent legal status for stateless persons within the country. For those who may not qualify for legal status, it recommended adopting suggested administrative reforms to ease restrictions placed on stateless persons.
11. Internally displaced persons
69. The Representative of the Secretary-General on the human rights of internally displaced persons, in the aftermath of Hurricane Katrina, stated that the main challenges for persons still displaced, belonging to ethnic minorities or living in poverty, were decent housing at affordable prices, access to jobs, low-level incomes and poor prospects in the medium and long term.
70. CERD remained concerned about many low-income African American residents who continued to be displaced after Hurricane Katrina, and recommended that the State increase its efforts to facilitate their return to their homes or to guarantee access to adequate and affordable housing.  The HR Committee shared similar concerns and made a similar recommendation. In its follow-up response to CERD161 and to the HR Committee the United States reported on measures taken to assist victims.
12. Human rights and counter-terrorism
71. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism urged the Government to restrict definitions of “international terrorism”, “domestic terrorism” and “material support to terrorist organizations” in a way that is precise and restricted to the type of conduct identified by the Security Council as conduct to be suppressed in the fight against terrorism.
72. The HR Committee expressed concerns about the potentially overbroad reach of the definitions of terrorism under domestic law and recommended that the legislation adopted be limited to crimes that would justify being assimilated to terrorism. UNHCR made a similar recommendation.
73. The HR Committee was also concerned that, following the 9/11 attacks, many non- United States citizens suspected to have committed terrorism-related offences have been detained for long periods pursuant to immigration laws with fewer guarantees than in the context of criminal procedures.
74. The HR Committee noted that the decision of the Supreme Court in Hamdan v. Rumsfeld, according to which Guantanamo detainees accused of terrorism offences are to be judged by a regularly constituted court, remains to be implemented.  The United States provided the Committee with a follow-up response.

10-10-01 Upcoming, first ever, November 5, 2010, review of Human Rights in the United States by the United Nations

http://www.upr-info.org/-United-States-.html


 



United States

DATE OF REVIEW:
5 November 2010 - 9.00 a.m. - 12.00 p.m.
Membership of the Human Rights Council:
2009-2012

Key documents for the review:
- National Report: A/HRC/WG.6/9/USA/1 - E
- OHCHR Compilation of UN information: A/HRC/WG.6/9/USA/2 - E
- OHCHR Summary of stakeholders’ information: A/HRC/WG.6/9/USA/3 - E
_______

From the US National Report:
VI. Conclusion 100. The United States views participation in this UPR process as an opportunity to discuss with our citizenry and with fellow members of the Human Rights Council our accomplishments, challenges, and vision for the future on human rights. We welcome observations and recommendations that can help us on that road to a more perfect union.
Delivering on human rights has never been easy, but it is work we will continue to undertake with determination, for human rights will always undergird our national identity and define our national aspirations.