From: rich@pencil.cs.missouri.edu (Rich Winkel)
Subject: New US Law Conforms to Global Human Rights
Followup-To: alt.activism.d
Originator: rich@pencil.cs.missouri.edu
Organization: PACH
Distribution: na
Date: Tue, 29 Sep 1992 00:33:10 GMT

/** headlines: 309.0 **/
** Topic: Conforming to Global Human Rights **
** Written 11:26 am  Sep 28, 1992 by ggundrey in cdp:headlines **
From: George Gundrey <ggundrey>
Subject: Conforming to Global Human Rights

/* Written  1:20 pm  Sep 25, 1992 by peacelaw in cdp:mcli.peacelaw */
/* ---------- "Conforming to Global Human Rights" ---------- */
CALIFORNIA LAWYERS CAN USE A NEW HUMAN RIGHTS LAW IN MANY CASES

Article published September 11, 1992 in SAN FRANCISCO RECORDER.

                       by Ann Fagan Ginger

Immigration lawyers, civil rights lawyers, family lawyers and
criminal lawyers can use a new law that becomes effective Sept.
9, 1992.  The International Covenant on Civil and Political
Rights (ICCPR) is a treaty derived from the Universal Declaration
of Human Rights drafted under the chairmanship of Eleanor
Roosevelt. On April 2, 1992, the U.S. Senate ratified the ICCPR,
strengthening U.S. law by committing the United States for the
first time to implement human rights for everyone in this
country, and to report our human rights violations to an
international body, as we must report our nuclear weaponry under
existing treaties. 

President Carter had signed the ICCPR in 1977 and President Bush
had urged the Senate to ratify it to strengthen U.S. foreign
policy. This treaty is now part of the supreme law of the land
under the U.S. Constitution, Art. VI, 2. The full text of the
ICCPR is in 6 Intl. Legal Materials 368 (1967). The discussion in
the Senate and its specific reservations to some provisions are
reported in Cong. Rec. S 4781-4784 (4/2/92); Pres. Bush's
depositing ICCPR is reported in "Weekly Compilation of
Presidential Documents," Vol. 28, p. 1008 (6/5/92).)

Many California lawyers work with trade treaties, international
restrictions on certain kinds of commercial fishing, and with
international trademark and copyright laws in their regular
practice. Few of us expect treaties on human rights to be taken
seriously in the United States. Knowing about the strong
protections of human rights in our U.S. Constitution, in
Amendments 1-10 (Bill of Rights), 13-15 (Reconstruction), 19
(woman's suffrage), 24 (no poll tax to vote), and 26 (18-year-old
vote), we assume that we do not need and cannot use
"international" human rights law in the United States, although
human rights violations abroad cause some of us to demand that
the international standards apply in repressive countries.

Ratification of the ICCPR requires us to start using a new tool.
Its most specific immediate changes in U.S. law are the reporting
requirement and U.S. access to the UN experts' Committee on Human
Rights.

Reporting Requirement

The Covenant requires the U.S. "to submit reports on the
measures...adopted which give effect to the rights recognized
herein and on the progress made in the enjoyment of those rights:
Within one year of the entry into force of the present Covenant
for the [United States]; and [t]hereafter whenever the Committee
so requests." (Art. 40).

We know that the issuance of reports on violations of
internationally-recognized human rights in other countries can
lead to significant demands for the enforcement of such rights.
See experiences with the U.S. State Department's so-called
Country Reports on El Salvador and Chile. A similar result can be
expected with the issuance of this report.

The U.S. reports under the ICCPR "shall be submitted to the
Secretary-General of the United Nations, who shall transmit them
to the [Human Rights] Committee for consideration." (Art.40 
1(a), (b),  2). The Committee of international experts on human
rights (not diplomats selected by member nations) can ask for
more information and shall report annually to the General
Assembly (Art. 45), where the reactions to the Rodney King
verdict and other questions about human rights in the United
States may be discussed, along with similar violent outbreaks in
other countries.

Canada has submitted several detailed ICCPR reports since it
ratified the Covenant in 1977, and, as a result, has enlarged its
stated human rights and its protection of minority rights.
(Thanks to Justice Frank Newman, now returned to UC-Berkeley
Boalt Hall, Canada's reports under the ICCPR, and much more
useful material on human rights, is available in the UN Room at
Boalt.)

The first U.S. report is due September 9, 1993. Its description
of human rights law in the U.S. and in the several states, Puerto
Rico, District of Columbia, Guam, etc., must include the degree
to which we have fulfilled out undertaking "to respect and to
ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant,
without distinction of any kind, such as race, color, sex,
language, religion, political or other opinion, national or
social origin, property, birth or other status." (Art.2(1))

We, in California, are justly proud of our constitutional and
statutory guarantees of equal protection for many groups, going
beyond national law. But this list clearly includes groups we
have not specifically mentioned when it forbids "distinction of
any kind" based on color, language, political or other opinion,
national or social origin, property, birth or other status. (This
forbids discrimination against children "born out of wedlock" and
against the disabled, homosexuals and other "status" groups.)

The ICCPR also commits the U.S. to ensure "the equal rights of
men and women to the enjoyment of all civil and political rights
set forth in the...Covenant." (Art.3).

A New Jurisdiction To Hear Human Rights Issues

The U.S. Senate wisely declared that "it accepts the competence
of the Human Rights Committee to receive and consider
communications under Article 41 in which a State Party claims
that another State Party is not fulfilling its obligations under
the Covenant." This gives the Committee the power to deal with 
communications as to the United States. (Art. 41.1)

Lawyers with clients seeking assistance on human rights
violations abroad now have a new procedure available if their
clients are from 33 other nations that have agreed to Art. 41.1:
Algeria, Argentina, Austria, Belgium, Canada, China, Congo,
Czechoslovakia (sic), Denmark, Ecuador, Finland, Gambia, Germany,
Hungary, Iceland, Ireland, Italy, South Korea, Luxembourg, Malta,
Netherlands, New Zealand, Norway, Peru, Philippines, Poland,
Russia, Senegal, Spain, Sri Lanka, Senegal, United Kingdom and
Zimbabwe.

The procedure is nation-to-nation and is spelled out in Articles
41-43, moving from closed Committee hearings to an ad hoc
Conciliation Commission. It is relatively slow and its ultimate
depends on the mobilization of shame, domestically and
internationally.

New Civil Rights Law

The U.S. is now committed to report on its protection of ethnic
or linguistic minorities from arbitrary deportation (Art. 12);
"they shall not be denied the right...to use their own language"
(Art.27), and they are guaranteed due process of law and equal
treatment (Arts. 2(1), 13, 14, 26.

The U.S. has now agreed to report on its "respect [for] the
liberty of parents and...legal guardians to ensure the religious
and moral education of their children in conformity with their
own convictions." (Art.18(4)). We have also agreed to report on
freedom of religion, which shall include "freedom, either
individually or in community with others and in public or
private, to manifest his religion or belief in worship,
observance, practice and teaching." (Art.18).

New Protections for the Family

The U.S. specifically agreed to report on its recognition of the
fundamental role of the family in society in Art.23(1) and its
provisions for its protection in many ways. The ICCPR prohibits
the "arbitrary or unlawful interference" with one's "privacy,
family, home or correspondence" and guarantees the right of all
"to the protection of the law against such interference."
(Art.17(1) and (2)).
     
The U.S. has now committed itself to report on its work to
"ensure equality of rights and responsibilities" between the
spouses both during marriage and at its dissolution (Art.23(4)),
and to safeguard children by assuring that they have a right to
necessary "measures of protection" and that these will be
provided in a non-discriminatory manner. (Arts. 23(4) and 24(1)).

New Criminal Law

The United States has now agreed to report on its enforcement of
the right of the defendant to counsel in any criminal case (not
excluding misdemeanors or infractions) "without payment...if he
does not have sufficient means to pay for it," and to "free
assistance of an interpreter." (Art.14(3)).

The U.S. has agreed to report on the extent to which "No one
shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected
without his consent to medical experimentation." (Art.7) This
language is new.

The U.S. has now agreed to report on the extent to which "The
penitentiary system shall comprise treatment of prisoners the
essential aim of which shall be their reformation and social
rehabilitation." (Art.10(3)). [The U.S. Senate recognized
"punishment, deterrence, and incapacitation as additional
legitimate purposes for a penitentiary system."] 

Individual Responsibility

In the ICCPR, the United States committed each citizen to act for
human rights: "[T]he individual, having duties to other
individuals and to the community to which he belongs, is under a
responsibility to strive for the promotion and observance of the
rights recognized in the present Covenant." (Preamble,  5).

The Senate committed the federal government to report on
enforcement of the rights over which it has jurisdiction and "to
take measures appropriate to the Federal system to the end that
... state or local governments" will also fulfill the Covenant.

What Lawyers Can Do Now

Meiklejohn Civil Liberties Institute in Berkeley is calling for
help from lawyers and the legal community to prepare outlines and
lists of experts, laws, and  sources of data to assist the U.S.
and California to prepare complete and accurate information for
inclusion in the first U.S. report under the ICCPR, which is due
at the UN on Sept. 9, 1993. (510) 848-0599; fax (510) 848-6008,
Box 673, Berkeley, CA 94701.

Lawyers can also urge the House and Senate to execute all of the
Articles in the ICCPR to make them enforceable in U.S. and
California courts, as the House and Senate have executed the
Refugee Convention and the Genocide Convention.

** End of text from cdp:headlines **

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