U.S. failure to engage in constructive dialogue with U.N. experts during the 2023 ICCPR Review – Part II

By Ámbar Reyes Pérez, Musa Siam, Roaa Hussien, 3Ls at UIC Law, and Professors Sarah Dávila A., and Lauren E. Bartlett

Part I of this two-part post was published here and builds on the previous post written by Profs. Dávila A. and Bartlett on the 2023 ICCPR review.

Benefits of Human Rights Treaty Reviews for State Parties

The benefits of reporting incentivize countries to participate in treaty reviews. Human rights treaty reviews allow them to gain technical advice from experts on implementing the rights set out within the treaties they have ratified. Moreover, the treaty review allows for the conversion of interstate complaints into reports, allowing regional and international human rights mechanisms to engage with those reports of human rights violations.  

The core foundation of the human rights reporting process is engagement. In compiling these reports, countries are supposed to reflect and assess their own human rights situations, including violations. Countries are encouraged to conduct comprehensive reviews of their human rights policies implementation and progress and then identify gaps presenting obstacles to achieving a society based on dignity and human rights. The bottom line is that human rights treaty body reporting allows for review by other countries, United Nations entities, constructive dialogue, civil society input and international expert advice.

The Role of U.S. Civil Society in the Human Rights Treaty Review

The Human Rights Committee considers the role of civil society key to fulfilling its mandate effectively. Specifically, the Committee considers it necessary that the constructive dialogue be based on information received from the state party, other United Nations entities, and civil society.  Civil society provides information to the state party, which the state party should put in its periodic reports.  Civil society also provides information directly to the Committee through alternative or “shadow” reports and the presentation of oral information during briefings with the Committee.

Ahead of the review of the United States in October 2023, U.S. civil society submitted 127 shadow reports to the Human Rights Committee.  A summary of those reports was compiled by the International Human Rights Clinic at UIC Law and the Program on Human Rights and Global Economy at Northeastern Law.  The shadow reports covered issues as broad as the need to establish a National Human Rights Institution, to discrimination based on gender and sex, freedom of expression, assembly and association, Indigenous rights, the right to privacy, treatment of non-citizens, refugees and asylees, rights to food and water, criminalization of homelessness and poverty, and the treatment of persons deprived of liberty, among others.

U.S. civil society was also able to both formally and informally present oral information to the Committee. Committee members participated in informal briefings organized by U.S. civil society in July and September 2023, with two in-person during the week leading up to the formal review in October 2023.  In addition, the Committee allowed almost ninety minutes for U.S. civil society to present during the formal NGO briefing for its 139th session on Monday October 16, 2023. There were a record number of U.S. civil society members present in-person in Geneva for the review – over 140 persons traveled to Geneva to attend the review. Oral presentations by directly impacted persons made up the majority of those oral presentations to the Human Rights Committee, including those impacted by death by incarceration sentences, those subjected to racial discrimination and excessive force at the hands of the Border Patrol, Indigenous voices, and more.

As has been noted on this blog previously, the Fifth Periodic Report submitted by the United States to the Committee was  incomplete and outdated.  Therefore, the information provided by U.S. civil society helped provide the Human Rights Committee with a fuller and more accurate understanding of the human rights issues and violations of human rights at the federal, state, and local level in the United States.

The Constructive Dialogue at the U.S. Review in 2023

The Constructive Dialogue between the Human Rights Committee and the U.S. took place on October 17 and 18, 2023. On October 17, Ambassador Michèle Taylor began by giving some broad opening remarks to the Committee. The Country Report Task Force for the U.S. Review, consisting of Committee members Tijana Šurlan, Imeru Tamerat Yigezu, Changrok Soh, Marcia V.J. Kran, and Yvonne Donders, then began asking the U.S. government delegation direct questions, most of which focused on information provided by U.S. civil society. Other Committee members also asked additional questions to the U.S. delegation.  For example, Ms. Donders asked what the U.S. does to combat racism in the criminal justice system and what targets does the U.S. set to eliminate bias. 

The U.S. government delegation then had a chance to respond to the Committee’s questions. The U.S. officials’ responses consisted entirely of reading pre-written statements that did not directly address the questions the Committee asked. The Committee then took a brief break and came back to ask a few more questions.  The U.S. delegation responded briefly before the Committee Chair Abdo Rocholl adjourned the session for the day.

On October 18, 2023, the Country Report Task Force started off by asking deeper, more probing questions of the U.S. delegation. For example, Committee Member Kran asked what measures the United States is taking to address voting disenfranchisement for those who have served felony sentences. Ms. Kran also asked the U.S. delegation to please engage with her and her colleagues’ specific questions and not speak generally. The U.S. delegation again responded by reading pre-written statements that did not directly address the questions asked by the Committee. The Committee took a break and when the Committee came back, a few additional Committee members asked questions.  The U.S. delegation responded again by reading pre-written statements that were only sometimes responsive to the questions presented by the Committee.

When Ambassador Michèle Taylor began providing her broad closing remarks, U.S. civil society members silently stood up and turned their backs on the Ambassador. Once the Ambassador completed her remarks, civil society turned and sat back down. In her closing remarks, Human Rights Committee Chair Abdo Rocholl re-emphasized that the Committee recommended that the United States ratify each of the United Nations human rights treaties and thanked the large number of people from U.S. civil society and government who attended the review – she said thanks in a few indigenous languages – before formally closing the Fifth Periodic Review of the United States by the Human Rights Committee.

The protest was important for U.S. civil society members who were present at the U.S. review. They were frustrated and outraged over the U.S. government’s failure to reply to the Committee’s important questions. The sheer number of civil society members in the room and the dramatic but otherwise un-interrupting silent protest was meant to send a strong message to the U.S. government. Hopefully the U.S. government will do better next time.