As originally intended, the Universal Declaration of Human Rights was only the cornerstone of human rights principles. Although the United Nations viewed the declaration as a fundamental statement on human rights, it also recognized that future action would be necessary to promote compliance with human rights principles. Legally binding documents would follow the declaration and provide the glue with which to require countries to meet human rights goals.
The declaration usually avoids referring to any nation or state; rather, its point of view generally mirrors that of the individual or group. The use of the word everyone throughout the declaration indicates the intent to include all persons in the area of human rights, but the declaration rarely imposes any obligation on a particular country or government. Although the declaration refers to various “rights” of individuals and groups, it does not specify who must fulfill those rights or how those rights are to be enforced. In sum, the declaration resembles a code of conduct with which everyone should comply. But without allocating responsibility to governments or individuals, the declaration can only be a statement of intent with no power of enforcement.
Understanding that the declaration was only the initial step in promoting a uniform system of human rights, members of the United Nations contemplated the next steps that would lead to greater recognition of human rights. The steps to be taken included the drafting of documents that would require states to recognize human rights as legally binding.
The United Nations imposed no specific time frame for completing the documents that would actually realize the human rights contained in the declaration. Considering that drafting the declaration took only a few years, a similar time frame for drafting documents to enforce the declaration might have appeared reasonable. The countries, however, balked at the thought of surrendering their sovereignty to an instrument that could bind them to a world standard (Economist 1998). The cold war, with the United States and its allies pitted against the former Soviet Union and its allies, also led to disagreements over the importance of various provisions that were to be part of the enforcing documents. In the United States, debate raged over the provisions concerning racial equality and economic rights. Would the United States have to offer everyone health care if the Universal Declaration became the law of the land? Would it have to provide equal educational opportunities? Other countries had their own agendas to consider. The Soviet Union and other communist countries would have to recognize greater freedom of speech and allow freer movement of its peoples. South Africa would have to tear down its apartheid system.
Eventually, in 1966, after eighteen years of debate, members of the United Nations General Assembly adopted two key documents with which to implement the Universal Declaration: (1) the International Covenant on Civil and Political Rights and (2) the International Covenant on Economic, Social, and Cultural Rights. These documents derive from the declaration and contain standards for judging human rights violations. In contrast to the declaration, countries approving these covenants are required to enforce their provisions.
The European Union and Human Rights
An eight-page “special advertising supplement” that the European Union (EU) placed in the U.S. magazine Foreign Policy illustrates the importance of human rights to its current membership of twenty-seven countries (Foreign Policy 2009). The supplement is entitled “Advancing Human Rights Worldwide, The EU Leading by Example”:
Every day throughout the world, human rights are in jeopardy. Authoritarian regimes deny rights to their citizens in their misuse of power. Vulnerable populations and minorities are abused, particularly in conflict-ridden regions. Even in democratic societies, capital punishment, unlawful detention, and torture are employed when fear and insecurity override the enlightened application of the rule of law.
Respect for human rights lies at the heart of the European Union. Bringing together the voice of 27 European nations, the EU is a leader in global efforts to protect human rights. After more than 50 years of peace and prosperity in Europe, the EU is proof of the profound and lasting benefits that can flow from respect for human rights, democracy, and the rule of law. (Foreign Policy 2009, EUFOCUS 1)
Throughout this paid advertisement, the EU explains and promotes human rights in all aspects of society. Some people might question its motives for posting this advertisement and claim that its real intent is to hold itself above the United States in the promotion of human rights. An equally plausible interpretation of the advertisement is that the EU truly believes that human rights are important and must be practiced at all levels of society.
International Bill of Human Rights
To understand the full scope of human rights, social workers must be familiar with what is known as the International Bill of Human Rights, which includes the Universal Declaration and the two covenants just described. The purpose of the covenants is to ensure that countries take the declaration seriously and make efforts to legally bind their governments to protect the human rights and freedoms outlined in the declaration. An additional document, the Optional Protocol to the covenant on political rights, allows individuals to raise human rights complaints.
In 1976, a sufficient number of member countries of the United Nations had ratified (or approved) the International Covenants on Civil and Political Rights and Economic, Social, and Cultural Rights to put the covenants into force within the approving countries. A UN covenant takes effect only after a specified number of member countries of the United Nations have approved it. Countries approving the covenant are then legally bound to enforce its provisions. Only by signing and then formally approving a covenant does a country indicate its intent to be bound by it. Even then, unless a covenant states that it is “self-executing,” a country that has approved it must pass laws to enforce it. Neither the covenant on civil and political rights nor the covenant on economic, social, and cultural rights contains self-executing provisions. Although the United States has ratified the covenant on civil and political rights, the government has not enacted specific legislation to enforce it. Although many provisions in the covenant are similar to already existing laws in the United States, some of the provisions are new. Yet because the covenant is not self-executing, its provisions are not legally binding in the United States and thus makes reliance on the document a tenuous proposition. The remainder of this chapter addresses the provisions of the covenant on civil and political rights.
The International Covenant on Civil and Political Rights
Historically, the United States has paid much more attention to the human rights in the International Covenant on Civil and Political Rights than those in the International Covenant on Economic, Social and Cultural Rights. Indeed, this focus on political and civil rights has often led the United States to take a one-sided view of human rights, without adequately recognizing that human rights go beyond the political sphere. For U.S. social workers, this focus on political human rights may have led to a reluctance to study and integrate human rights into the social work profession. Yet, as will be evident in an analysis of the covenant, political and civil human rights also have a close connection to the profession’s interventions and principles.
Introduction to the Covenant
The preamble or introduction to the International Covenant on Civil and Political Rights expressly lists civil and political rights that “derive from the inherent dignity of the human person” (see appendix B). The “ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social, and cultural rights” (preamble). This provision links political and civil rights with economic, social, and cultural rights, thereby making them indivisible. That is, to ensure enjoyment of economic, social, and cultural rights, individuals must also have civil and political rights. The two sets of rights are inseparable.
Part I
Part I of the covenant guarantees the human right of self-determination to all “peoples” who may “freely determine their political status and freely pursue their economic, social, and cultural development” (art. 1). A state or country may contain numerous peoples within its borders, and this provision recognizes that groups of the same ethnicity, religion, language, and other common traits have the human rights to common association and development.
Self-determination has become a significant development in world politics since the Universal Declaration was drawn up. Beginning in the late 1940s, European colonies in Africa and Asia began dismantling, resulting in dozens of newly formed nations, including India, Pakistan, Malaysia, Ghana, and Cameroon. Other nations formed on principles of self-determination include the Czech Republic, Macedonia, Croatia, and the territories of the former Soviet Union. Native Americans and other aboriginal peoples relied on the right to self-determination to establish their own self-governing nations within Australia, Canada, and the United States. Contemporary struggles involving self-determination include those by Palestinians, Tibetans, and peoples within Indonesia. In connection with the right to determine political status, self-determination allows peoples to freely pursue their economic, social, and cultural development. Individuals or groups with common origins have the human right to form societies that promote historical traditions and customs. Groups with common backgrounds might wish to form an organization to discuss the difficulties of assimilating into a dominant culture. The human right of self-determination protects all these activities.
Self-Determination of First Nations Peoples
Unlike other ethnic or racial groups in the United States, First Nations Peoples are a political entity. The U.S. government recognizes its indigenous peoples as having a special, legal government-to-government relationship with the United States (Pever 1992). By law, they are “distinct, independent, political communities possessing and exercising the power of self-government” (Worcester v. Georgia, 1832). As a consequence of sovereignty, indigenous peoples may participate in three levels of citizenship: indigenous, state, and United States. Indigenous families who belong to federally recognized tribes are eligible to receive federal services such as health care, education, and social services.
Sovereign Indigenous Nations have inherent powers of self-government. They have the right to make, pass, and enforce laws, implement taxation, create tribal constitutional codes, license social workers, declare war, and seek remedy in international courts of law. They also possess aboriginal territories (land) that are protected under trust agreement with the United States. Social workers who work with and on behalf of Indigenous Peoples must respect Indigenous sovereignty. They must agree to abide by all laws of the nations just as they would in any other country. . . . Any issues regarding the welfare and protection of indigenous children fall under the province of Indigenous Nations. Sovereignty is essential to the preservation, the rights, and resources of Indigenous Nations and is a powerful protective factor. No other racial group in the United States has a similar sovereign political and legal standing. (Waller and Yellow Bird 2002, 51)
In exercising the human right of self-determination, individuals and groups have an obligation not to violate the rights and freedoms of others, including “just requirements of morality, public order, and the general welfare in a democratic society” (see appendix A, Universal Declaration, art.29, para. 2). The issue then becomes one of balancing the different human rights and finding a resolution.
Self-determination ranks as a significant human right that states must respect. Yet, can every conceivable ethnic or religious group create its own political entity or state? This issue, perhaps more than any other human right, has most influenced today’s world. Like many human rights, self-determination as a concept contains may subtleties and nuances. Not every set of circumstances has a clear-cut option involving issues of self-determination.
Self-Determination and the Palestinians
The creation of Israel in 1948 by the United Nations offended most of the Arab countries, which bitterly fought this decision from the beginning. While the UN also contemplated establishing a Palestinian state alongside that of Israel, this never occurred. But the push for a Palestinian state has never stopped.
Under the self-determination principles of the Covenant on Civil and Political Rights, Palestinians would appear to be justified in wanting their own political entity. A claim for self-determination must not infringe on the public order and welfare, however. Accordingly, Israelis could legitimately argue that in seeking self-determination, the Palestinians have no right to use violence against them. The Palestinians might respond that without violence, nobody—especially the Israelis—would pay attention to their plight. The Palestinians might further argue that the Israelis’ tactics (e.g., attacks on civilians of Gaza) also constitute violations of their human rights. The end result is a stalemate between the Israelis and the Palestinians, with both sides committing human rights violations against the other.
A human rights resolution to this conflict would require both parties to cease the violence against each other and recognize the inherent dignity of both sides. Palestinians have the right of self-determination and political status, and Israelis have the right to be free from violent attacks on their citizens. Infusing human rights principles into this particular situation would require major commitments from both sides, a challenging task.
SELF-DETERMINATION AND SOCIAL WORK
Social workers are familiar with the concept of self-determination in the context of clients. The Code of Ethics of the National Association of Social Workers (NASW) states:
Social workers respect and promote the right of clients to self-determination and assist clients in their efforts to identify and clarify their goals. Social workers may limit clients’ right to self-determination when, in the social workers’ professional judgment, clients’ actions or potential actions pose a serious, foreseeable, and imminent risk to themselves or others. (NASW 1996, 1.02)
The social work concept of self-determination in regard to clients is the same principle of self-determination as that contained in the Covenant on Civil and Political Rights. Individuals and groups should be allowed to “identify and clarify” their own goals, with specified limitations. Social workers may intervene and limit a client’s right to self-determination when a client is acting in a manner that could be harmful to him or her. This type of self-harm could occur in cases when a client wishes to end his or her life, although social workers may debate the ethics of euthanasia and physician-assisted suicide (Reamer 1998). Other, more subtle issues arise in cases of self-harm:
How assertive should social workers be with battered women or men who decide to resume a relationship with an abusive partner? Should social workers interfere with hospital patients who want to return home while they are still in very frail condition and acting against medical advice? To what extent should social workers provide clients with access to information about themselves that is likely to be harmful to the clients? (Reamer 1998, 28)
Issues of self-harm within the standard of self-determination also relate to the human rights notion of self-determination. For instance, should a social worker promote a group’s right to isolate itself culturally from other groups if this isolation prevents members of the group from receiving proper medical care? Should a social worker accept a cultural practice of touching a child’s private areas if that touching would likely violate state laws pertaining to child abuse? These types of self-determination issues fall within the realm of human rights and indicate how difficult it can be to always have clear-cut answers to human rights issues.
A second limitation on self-determination in social work involves potential harm by a client to others. The justification for social workers’ placing limits on clients’ right to self-determination is based on the social workers’ explicit concern for other people whose well-being is threatened by a client’s actions (Reamer 1998). If a client credibly states that he intends to kill someone, then a social worker clearly has the duty to report this possible action to the proper authorities. But when the client’s actions are ambiguous and may not cause any harm to others, then a social worker encounters one of those gray areas common to both ethical and human rights issues.
Suppose that the Native American parents of a child have been living in a suburb of Los Angeles, where the child does superior work in an excellent school. The parents then decide to move to a reservation to take care of their own elderly parents. The child rebels against reservation life and runs away, back to friends in the suburb. Should the social worker accept the parents’ right of self-determination to raise their child on the reservation or question that right because he or she believes the child is being harmed by not being allowed to attend the suburban school? Or should the social worker be guided by what the child or adolescent wants? The social worker would need to carefully evaluate the situation before proposing possible interventions. Just as social workers encounter all types of dilemmas within the ethical standard relating to self-determination, similar dilemmas can be found in the broader, human rights concept of self-determination.
Part II
The second part of the covenant requires that states not discriminate in the recognition of rights on the basis of “race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status: (art. 2, para. 1). States are to ensure the “equal right of men and women to the enjoyment of all civil and political rights” contained in the covenant (art. 3). In times of true emergency, states may take measures to avoid their obligations under the covenant, provided those measures comply with international law and do not discriminate solely on the preceding stated grounds (art. 4, para. 1). But discrimination during an emergency does not allow restrictions on political or other opinions, national origin, birth, or other status. Even in emergencies, states may not violate certain political and civil rights, including the right to be free from slavery, torture, and religious persecution.
Part III
Part III (arts. 6–27) of the covenant contains the specific civil and political rights applicable to those states or countries that have approved the covenant.
• Article 6: Every human being has the inherent right to life. Many countries have interpreted this provision as prohibiting the death penalty for criminal convictions. The covenant has no outright ban on capital punishment, however, except that no sentence of death may be imposed for crimes committed by persons under eighteen years of age and the death penalty may not be carried out on pregnant women.
• Article 7: Prohibits torture and cruel, inhuman, or degrading treatment or punishment.
• Article 8: Prohibits slavery and forced labor, except when the punishment for a crime includes forced labor.
• Article 9: Provides safeguards against arbitrary arrest and detention by requiring information about the reasons for the arrest. This requirement is intended to allow prompt challenges to the lawfulness of the detention.
Capital Punishment in the United States
The United States remains the only Western country still allowing the death penalty; the European Union, Australia, New Zealand, and many other countries have abolished the use of capital punishment, no matter how egregious the crime.
A major issue surrounding the use of the death penalty in the United States is the horrendous consequences if the wrong person were executed. Consider the following proposition: “A Columbia University study has found that judges are more likely to overturn death sentences in states and countries that use capital punishment most frequently, prompting the authors to suggest that narrowing the use of executions would cut down on mistakes” (Masters 2002, 34). The admission that mistakes occur in applying death sentences should send chills up anyone’s spine. Rather than simply abolishing the death penalty, though, the United States clings to the illusive goal that the system can be fixed. But consider these specific findings from the Columbia study:
• Jurisdictions that spent proportionally less per capita on their court systems had a larger share of cases overturned. This supports the commonly held view that poorly paid and incompetent court-appointed defense lawyers are a major source of error in capital cases.
• States with large black populations also had higher reversal rates on appeal of death sentences. This statistic indicates that jurisdictions where fear of crime might be driven by racial factors could have more trouble conducting fair trials.
• Reversals were more common in states where trial judges are popularly elected and, the authors of the study theorize, more subject to community pressure. (Masters 2002, 34)
The use of capital punishment raises important human rights issues, including discrimination and due process, as the difficulty of ever satisfying those issues creates a strong case against this type of punishment. Even those who support capital punishment may recognize the difficulties inherent in the death penalty. In early 2009, Bill Deeken, a Missouri state representative and supporter of the death penalty, called for a moratorium in Missouri to examine procedures in that state:
A death penalty moratorium is important because there is fear that an innocent person could be executed. While there is much to be proud of in our criminal justice system, it still is a human system. Mistakes can and have been made when it comes to the death penalty. Nationally, 129 people who were convicted and sentenced to death since 1973 have been exonerated. (Deeken 2009, B7)
Deeken’s call had little effect, however, for on May 20, 2009, Missouri reinstated its use of the death penalty by executing its first person in four years. The hold on executions was based on the issue of whether lethal injection and, specifically, Missouri’s method of lethal injection violated constitutional protections against cruel and unusual punishment (Salter 2009). The human rights objection to capital punishment is that the punishment in itself is cruel and inhumane and is certainly becoming unusual.
In Texas, the state executed a man who quite possibly did not commit the crime of murdering his children in a house fire. In fact, a detailed investigation of the case after the defendant’s execution found that he most likely did not commit any crime relating to his children’s deaths. In 2005, Texas established a government commission to investigate errors that may have occurred in the defendant’s trial concerning scientific evidence presented at the trial. While it seems unlikely, Texas could become the first state that must actually admit that it executed an innocent person (Grann 2009).
Although any call for a moratorium on the death penalty may seem admirable, the admission that 129 people who were sentenced to death have been exonerated places a chilling effect on the death penalty itself. The cost of examining and then creating legal procedures to resolve existing defects in the legal system seems futile, for the criminal justice system will always make errors because it is a “human system.” A better alternative would be to abolish the death penalty outright.
• Article 10: Provides that accused persons shall be segregated from convicted persons, and juveniles shall be separated from adults and brought as speedily as possible for adjudication. Rehabilitation shall be the “essential aim” of the penitentiary system, with humane and dignified treatment for all persons deprived of their liberty.
• Article 11: Prohibits imprisonment simply because someone did not fulfill a contractual obligation.
• Article 12: Provides individuals lawfully living in a country with the right to reside where they want in the country. Except in cases involving national security and public order, everyone shall be free to leave any country. No one shall be arbitrarily deprived of the right to enter his or her own country.
• Article 13: Provides those persons lawfully living in the territory of a state that is party to the covenant with legal safeguards, including representation, before expulsion from that state. Only if there are compelling reasons of national security may a state expel a lawful “alien” resident without legal due process.
• Article 14: Provides safeguards for any person charged with a crime. These safeguards include the right to legal assistance, information in detail about the nature and cause of the charge, examination of witnesses against him or her, and the right to remain silent and not be compelled to testify. Nobody shall be tried twice for the same offense, and everyone convicted of a crime shall have the right to appeal that conviction to a higher tribunal.
• Article 15: Prohibits “ex post facto” laws. Nobody shall be guilty of any criminal offense on account of any act or omission that did not constitute a criminal offense at the time that he or she committed the act or omission. This prevents a state from prosecuting someone at a later date for an offense that was not criminal at the time of commission.
• Article 16: Prohibits a state from barring certain individuals recourse through that state’s courts. For example, a state may wish to unlawfully exclude an individual in the state from obtaining civil damages for personal injuries. The state may believe that an individual living unlawfully in the country should not receive the same legal rights and privileges as a lawful resident. This article prevents a state from singling out individuals as less worthy of legal protection, in either civil or criminal courts.
• Article 17: Prohibits arbitrary or unlawful interference with the privacy and reputation of individuals and families.
• Article 18: Grants everyone the right to freedom of thought, conscience, and religion. The freedom to practice one’s religion or beliefs may be restricted only when necessary to protect public safety, order, health or morals, or the fundamental rights and freedom of others. While this article appears to guarantee freedom of religion, states could broadly interpret this limitation to ban any religion (e.g., a particular religion infringes on the public safety and must be banned).
• Article 19: Grants everyone the right to freedom of expression. Restrictions on this freedom may be applied when necessary to protect the rights or reputation of others and to protect national security, public order, or public health and morals. As with the limitation on freedom of religion in article 18, a state could broadly interpret the allowable restrictions to bar essentially any type of expression.
• Article 20: Prohibits war propaganda and any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. This article prohibits the practice of racial profiling or adversely singling out individuals because of physical or other characteristics.
Political and Civil Rights: The Importance of Role Models
Back in the days of the cold war between the West, led by the United States, and the East, led by the Soviet Union, the West continually charged the East with human rights violations that included media censorship, political prisoners, and a general lack of “democracy.” While much of the East has now adopted a more Western outlook regarding political human rights, one country remains in a time warp: Cuba. By most standards, Cubans lack freedom of movement, freedom of expression, and other basic political human rights.
To show its displeasure with Cuban human rights violations, the United States restricts trade with Cuba and does not allow most U.S. citizens to travel to Cuba without authorization. When U.S. reporters, politicians, academics, or other authorized visitors travel to Cuba, they must be careful not to praise the Cuban government, lest they run the risk of being criticized by the media and the U.S. government. When a group of U.S. politicians from the Congressional Black Caucus traveled to Cuba and challenged the trade blockade between Cuba and the United States but sidestepped Cuba’s repressive political system, the knives came out. Syndicated columnist Clarence Page criticized the black caucus for its failure to engage the Cuban government over human rights abuses (Page 2009).
From a human rights perspective, Cuba is a gross violator of various political and civil rights. But when the United States criticizes Cuba’s human rights violations, some hypocrisy comes into the picture. The United States itself has lowered its standards regarding political rights to the point that it practiced torture and imprisoned detainees without any due process and did this in an area on the Cuban island. The irony and hypocrisy certainly could not have been lost on Cuban officials.
Governments and individuals should speak out against human rights violations whenever they occur. But cleaning up the backyard first goes a long way to gain credibility.
• Article 21: Recognizes the right of peaceful assembly with the customary limitations based on national security, public safety, public order, protection of public health or morals, and the protection of rights and freedoms of others. As with other human rights that are limited, a state can easily restrict any peaceful assembly.
• Article 22: Grants everyone the right to freely associate with others and to form and join trade unions, with the usual limitations (e.g., national security). This article does not prevent a state from placing “lawful restrictions” on members of the armed forces and police. For example, a lawful restriction on police could consist of a “no strike” clause in their labor contract.
• Article 23: Entitles the family as the “natural and fundamental group unit of society” to protection by society and the state. A state shall recognize the right of “men and women” of marriageable age to create a family. Although same-sex marriages do not appear to fall under this human right, the states would be free to enlarge this right to apply to all types of families, including same-sex and singleparent families.
• Article 24: Grants children the right to protection, immediate registration after birth, a name, and a nationality.
• Article 25: Guarantees citizens the right to participate in public affairs and to vote without discrimination based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. This article specifies “citizen” and not lawful resident, which would allow states to bar noncitizens from voting.
Sex Offenders: Branded for Life?
The human right guaranteeing citizens the right to participate in the community often seems lacking for those convicted of felonies, especially those involving sex abuse. In the United States, many states have laws that forbid sex offenders from living or working near churches, schools, day care centers, parks, or any other place where children may gather. In most states, sex offenders must also be registered on a public database (Chen 2009). Denying convicted felons the right to vote seems harsh enough, but to severely restrict felons from reconnecting with society after serving their sentences can be counterproductive.
Without question, the protection of children is paramount for all societies. But when the penalties imposed on convicted sex offenders, some of whom were convicted for juvenile sex crimes, prevent any realistic integration back into society, a human rights issue arises. (A juvenile sex crime refers to sex between a minor or adult when the minor is under a certain age, usually sixteen. It makes no difference whether the parties agree to the sex.) Sex offenses should not be downplayed, and offenders must be monitored, but to create a total misfit out of every convicted sex offender seems unnecessary, especially when considering the varying degrees of sex offenses.
Everyone has the human right to participate in society, within rational limitations. Simply branding every sex offender as an outcast may violate this right.
• Article 26: Establishes equal protection for all persons before the law. Equal protection refers to the legal concept of not being singled out for different treatment on the basis of some status. This human right resembles an ethical responsibility of social workers: Social workers “should not practice, condone, facilitate, or collaborate with any form of discrimination on the basis of race, ethnicity, national origin, color, sex, sexual orientation, age, marital status, political belief, religion, or mental or physical disability” (NASW 1996, 4.02).
• Article 27: Grants minority groups within a state the right to enjoy their “own culture, to profess and practice their own religion, or to sue their own language.” This human right appears to conflict with proponents who favor using only the English language in the United States. Under this article, a Hispanic person in the United States would be allowed to use Spanish as his or her own language.
This part of the covenant contains many civil and political rights that in some countries already exist, at least on paper. Because one state may interpret a particular article differently than another state does, the meaning of a given article can vary. To say that any single state knows and follows the definitive interpretation of human rights is both arrogant and incorrect. Room for differences must be allowed, particularly considering the vast number of states and cultures involved. Nonetheless, these articles have general themes that create principles that social workers everywhere can apply to their practice. Social workers in the United States already have incorporated many of these human rights principles into their association’s code of ethics. This connection between human rights and social work ethics and practice can be found throughout the area of human rights.
The Human Right to Due Process
After the terrorist attack on the World Trade Center in New York, the United States began to detain many individuals picked up in Afghanistan, Iraq, and other places. Many of them were sent to the U.S. detention center at Guantánamo, Cuba, known as Gitmo for short. The United States. denied these detainees any right to contest their confinement, claiming that they were “enemy combatants” captured during combat in the war on terror. As fighters in an armed conflict, they had no right to due process, to know the charges against them, and to defend themselves in a legitimate legal proceeding.
From a human rights perspective, the practices at Guantánamo are improper. The concept of a war on terror that is never ending with no geographical limits clearly violates human rights principles when that concept is used to deny individuals their basic human rights. To simply refer to the prisoners at Guantánamo as terrorists with no chance to contest their confinement violates the essence of human rights principles, which were established to prevent this very situation.
According to Mary Robinson, the UN High Commissioner for Human Rights at the time of the attack on the World Trade Center, the United States’ response caused harm. Harsh U.S. detentions and interrogations in Iraq, Afghanistan, and Guantánamo gave a dangerous signal to other countries, which could easily follow suit. Based on a report by international law experts, many undemocratic states have referred to the U.S. counterterrorism practices to justify their own abuses, a trend that Robinson found alarming (MacInnis 2009). Clearly, the politics of fear should not be allowed to erode a well-established human rights foundation.
Part IV
The fourth part of the covenant establishes a Human Rights Committee with the apparent purpose of monitoring steps that those states party to the covenant have taken in implementing the rights guaranteed by the covenant (art. 28). Part IV requires states to submit written reports to the committee on the measures they have adopted to implement these rights and the progress made in granting these rights (art. 40, para. 1).
Those Pesky Human Rights Reports: Meaningless?
The website of the Office of the United Nations High Commissioner for Human Rights contains all types of reports about each country and its perceived compliance with human rights documents, including the International Covenant on Political and Civil Human Rights. Some of these reports are quite critical of particular countries’ various practices. For instance, with respect to the covenant on political and civil human rights, China comes under fire for its labor camps and attempts to indoctrinate prisoners so they will adopt correct political positions. Predictably, the United States is criticized for its detainee policies relating to the “war on terror.” No country escapes scrutiny or criticism in regard to its human rights compliance. The longer the reports are, however, the more bones the commission has to pick with the particular country.
Another significant aspect of the human rights–reporting procedures is whether a country offers a “standing invitation” for visits by human rights officials. Most Western countries do offer a standing invitation, with the notable exception of the United States, which does not. Also, the United States has been extremely tardy in providing its own reports required under article 40 of the International Covenant on Political and Civil Human Rights. The clear import of this foot dragging is that the United States does not take its obligations under the covenant seriously.
Do reports issued by the United Nations mean anything if a country is then free to do what it wants? Perhaps not, but at a minimum, a country must at least pay some attention to how others view its compliance with human rights. This should be especially important to a country like the United States, which holds itself up as a role model to others in the area of human rights.
Part IV contains provisions for one state to submit to the committee a written complaint about another state for failing to fulfill its obligations under the covenant (art. 41, para. 1). But this is rarely done, as formally charging a country with a human rights abuse before the committee can create problems and countercharges. After all, no country is free from human rights abuses, and the complained-about country can easily retaliate with its own complaint.
Part V
Part V states that nothing in the covenant may contradict provisions of the United Nations Charter or constitutions of specialized agencies involved with matters contained in the covenant (art. 46). On a broader level, nothing in the covenant may be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources (art. 47). That is, people are entitled to enjoy natural wealth and resources without interference from a state.
Part VI
The final part of the covenant contains procedural points, including who may sign the covenant and when the covenant becomes effective. According to its terms, the covenant became effective in 1976 after thirty-five states had approved it. The United States has approved this covenant but placed certain restrictions on carrying out its provisions.
Under the U.S. Constitution, after the president signs a covenant or treaty, the Senate (with a two-thirds vote of those present) must then ratify it (U.S. Constitution, art. 2). Although the U.S. Senate ratified the covenant, in doing so it placed five reservations on its enforcement. Those reservations modified the covenant in the following manner (Newman and Weisbrodt 1996):
The U.S. Senate
- Preserved the higher protection of free speech and association guaranteed by the U.S. Constitution.
- Ensured that the United States could continue to impose the death penalty as punishment for persons under the age of eighteen convicted of appropriate crimes.
- Limited the proscription against “cruel, inhuman, or degrading treatment or punishment” to definitions under the U.S. Constitution.
- Preserved the U.S. rule allowing the imposition of any higher penalty in force at the time the offense was committed.
- Preserved the right to treat juveniles as adults in exceptional circumstances.
The U.S. Supreme Court ruled in 2005 that juveniles (those under the age of eighteen) could not be subject to the death penalty, thereby making the second exception unconstitutional (Roper v. Simmons, 2005).
Even though the United States has ratified the covenant, it has never passed specific legislation to put the treaty into force. In other words, until the U.S. Congress passes a law that specifically puts the covenant into force, an individual cannot rely on it for legal support.
Optional Protocol to the International Covenant on
Civil and Political Rights
To create a forum for individuals alleging violations of human rights contained in the International Covenant on Civil and Political Rights, the United Nations drafted an additional instrument to give voice to individuals. That instrument is known as the Optional Protocol to the International Covenant on Civil and Political Rights. The Optional Protocol contains procedures under which an individual may submit a written communication to the Human Rights Committee. This communication should allege that a state has violated the individual’s human rights under the covenant (art. 1). The committee then will bring the complaint to the attention of the relevant state (art. 4, para.1). This protocol, however, is not binding on any state that has adopted the underlying covenant unless that state has specifically approved the protocol.
A second protocol in regard to the death penalty allows an individual to submit complaints alleging human rights violations concerning the death penalty.
The United States has neither signed nor ratified either protocol and is not subject to their provisions.
Social Work Perspective on the International
Covenant on Civil and Political Rights
Many provisions in the International Covenant on Civil and Political Rights directly relate to the ethical standards of social workers as stated in the NASW Code of Ethics and policy statements. The purpose of the covenant is to guarantee that everyone can voice opinions, preserve cultural backgrounds, carry out religious practices, and organize employment unions. The covenant also prohibits torture, slavery, cruel and degrading treatment, discrimination, and other violations of the person. Social workers can easily find common cause with these human rights.
The importance of recognizing that the social work profession is closely tied to human rights is in the additional strength that this connection gives to the profession. By tying particular injustices or circumstances to human rights, social workers can better advocate for clients and fulfill the primary mission of the profession. Promoting human rights attracts more attention than simply saying that social workers are fulfilling their ethical obligations.
The U.S. Criminal Justice System: A Bigger Role for Social Workers?
The United States holds the dubious honor of imprisoning more of its population than any other Western country. Sasha Abramsky, an observer of the U.S. criminal justice system, explains that the unique U.S. status of “incarceration central” began in the 1970s, by pandering to badly conceived policies that focused on punishment rather than rehabilitation (Polit 2007). This pandering has included very simplistic “three strikes and you’re out” laws that sound good in fifteen-second sound-bytes but that make lousy public policy.
Abramsky also believes that because the United States is at the zenith of its power, it tends not only to project itself onto the world but also to impose order on its own populace. This resembles former great powers like England in the late nineteenth century. Abramsky sees technology as adding to the liberal use of incarceration. That is, the state has the technology to eavesdrop, to control, and to regiment its prisoners so that the country is not creating more jobs simply for prison guards but also for an entire subset of the economy based on the technology of incarceration (Polit 2007).
To end the mass imprisonment supported by politicians who want to be tough on crime, Abramsky suggests that we invest in community mental health services. A large part of the current prison population consists of seriously mentally ill people who should not be in prison in the first place. He also proposes a more sensible dialogue about drugs, which would focus on treatment rather than imprisonment (Polit 2007).
Abramsky’s ideas about improving the criminal justice system and reducing the extraordinarily high rate of imprisonment would create a much bigger role for social workers within the criminal justice system. Because social workers already work as counselors in prisons and drug treatment programs, they would find themselves at the forefront of changing the U.S. justice system. This type of change would also be based on the human rights principles contained in the covenant on political and civil rights.
Questions
1. What does the International Bill of Human Rights mean? What documents does the bill include?
2. What is one of the biggest distinctions between a covenant and a declaration in terms of human rights documents?
3. Explain the term self-determination in the context of the International Covenant on Civil and Political Rights.
4. Explain the term self-determination in a social work context.
5. Do you believe that everyone is entitled to the same political and civil human rights?
6. Is it ever acceptable to torture a prisoner? Is there an exception to the use of torture under the International Covenant on Civil and Political Rights?
7. What is meant by the term equal protection? Why is this term important to social work?
8. Should the right to practice one’s religion or participate in cultural traditions be allowed without restriction? If not, what restrictions should be permitted?
9. Explain the status of the International Covenant on Civil and Political Rights in the United States. Can a U.S. court refer to that covenant as binding law? Why or why not?
10. Why is the International Covenant on Civil and Political Rights relevant to social work?
References
Chen. S. 2009. After prison, few places for sex offenders to live. Wall Street Journal, February 19, p. A16.
Deeken, B. 2009. Missouri should stop executions while it examines its death penalty system. St. Louis Post-Dispatch, February 3, p. B7.
The Economist. 1998. Human-rights law, December 15, pp. 4–16.
Foreign Policy. 2009. EUFOCUS: Advancing Human Rights Worldwide (May– June). Eufocus, pp. 1–8.
Grann, D. 2009. Trial by fire: Did Texas execute an innocent man? New Yorker, September 7, pp. 42–63.
Masters, B. 2002. Saved for “the Worst of the Worst.” The death penalty is reversed often in states that use it frequently, a review shows. Washington Post National Weekly Edition, February 18–24, p. 34.
NASW (National Association of Social Workers). 1996. Code of Ethics, as Revised. Washington, DC: NASW Press.
Newman, F., and D. Weisbrodt, eds. 1996. International Human Rights: Law, Policy, and Process. 2nd ed. Cincinnati: Anderson Publishing.
Page, C. 2009. Dialogue with Cuba must include human rights. Southern Illinoisan, April 16, p. 4A.
Pever, S. 1992. The Rights of Indians and Tribes: The Basic ACLU Guide to Indian and Tribal Rights. 2nd ed. Carbondale: Southern Illinois University Press.
Reamer, F. 1998. Ethical Standards in Social Work: A Critical Review of the NASW Code of Ethics. Washington, DC: NASW Press.
Roper v. Simmons. 2005. 543 U.S. 551.
Waller, M., and M. Yellow Bird. 2002. Strengths of First Nations Peoples. In The Strengths Perspective in Social Work Practice, ed. Dennis Saleebey, 51. 3rd ed. Boston: Allyn & Bacon.
Worcester v. Georgia, 31 US (6 Pet) 515 (1832).