IACHR Holds Hearing on U.S. Executive Orders, U.S. Fails to Appear
On March 21st, the International Justice Resource Center (IJRC) was among the civil society organizations that appeared before the Inter-American Commission on Human Rights (IACHR) in Washington, D.C. to address the “travel ban” and two other United States executive orders in a hearing held at the IACHR’s own initiative. In a remarkable departure from recent administrations’ engagement with the region’s human rights monitoring body, the U.S. failed to participate in the hearing.
Last month, in a joint letter submitted by IJRC and the American Civil Liberties Union (ACLU), several dozen organizations urged the IACHR to examine alleged human rights violations resulting from U.S. President Trump’s executive order restricting the travel of individuals from seven Muslim-majority countries and the resettlement of refugees. The IACHR called for an expanded hearing to also include two other executive orders, one concerning the construction of a wall along the U.S. border with Mexico and for increased immigration detention and enforcement, and another that expedites environmental assessments of infrastructure projects such as oil pipelines.
The organizations presented specific requests that the IACHR could pursue to monitor the human rights situation, including conducting on-site visits to relevant areas, issuing press releases, and following up on the implementation of its prior recommendations to the United States, among others.
The webcast of the hearing is available on the Commission’s YouTube channel and on IJRC’s website, which also has additional information on the hearing, including civil society submissions to the IACHR.
The State’s Failure to Participate
At the three hearings concerning the U.S. convened by the IACHR at its 161st session this week, the United States government failed to send a representative to participate. IACHR staff members informed IJRC that the government had telephoned on March 20th to inform the Commission that it would not be appearing on the 21st. Following the hearings, the U.S. State Department issued a statement indicating that it supports the IACHR but had determined it was inappropriate for the government to participate in these specific hearings because they raised issues currently being litigated in domestic courts. [Reuters]
While two of the hearings did involve questions that are the subject of ongoing litigation in the U.S., previous administrations have not invoked this reasoning and have participated in hearings on contentious issues such as the prisoners at Guantanamo Bay and racial discrimination in the criminal justice system. According to experts, it has been at least two decades since the U.S. failed to send a representative to participate in an IACHR session. [Huffington Post; Human Rights At Home Blog; Just Security]
Commissioners Macaulay, Eguiguren, and Vannuchi noted the government’s absence during the hearings and expressed their regret at this change in engagement. Commissioner Macaulay said it was “a pity” that the U.S. was not present to inform the Commission and respond to questions. In its press release summarizing the 161st session, the IACHR noted with regret the absence of the United States, Cuba, and Nicaragua at its hearings. [IACHR Press Release]
Importantly, however, the State Department spokesperson said that the failure to participate in this session “does not have any bearing on current or future U.S. engagement with the Commission.” Nonetheless, civil society members remain concerned in view of the Trump administration’s interest in curtailing participation in, and reducing funding for, intergovernmental and human rights bodies. [HRW; ABC]
Civil Society’s Requests and Participation in the Hearing
Representatives of the International Justice Resource Center (IJRC), American Civil Liberties Union (ACLU), American-Arab Anti-Discrimination Committee, Harvard Immigration and Refugee Clinical Program, Hope Border Institute, International Indian Treaty Council, and the International Human Rights Clinic at the University of Washington were collectively given 20 minutes to explain the impact of three executive orders on the human rights situation in the United States: “Border Security and Immigration Enforcements Improvements”; “Protecting the Nation from Foreign Terrorist entry into the United States”; and “Expediting Environmental Reviews and Approval for High Priority Infrastructure Projects.” The additional 20 minutes that would have been reserved for representatives of the United States government was instead absorbed into a lengthier question and answer dialogue between Commissioners of the IACHR and the civil society representatives.
Human Rights Implicated in the Executive Orders
For civil society organizations participating in the hearing, the predominant task was to provide information and evidence to the IACHR related to the impact of the executive orders on human rights in the United States. Organizations submitted written materials and spoke to the possibility of human rights violations in the context of the implementation of the executive orders.
The organizations divided their presentations between the three executive orders at issue. Regarding the travel ban, Abed Ayoub, representing the American-Arab Anti-Discrimination Committee, identified several possible human rights violations, including, enabling arbitrary detention, pursuing discriminatory practices, and failing to provide a safe haven for refugees.
Regarding immigration and border security enforcement, Jin Kim and Malene Alleyne, representing the Harvard Immigration and Refugee Clinic, reported increased border crossings from the United States into Canada, and identified possible human rights abuses, including, a lack of meaningful access to asylum protections; violations of the principle of non-refoulement through increased expedited removals; and violations of due process and personal liberty. Additionally, Jennifer Johnson, representing Southern Border Communities Coalition and Hope Border Institute, referenced broad civil and human rights implications resulting from the militarization of the U.S.-Mexico Border. Moru Mora Villalpando, speaking at the request of the International Human Rights Clinic at the University of Washington, underscored concerns emanating from the expansion of the for-profit model of detention centers implicated in the executive order, including, violations to humane treatment and the right to dignity. Further, Sarah Mehta, representing the ACLU, emphasized problems of the immigration enforcement expansion program, eluded to possible violations of the right of asylum seekers to seek asylum in the United States, discussed the right of entry, and addressed potential violations of personal liberty and due process for asylum seekers.
Finally, regarding the order on expedited environmental review for major infrastructure projects, Roberto Borrero representing the International Indian Treaty Council, identified alleged human rights violations, including, rights related to the free, prior, and informed consent of affected Indigenous persons in connection with development projects affecting their land and water; the preservation of sacred sites and religious practices; self-determination; and due process.
Request for IACHR Action
Lisa Reinsberg, of IJRC, presented a list of concrete recommendations to the IACHR. The recommendations, detailed in a joint written submission, include encouraging the U.S. to rescind the executive orders and their guidance; issuing timely press releases; carrying out on-site visits to the United States, to the Mexican and Canadian borders with the United States, and to Standing Rock Sioux Reservation; coordinating with relevant United Nations mechanisms; including the topic of U.S. immigration and refugee admissions in upcoming sessions; reviewing implementation of prior recommendations in cases pertaining to the rights of migrants in the United States, Indigenous persons and the environment in the United States, and in related thematic and country reports on the United States; monitoring environmental and cultural impact reviews and issues of consent for major infrastructure projects in the United States; and communicating with civil society organizations to request additional information related to human rights implications in this context, among others.
Additionally, the representatives suggested that shorter-term, more immediate, efforts such as those described above, would be preferred over the publication of a lengthy report on this topic.
The Inter-American Commission’s Response
After members of civil society had presented their positions, representatives of the IACHR asked questions and made brief comments. Commissioner Macaulay acknowledged her concern for the human rights situation of migrants in the United States. She emphasized the important role of civil society to keep the IACHR informed and to put pressure on the IACHR to continue to respond to human rights situations in a timely manner. Specifically, Commissioner Macaulay voiced her desire to make on-site visits to detention centers and other relevant locations within the United States. The Special Rapporteur for the Freedom of Expression, Edison Lanza, expressed his willingness to work with the members of civil society to protect the rights of those engaging in social protests in the United States and to receive more information related to reprisals against human rights defenders in the country.
Commissioner Paulo Vannuchi and Assistant Executive Secretary Elizabeth Abi-Mershed posed questions to the representatives at the hearing, including what the United States legislature and judiciary could do to protect human rights in the country and why civil society finds the revised executive order related to the travel ban to be discriminatory, for example, through targeting or disparate impact analyses.
The IACHR concluded the hearing by reaffirming its need for civil society to submit additional information and updates pertaining to the executive orders and human rights in the United States.
IACHR Monitoring of Human Rights in the U.S.
The IACHR is an independent, regional human rights body that is tasked with monitoring and ensuring the implementation of human rights within the 35 countries, including the United States, of the Organization of American States. As a part of its functions, the IACHR may hold hearings on issues related to human rights in the Americas.
The IACHR has consistently engaged with the United States and civil society representatives to examine alleged human rights abuses in the country, including, for example, through past hearings held on the human rights of indigenous persons in the context of extractive industries in 2016, the human rights of asylum seekers in 2016, criminal justice and race in 2015, excessive force by the police against people of African descent in 2015, and the human rights of persons deprived of liberty in 2014.
A recording of the hearing is available on the IACHR’s YouTube channel.
For more information on the hearing and to view background documentation and civil society’s written submissions to the IACHR, visit IJRC’s website.