Explanation of Position on a Resolution on Administration of Justice

Mordica Simpson
Advisor for Economic and Social Affairs
U.S. Mission to the United Nations
New York, New York
November 19, 2020


Reaffirming the importance of ensuring respect for the rule of law and human rights in the administration of justice, and thanking Austria for its expert facilitation of the negotiations, the United States joins consensus on this year’s resolution. While we appreciate efforts to address our concerns, we wish to highlight a few important issues.

First, we are concerned that the resolution calls upon States to comply with or implement obligations under treaties to which the United States is not subject, and which are not imposed by customary international law, including the Convention on the Rights of Persons with Disabilities and the Convention on the Rights of the Child. We also note that we do not accept certain recommendations made in the Global Study on Children Deprived of Liberty.

Second, the resolution uses the terms “overincarceration” and “overcrowding” in the context of detention facilities, but does not define those terms. The United States cannot endorse this broad, vague language, and must dissociate from its use in OP13, OP19, OP20, OP23 and OP41.

Third, the resolution refers to “principles of necessity and proportionality” when depriving any person of his or her liberty. The United States agrees that discretionary decisions to deprive individuals of liberty should be reasonable, necessary, and appropriate to the individual circumstances. However, such considerations are not universally recognized or reflected in international law, nor are they relevant to a determination of lawfulness or arbitrariness within the domestic legal framework of every State; instead, international law has left such matters to the discretion of competent courts or administrative authorities within individual States. We interpret the provisions referring to “necessity and proportionality” as recommendations rather than as a reflection of international principles or obligations under international law.

Fourth, the assertion that States should consider establishing an independent mechanism to monitor places of detention, including by making unannounced visits, is inconsistent with U.S. policies and practices that already ensure acceptable standards. The United Nations Standard Minimum Rules for the Treatment of Prisoners, or “the Mandela Rules,” call for external and independent monitoring of prisons to include monitoring bodies that may or may not be governmental, the preferred approach in the United States. These bodies achieve accountability so long as they are independent of the prison administration, and other external bureaucracies are unnecessary.

Finally, we note that the age of criminal responsibility varies in the individual states of the United States, and that some states establish responsibility at younger ages for the most serious crimes.

We addressed U.S. concerns with rights-related COVID language, and with the applicability of international law, in a separate general statement.

Thank you, Chairperson.