Explanation of Position on a Third Committee Resolution on the Administration of Justice

Anthony Bestafka-Cruz
Adviser to the Third Committee
New York, New York
November 14, 2022


Thank you, Chair.

Reaffirming the importance of ensuring respect for the rule of law and human rights in the administration of justice, 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 with the text.

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 United States understands that General Assembly resolutions do not change the current state of conventional or customary international law.

Third, the resolution refers to “principles of necessity and proportionality” when depriving any person of their liberty. The United States understands and 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 UN 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.

Fifth, we are disappointed that important references to gender were removed or watered down in negotiations. The U.S. is committed to promoting gender equity and fairness in justice systems.

Finally, we note that the age of criminal responsibility varies in 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 to COVID language, language relating to the rights of the child, and with the applicability of international law, in a separate general statement.

Thank you, Chair.