U.S. Mission to the United Nations
New York, New York
November 16, 2023
SUBMITTED FOR THE RECORD
The United States thanks the Third Committee Bureau and our colleagues for their cooperation. We wish here to make important points of clarification on some of our key priorities for the Third Committee.
We underscore that UN General Assembly resolutions are non-binding documents that do not create rights or obligations under international law. The United States understands that General Assembly resolutions do not change the current state of conventional or customary international law. We do not read resolutions to imply that Member States must join or implement obligations under international instruments to which they are not a party. Any reaffirmation of such conventions or treaties, or obligations set forth therein, applies only to those States that are party to them.
We understand abbreviated references to certain human rights in these resolutions to be shorthand references for the more accurate and widely accepted terms used in the applicable treaties or the Universal Declaration of Human Rights, and we maintain our long-standing positions on those rights. We do not read references in resolutions to specific principles, such as proportionality, to imply that states have an obligation under international law to apply or act in accordance with those principles. We also reiterate our long-standing position that the International Covenant on Civil and Political Rights (ICCPR) applies only to individuals who are both within the territory of a State Party and subject to its jurisdiction. The United States strongly condemns harassment, gender-based violence, and other acts that can amount to human rights violations or abuses, but believes it is important for resolutions to accurately characterize these terms, consistent our international obligations and our understanding of these terms under U.S. law. Moreover, U.S. co-sponsorship of, or our joining consensus on, resolutions does not imply endorsement of the views of special rapporteurs or other special procedures mandate holders as to the contents or application of international law.
Specific Points of Clarification
Freedom of Expression: While the United States condemns the advocacy of national, racial, or religious hatred and other hateful ideologies, we do not do so at the expense of our strong support for freedom of opinion and expression. To the extent that a resolution refers to efforts to prevent, prohibit, or eliminate hateful ideas or speech, such efforts must be carried out in a manner that fully respects freedom of opinion and expression and is consistent with the requirements in Article 19 of the ICCPR.
References to Violence: The United States notes that certain resolutions inaccurately refer to a range of activities and concepts, including hate speech and racism, as “forms of violence.” We reiterate our long-standing concern with equating speech and ideas with violence, noting that, however odious they may be, ideas and hateful speech that do not rise to the level of a true threat or incitement to imminent violence are protected under the right to freedom of opinion and expression. Likewise, harassment and bullying, while condemnable, do not necessarily constitute violence.
2030 Agenda for Sustainable Development (2030 Agenda): The United States is fully committed to the achievement of the Sustainable Development Goals and implementation of the 2030 Agenda, which represents one of our best vehicles to expand economic opportunity, ensure respect for human rights, care for our planet, promote good governance, and ensure no one is left behind. We reaffirm that commitments to the UN Charter and the Universal Declaration of Human Rights are fundamental to our efforts to achieve sustainable development. Societies that that respect human rights, uphold the rule of law and access to justice, promote gender equality, tackle corruption, and support inclusive and accountable governance for all citizens are best equipped to deliver lasting development gains and a more peaceful, prosperous, and inclusive future for their citizens.
The United States also underscores that paragraph 18 of the 2030 Agenda calls for countries to implement the agenda in a manner that is consistent with the rights and obligations of States under international law. We also highlight our mutual recognition in paragraph 58 that 2030 Agenda implementation must respect, and be without prejudice to, the independent mandates of other institutions and processes, including negotiations, and does not prejudge or serve as precedent for decisions and actions underway in other fora. For example, the 2030 Agenda does not represent a commitment to provide new market access for goods or services. The 2030 Agenda also does not interpret or alter any World Trade Organization (WTO) agreement or decision, including with respect to the Agreement on Trade-Related Aspects of Intellectual Property Rights. Furthermore, citizen-responsive governance, including respect for human rights, sound economic policy and fiscal management, government transparency, and the rule of law are essential to the implementation of the 2030 Agenda. We understand references to “internationally agreed development goals” to refer to the 2030 Agenda.
Trade: The United States supports strong and growing trade relationships around the globe. We welcome efforts to bolster those relationships, increase economic cooperation, and advance prosperity for all people, within the appropriate institutions.
It is our view that the UN must respect the independent mandates of other processes and institutions, including trade negotiations, and must not comment on decisions and actions in other fora, including at the WTO. While the UN and WTO share some common interests, they have different roles, rules, and memberships.
The UN is not the appropriate venue for these discussions, and the United States does not consider recommendations made by the General Assembly or the Economic and Social Council on these issues to be binding. This includes calls to adopt approaches that may undermine incentives for innovation, such as technology transfer that is not both voluntary and on mutually agreed terms.
We underscore our position that trade language negotiated or adopted by the General Assembly or Economic and Social Council, or under their auspices, has no relevance to U.S. trade policy, for our trade obligations or commitments, or for the agenda at the WTO, including discussions or negotiations in that forum.
Technology Transfer: The United States firmly considers that strong protection of intellectual property and enforcement of intellectual property rights provide critical incentives needed to drive the innovation that will address the health, environmental, and development challenges of today and tomorrow. The United States understands that references to dissemination of technology and transfer of, or access to, technology are to voluntary technology transfer on mutually agreed terms and that all references to access to information and/or knowledge are to information or knowledge that is made available with the authorization of the legitimate holder. The United States underscores the importance of regulatory and legal environments that support innovation.
The “Right to Development”: We note that the “right to development” is not recognized in any of the core UN human rights conventions, does not have an agreed international meaning, and, unlike with human rights, is not recognized as a universal right held and enjoyed by individuals and which every individual may demand from his or her own government. Indeed, we continue to be concerned that the “right to development” identified within the text protects States instead of individuals.
Environment and Human Rights: The United States believes environmental protection is a means of supporting the well-being and dignity of people around the world and the enjoyment of all human rights. That said, a right to a clean, healthy, and sustainable environment, including the content of any such right, has not been established in international law, and the adoption of non-binding resolutions in multilateral fora does not change that fact. Moreover, such a right is not justiciable in U.S. courts.
Economic, Social, and Cultural Rights: As the International Covenant on Economic, Social, and Cultural Rights (ICESCR) provides, each State Party undertakes to take the steps set out in Article 2(1) “with a view to achieving progressively the full realization of the rights.” We note that countries have a wide array of policies and actions that may be appropriate in promoting the progressive realization of economic, social, and cultural rights. Therefore, we believe that these resolutions should not try to define the content of those rights. Furthermore, to the extent resolutions refer to the right or rights to water and sanitation we understand these references to refer to the right derived from economic, social, and cultural rights contained in the ICESCR. Similarly, we understand references to the right to housing or right to food, as recognized in the ICESCR, to refer to the rights as components of the right to an adequate standard of living. The United States is not a party to the ICESCR, and we note that obligations on States relating to economic, social, and cultural rights, as recognized in the ICESCR, exist only for State Parties thereto and that such references do not create obligations for States under other human rights treaties. While the United States supports policies to advance respect for economic, social, and cultural rights, both domestically and in our foreign policy, the rights contained in the ICESCR are not justiciable in U.S. courts.
Justice and Accountability: The United States strongly supports calls for justice and accountability for human rights violations and abuses. We understand language regarding the responsibility of States to investigate or prosecute those responsible for violations of international law and human rights abuses to refer only to those actions that constitute criminal violations under applicable law and understand references to State “obligations” to investigate or prosecute in light of applicable international obligations. We do not necessarily understand the characterization of certain acts or situations using international criminal law terms of art to mean that, as a matter of law, such terms are applicable to any specific act or situation.
Access to Justice and Legal Assistance: The United States strongly supports access to justice for all. However, the United States does not recognize an independent human right to access to justice or equal access to justice. There is no such right recognized in any of the core UN human rights conventions, and the United States does not believe such language to have an agreed international meaning. The United States likewise disagrees with language suggesting that such a purported right entitles individuals to legal assistance at all stages of proceedings, regardless of circumstances. The United States acknowledges that access to justice and access to legal assistance are critical to the enjoyment of many human rights and fundamental freedoms. We note, however, that Articles 14 and 26 of the ICCPR recognize specific rights related to this, including the right of all persons to be equal before the law and to the equal protection of the law, as well as rights related to legal representation. The United States therefore understands references to such a purported right to access to justice, including as it relates to legal assistance, as referring to the rights recognized in Articles 14 and 26 of the ICCPR.
Right to Education: The United States strongly supports the realization of the right to education. As educational matters in the United States are primarily determined at the state and local levels, we understand that when resolutions attempt to define, direct, or prescribe various aspects of education, or call on States to strengthen, ensure or address them, including curricula, quality, programs, or policies, this is done in terms consistent with our respective federal, state, and local authorities.
International Humanitarian Law: The United States is deeply committed to promoting respect for international humanitarian law (IHL) and the protection of civilians in armed conflict. We note that IHL and international human rights law are in many respects complementary and mutually reinforcing. However, we understand that, with respect to references in resolutions to both bodies of law in situations of armed conflict, such references refer to those bodies of law only to the extent that each is applicable. IHL is the lex specialis during situations of armed conflict and, as such, is the controlling body of law with regard to the conduct of hostilities. We do not necessarily understand references to conflict, IHL, or IHL terms of art in these resolutions to mean that, as a matter of law, an armed conflict exists in a particular country, that such terms are applicable to any specific act or situation, or that a particular legal determination has been made. The United States also does not understand any reference to IHL in these resolutions to supplant States’ existing obligations under IHL.
Legal Obligations of an Occupying Power: The law governing belligerent occupation, including as reflected in the 1949 Geneva Convention Relative to the Protection of Civilians in Time of
War, imposes important obligations on Occupying Powers to provide for the interests and welfare of the civilian population. The United States does not understand the resolution on the situation of human rights in the temporarily controlled or occupied territories of Ukraine as changing the law of belligerent occupation. We also understand that the use of the term “temporarily controlled or occupied territories” to describe areas of Ukraine is not meant to denote a legal determination as to whether the area is occupied.
Humanitarian Access: The United States fully supports the provision of live-saving humanitarian assistance to those in need, consistent with the humanitarian principles of humanity, neutrality, impartiality, and independence. However, we note that there is not a general, binding obligation under international law for States to provide humanitarian access. Likewise, there is no international obligation that requires the completely unrestricted delivery of humanitarian or other assistance at all times. We further note that the humanitarian principles do not constitute binding obligations under international law.
International Refugee Law: The United States strongly supports and advocates for the protection of refugees and other displaced persons around the world, and we urge all States to respect the principle of non-refoulement, while also supporting safe, dignified, and sustainable repatriation or return of migrants who are ineligible to remain. In underscoring our support for this principle, we wish to clarify that U.S. international obligations with respect to non-refoulement are the provisions contained in Article 33 of the 1951 Convention relating to the Status of Refugees (applicable to the United States by its incorporation in the 1967 Protocol relating to the Status of Refugees) and in Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. We note that we understand references to international refugee law in certain resolutions to refer to the obligations of States under the relevant treaties to which they are party.
Global Compact for Safe, Orderly, and Regular Migration: The United States is committed to promoting safe, orderly, and humane migration and to strengthening access to international protection for displaced populations. While the United States did not vote to adopt the Global Compact for Migration (GCM) in 2018, in December 2021, we issued a Revised National Statement endorsing the vision of the GCM, reflecting certain clarifications and limitations, as consistent with our commitment to working with countries to enhance cooperation to manage migration. That statement remains our position on this instrument. To the extent that certain resolutions may reaffirm the GCM, we understand such reaffirmation to be only to the extent set forth in our Revised National Statement.
Right to a Nationality: The United States fully supports the right to a nationality as articulated in Article 15 of the Universal Declaration of Human Rights. We understand references to the “right to a nationality” as referring to the right included the Universal Declaration of Human Rights, which is not legally binding on States. We emphasize that resolutions do not modify States’ obligations related to the reduction of statelessness, which are defined in applicable human rights treaties to which they are party.
Rights and Obligations Related to Travel: The United States interprets references to the “right to return” or the right to return to one’s own country, as well as references to the right to freedom of movement and residence, as referring to the rights included in Article 13 of the Universal Declaration of Human Rights and Article 12 of the International Covenant on Civil and Political Rights. Furthermore, the United States interprets the purported obligation of States to readmit their own nationals as referring to the obligation in Article 12(4) of the International Covenant on Civil and Political Rights to refrain from arbitrarily depriving persons of the right to enter their own country.
Rights of Indigenous Peoples: The United States reaffirms its support for the UN Declaration on the Rights of Indigenous Peoples. As explained in our 2010 Statement of Support, the Declaration is an aspirational document of moral and political force and is not legally binding or a statement of current international law. The Declaration expresses the aspirations that the United States seeks to achieve within the structure of the U.S. Constitution, laws, and international obligations, while also seeking, where appropriate, to improve our laws and policies. As also detailed in our 2010 Statement of Support, the United States reaffirms that human rights belong to individuals, including Indigenous Persons, and that Indigenous Peoples have certain additional collective rights. The United States reads the provisions of the Declaration and resolutions in this session in light of this understanding of human rights and collective rights.
Sanctions: The United States does not accept that sanctions amount to violations of human rights and firmly rejects the use of the term “unilateral coercive measures.” Economic sanctions are a legitimate, important, appropriate, and effective tool for responding to harmful activity and addressing threats to peace and security. The United States is not alone in that view or in that practice. In cases where the United States has applied sanctions, we have done so consistent with international law and with specific objectives in mind, including as a means to promote a return to rule of law or democratic systems, to promote respect for human rights and fundamental freedoms, or to respond to threats to international peace and security.
Rights of the Child: The United States does not understand references to the rights of the child or principles derived from the Convention on the Rights of the Child, including the principle that the best interests of the child should be a primary consideration in all actions concerning children, as implying that the United States has obligations in that regard. We also understand references to recruitment or use of children as referring to the recruitment or use of children in violation of international law, including, where applicable, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.
Child Labor: The United States notes that work performed by persons under the age of 18 is legal in the United States, with minimum age requirements and certain restrictions depending on the work in which the individual is engaging, as well as in many other countries. The United States strongly supports the elimination of the worst forms of child labor, as that term is defined by Article 3 of the Worst Forms of Child Labour Convention, but notes that not all work done by persons under the age of 18 should be classified as child labor that is to be targeted for elimination.
Equal Pay: The United States strongly supports the right to equal pay for equal work, as that right is articulated in Article 23 of the Universal Declaration of Human Rights, as a means to eradicate discrimination in employment and occupation and to realize women’s right to work. The United States’ understanding of that right is that it requires equal pay (including salary and other pecuniary and non-pecuniary benefits) for work that requires substantially equal skill, effort, and responsibility under similar working conditions within the same establishment. The United States does not interpret such right, however, to require equal pay for work of equal value.
Quotas/Temporary Special Measures for Women and Girls: With respect to quotas, affirmative action measures, temporary special measures, and other measures intended to achieve parity for women and girls, the U.S. position is that each country must determine for itself whether such measures are appropriate. We do not believe it is a useful exercise to urge the use of quotas and rigid numerical targets, particularly in the context of political representation and government employment, without consideration for domestic anti-discrimination legal frameworks and obligations under international law to ensure every citizen has an equal right and opportunities, without discrimination, to take part in the conduct of public affairs. The best way to improve the situation of women and girls is through legal and policy reforms that end discrimination and promote and provide equal access to opportunities.
Enjoyment of Human Rights: The United States notes that States cannot “ensure” the enjoyment of human rights by individuals because non-state actors, or other factors beyond State control, can impact their enjoyment as well.
References to Human Rights “Violations” in Connection with Non-State Actors: The United States notes that generally only States have obligations under international human rights law and, therefore, the capacity to commit violations of human rights. References in resolutions to human rights “obligations” in connection with non-State actors or “violations” of human rights by such actors should not be understood to imply recognition by the United States or any other State that such actors constitute a government or bear obligations under the international human rights treaties to which the State is a party. Nevertheless, the United States remains committed to promoting accountability for human rights abuses by non-state actors.
Human Rights-Based Approach: There is no internationally agreed upon understanding of the term “human rights-based approach.” To the extent the term is used in resolutions, the United States reiterates that such uses do not create obligations under international human rights law or other international commitments, including with respect to particular actions States may take in fulfilling their obligations.
Privacy: Given differences in views as to the meaning and scope of privacy as a human right under international law, the United States does not support use of the term “right to privacy” unless it is directly tied to the language in Article 12 of the Universal Declaration of Human
Rights or Article 17 of the ICCPR. To the extent this term is used in resolutions that we support, we read it as specifically referencing the right not to be subjected to arbitrary or unlawful interference with one’s privacy as set forth in Article 17 of the ICCPR. We further note our understanding that expressions of concern regarding interference with anonymity and encryption tools specifically refer to situations where such interference is arbitrary or unlawful.
Torture: The United States understands that the definition of torture, to the extent this term is used in resolutions that we support, is the same as that in the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and, therefore, is consistent with the United States’ interpretations of its legal obligations under that instrument and does not expand them under international law. Hence, references to “torture” do not include the imposition of the death penalty or lawful means to do so. Likewise, we do not consider interrogation methods that are legal under U.S. law to be prohibited “intimidation,” “ill-treatment,” or “coercion,” such that they would be addressed in any work to elaborate standards for non-coercive interviews by law enforcement. Finally, we read language referring to investigation, redress, and rehabilitation in relation to torture as being consistent with U.S. law regarding government obligations to provide post-arrest or -detention accommodations, investigate credible allegations of torture, to provide opportunities for victims of torture to seek relief or redress, and to provide rehabilitation services for victims of torture or the availability of such redress or services in U.S. courts.
Use of Force: The United States fully supports the use of less-than-lethal devices when appropriate, and we have federal programs in place to encourage their use under appropriate circumstances. Many subnational law enforcement agencies also employ them. However, we cannot agree that the use of less-than-lethal devices may decrease the need to use any kind of weapon in all circumstances. In some situations, the use of less-than-lethal devices can increase the risk of injury or death to law enforcement officers. We support a balanced approach that recognizes that situations are fact specific and that some situations may not be appropriate for less-than-lethal devices. The use of force by law enforcement officers in peacetime in the United States is governed by the “objective reasonableness” standard set forth by the U.S. Supreme Court. Additionally, we note that use of the terms “conform” and “to ensure” suggest, incorrectly, that Member States have undertaken obligations to apply the Mandela Rules, the Code of Conduct for Law Enforcement Officials, and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which are non-binding.
Finally, it is our intention that this statement applies to action on all agenda items in the Third Committee. We request that this statement be made part of the official record of the meeting. Thank you, Chairperson.