As we’ve been pointing out for years, the right to travel is not just a right under the First Amendment to the US Constitution (“the right of the people… peaceably to assemble”) but a human right guaranteed by an international treaty ratified by the US (“the right to freedom of movement”).
But what good is a “human right” guaranteed by international treaty if there is no independent entity to which you can complain, and which has the authority to enforce your rights?
At a minimum, what’s needed is the ability of people whose human rights have been violated by the US government to seek redress through US courts, and the ability of those courts to order the government to comply with its treaty obligations.
Given the US government’s current interpretation of many human rights treaties as not being “self-effectuating”, that would require legislation by Congress to effectuate those treaties by creating a cause of action for treaty violations and give US courts jurisdiction to hear such complaints.
That’s exactly what the UN Human Rights Committee concluded a year ago, following its periodic review of US implementation of the International Covenant on Civil and Political Rights (ICCPR):
The State party [i.e. the US] should … Taking into account its declaration that provisions of the Covenant are non-self-executing, ensure that effective remedies are available for violations of the Covenant, including those that do not, at the same time, constitute violations of U.S. domestic law, and undertake a review of such areas with a view to proposing to the Congress implementing legislation to fill any legislative gaps.
In the year since this recommendation from the UNHRC, neither the Administration nor any member of Congress has proposed such effectuating legislation for the ICCPR or any other human rights treaty.
So in the meantime, where can you turn if your human rights are violated by the US government?
In 1998, President Clinton issued Executive Order 13107, directing each Cabinet-level Federal executive Department to designate a “single point of contact” responsible for ensuring that all complaints of human rights treaty violations received by that Department are responded to, and that all “matters as to which there have been non-trivial complaints” of human rights treaty violations are included in an annual inter-departmental review.
EO 13017 had no expiration date, has never been rescinded, and remains in full force and effect. As an explicit direct written order from the President, it is just as binding on Cabinet members responsible for designating these points of contact for complaints as an order from the President, in his or her capacity as Commander in Chief, is to members of the military.
Most commentators had assumed that EO 13107 was a dead letter. We took it at face value, however, and tried to get Federal agencies to fulfill their duty to establish points of contact and respond to complaints.
When our complaints were ignored, or we couldn’t figure out to whom to submit them, we made formal requests under the Freedom of Information Act for records of who — if anyone — has been designated as the “single point of contact” in the respective Departments for these complaints.
We were thus the first to discover that the Department of Homeland Security had (secretly) made such a designation. We were also the first to discover that no other Department to which we have made inquiries has any record of making the required designation of a point of contact for complaints. Not, for example, the Department of Transportation (responsible under Federal law for ensuring the “public right of transit” by air). And not the Department of Justice or its division responsible for prosecuting human rights violators. After almost three years, the Department of State hasn’t responded to our complaints and is still searching for records responsive to our FOIA request, but hasn’t released any responsive records yet. They’ve told us not to expect a final response for another year.
Responses to complaints by staff of the same agencies that are the subjects of the complaints — i.e. the human rights violators themselves, or people who answer to the same bosses — are no substitute for judicial review of administrative actions. But publicly designating points of contact for complaints would at least create the possibility of documenting the number and nature of human rights complaints against the US government.
To this end, we have recently joined a diverse coalition of human rights and civil liberties organizations as co-signers of joint letters sent to the heads of the Department of Justice, Department of Defense, FBI, NSA, and several other agencies, calling on them to fulfill their duty, pursuant to EO 13107, to designate points of contact for complaints of human rights violations by their Departments or agencies.
We continue to believe that, as the UNHRC has recommended, Congress needs to act to effectuate these human rights treaties. But in the interim, this is a small step toward getting Federal agencies to acknowledge their human rights treaty obligations and to document and respond to complaints.