This article has been written by Oishika Banerji of Amity Law School, Kolkata. It discusses the concept of human rights with respect to the United States of America, while also highlighting the present scenario.
It has been published by Rachit Garg.
It is an accepted fact that every individual deserves to be vested with a set of basic legal rights, regardless of their gender, color, nationality, ethnicity, language, religion, or any other distinction. Human rights cover a wide range of rights, such as the freedom from slavery and torture, the right to life and liberty, freedom of speech, and the right to a job and education, among many more. Therefore, human rights apply to everyone without exception. A cornerstone of the United States’ founding almost 200 years ago was the defense of basic human rights. Since that time, the promotion of respect for human rights, as outlined in the Universal Declaration of Human Rights (UDHR), 1948, has been a key objective of American foreign policy.
Supporting democracy helps to build a safer, more stable, and more affluent global environment where the United States may advance its national interests in addition to advancing such core American principles, such as worker rights and freedom of religion. The only national interest that contributes to the protection of all others is democracy. The United States employs a wide range of instruments to further its goal of freedom, including economic sanctions, multilateral participation, help abroad, reporting, and public outreach. To assist people in pursuing freedom, the United States Department of State collaborates with democratic allies, global and regional organizations, nonprofit groups, and involved citizens. This article discusses the concept of human rights with the United States as its backdrop, backed by recent scenarios with respect to human rights as well.
What are human rights
Human rights are privileges that we enjoy merely by the virtue of being human; no state has the authority to bestow them. No matter our nationality, sex, ethnicity, race, color, religion, nationality, or any other status, we are all endowed with these universal rights. The most fundamental of them is the right to life, followed by those that make life worthwhile, including the rights to food, education, employment, health, and liberty.
The first legal declaration to outline the essential human rights that should be universally protected was the UDHR, adopted by the UN General Assembly in 1948. Every international human rights law is based on the essence of the UDHR. Its 30 Articles serve as the foundation for all upcoming and existing human rights conventions, treaties, and other legal documents. The International Bill of Rights is made up of the UDHR as well as the other two treaties namely, the International Covenant for Civil and Political Rights (ICCPR) and the International Covenant for Economic, Social, and Cultural Rights (ICESCR).
Some of the possible fundamental characteristics of human rights have been listed below.
Universal and inalienable
International human rights law is built on the tenet of the universality of human rights. This implies that human rights belong to all equally. This principle is reiterated in numerous international human rights agreements, declarations, and resolutions after being initially highlighted in the UDHR. Human rights cannot be taken away by any external or internal forces. They shouldn’t be scrapped unless certain conditions are met and the proper process has been followed. For instance, if a person is found guilty of a crime by a court of law, their right to liberty may be limited.
Indivisible and interdependent
All human rights are interconnected and indivisible. This implies that without the other, one set of rights cannot be completely exercised. Progress in civil and political rights, for example, facilitates the practice of economic, social, and cultural rights, similar to how breaching economic, social, and cultural rights can harm many other rights.
Equal and non-discriminatory
All humans are born free and equal in rights, according to Article 1 of the UDHR. Article 2 prohibits discrimination and serves as the foundation for this equality. All international human rights law is based on the principle of non-discrimination. All significant international human rights treaties also include this principle. The International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) both include this as their fundamental focal point.
Both rights and obligations
At least 1 of the 9 fundamental human rights treaties and 1 of the 9 supplementary protocols have been ratified by every state. At least 4 have been ratified by 80% of states. This indicates that in accordance with international law, states are obligated to respect, defend, and uphold human rights.
- States are required to respect human rights by abstaining from interfering with or restricting the exercise of those rights.
- States are under the duty to protect persons and groups from violations of human rights.
- States are required to act in a way that makes it feasible for people to enjoy their fundamental human rights under the commitment to fulfill them.
Relevance of human rights in the United States
Human rights in the United States are a collection of rights that are enshrined in the US Constitution, specifically in the Bill of Rights. Through a ratified Constitution, the federal government has promised unalienable rights to its people, including, to some extent, non-citizens. These rights have been developed over time through judicial precedents, legislation, and constitutional changes. Along with the mere existence of these rights, it is necessary to note that they have become more widely available over time. International human rights legislation is subject to the jurisdiction of federal courts within the United States as well.
The foundation of social justice is the upholding of human rights. The UDHR, 1948 prompted an ongoing discussion on whether or not governments have a duty to ensure citizens’ well-being by defending their social, economic, and political rights. Although political rights received quick acceptance, social and economic rights have trailed behind. The realization of social and economic rights (i.e., the right to work, health, income, housing, education, and employment) is seen by many Americans as being in opposition to the functioning of the market economy. Some people view social and economic rights as unattainable ideals. But the senior leaders of the nation have constantly pushed for an agenda of human rights, including social and economic rights, since the 1930s, if not earlier. Despite such powerful backing, those who prioritized business above people and/or compromised with racism affected the historical struggle to uphold human rights.
The fundamentals of American foreign policy are advancing democracy, freedom, and the protection of human rights throughout the world. The principles upon which the United States was established more than two centuries ago are consistent with those enshrined in the UDHR and other international and regional conventions. The US stands with those who aspire to live in freedom and with democratic governments that uphold fundamental human rights. Democratically run countries are more likely to maintain peace, thwart aggression, widen open markets, encourage economic growth, safeguard American citizens, combat international terrorism and crime, uphold human and worker rights, avert humanitarian crises and refugee flows, improve the environment globally, and safeguard public health.
Human rights are always a confluence of humanitarian concerns and strategic aims in US foreign policy. In other words, the United States seeks a mix of material strategic interests (promotion of human rights) and normative goals (preserving national security and strengthening economic relations). Initially, the US endeavored to ensure the factors of morality, the defense of individual rights, and the development of democracy when determining its foreign policy. After World War II, these initiatives gained more traction, and in the years following the Cold War, US foreign policy began to emphasize humanitarianism and overseas aid as crucial tools in avoiding civil wars and terrorist attacks. After the September 11 attacks, the George W. Bush administration and the US Congress revised their stances on the US’s place in the world and on promoting, defending, and preserving human rights.
The Bureau of Democracy, Human Rights, and Labor (DRL)
Respect for the rule of law, democratic institutions, and human rights are among the universal principles promoted by the Bureau of Democracy, Human Rights, and Labor (DRL). The DLR was established in 1977 to support the global advancement of personal freedoms and democratic liberties. It speaks to the essential liberties outlined in the United States’ founding documents, as well as the supplementary articles of the UDHR, and other international and regional agreements. To fight terrorism, the rise of authoritarianism and advance a free, peaceful, and prosperous world for the benefit of the American people, the United States supports the aspirations of individuals who yearn to live in freedom and under democratic governments.
The Bureau’s work promotes accountability, upholds internationally recognized labor standards, and advances the rights and equity of members of marginalized racial, ethnic, and religious communities, indigenous peoples, people with disabilities, and LGBTQI+ people. It also works to strengthen democratic institutions and confront democratic backsliding, and the democratic upswing.
The DLR employs a variety of strategies to enhance freedom and democracy, including economic sanctions, multilateral involvement, assistance abroad, reporting, and public outreach. In order to support individuals seeking freedom, the United States collaborates with democratic allies, global and regional organizations, non-governmental organizations, and active citizens.
Current scenario of human rights in the United States
In terms of human rights, the United States has typically received high to fair ratings. For instance, the United States is ranked 1st for human freedom in terms of civil and political rights according to the Freedom in the World ranking, which is based in the United States, with 83 out of 100 points as of 2021.
With a score of 72.74 out of 100 in the Press Freedom Index issued by Reporters Without Borders as of 2022, the United States is ranked 42nd out of 180 nations, with lower numbers signifying less press freedom. With a score of 7.85 out of 10, the United States was classified as a “flawed democracy” in the Economist Intelligence Unit’s Democracy Index, placing it as the 26th most democratic nation in the world as of 2021. According to the Human Rights Measurement Initiative, when compared to other high-income nations, the United States performs worse than average in terms of quality of life, safety from the state, and empowerment rights.
Despite receiving fair to high ranks in human rights assessments, the United States faces severe domestic and international criticism for its track record in this area. The existence of systemic racism, weaker labor protections than most western nations, debtors’ prisons, the criminalization of homelessness and poverty, invasions of citizens’ privacy through massive surveillance programs, police brutality, police impunity, and corruption, the incarceration of citizens for profit, the mistreatment of prisoners, the highest concentration of juveniles in any country’s prison system, and some of the longest prison sentences, are all targets of criticism.
Human rights situation in US foreign policy
Human rights have been called “the central preoccupation” of American foreign policy, according to Jimmy Carter. In addition, regardless of whether the nations they were dealing with were democratic or not, adversaries or allies, all US presidents used human rights issues sparingly and in accordance with American interests abroad. American leaders have used foreign aid to address security and humanitarian challenges in order to further the foreign policy objectives. Foreign aid has been utilized in an effort to combat communism, help its allies militarily and economically, encourage and boost economic development, safeguard economic and geopolitical interests, support democratic governments, advance human rights, and finally combat terrorism.
In essence, the contrast between the two objectives might be compared to that between liberalism and realism in US foreign policy. Strengthening economic linkages, sustaining national security, and enhancing material welfare is frequently absent from the advancement of human rights.
Realists in foreign policy hold that morality should support and be consistent with advancing national interest in a nation’s foreign policy; in addition, morality and national interest should be linked. The work of Henry Kissinger (1994), who argued that US foreign policy must foster stability and that the logic of power balance causes countries to seek materialistic objectives and prefer them to morals, is the clearest example of this point of view. On the other hand, liberalism (from a liberal perspective) views the advancement of human rights norms as a crucial component of a foreign policy that would guarantee national security and advance economic growth at home. When examining US foreign policy, it is evident that the nation pursues two different sorts of human rights agendas.
Historical overview of the relevance of human rights in US’s foreign policy
The history of the United States’ involvement with human rights is lengthy and convoluted. On the one hand, it has been important to the discipline ever since the post-World War II human rights legal framework was established. However, the US frequently argues that it is immune from the same rules that it consistently imposes on other countries. Because of this legacy of exceptionalism, many Americans mistakenly believe that the country’s significant problems, such as mass incarceration, inadequate healthcare, or abuse of immigrants, are tied to internal legal or policy issues rather than to international human rights. However, certain supporters rooted in the United States have always believed that the fight for universal rights is mirrored in their quest for social justice. In the past few decades, the US human rights movement has gained power and momentum.
- The late 18th century served as the historical foundation for the contemporary concern for human rights in the United States. Two key ideas that are rooted in American national experience are frequently mentioned in this country:
- The right to self-government,
- The right to religious freedom.
The Declaration of Independence and other important original texts, such as the US Constitution, represent this perspective. The right to life, freedom, and the preservation of property are all guaranteed by the Constitution of the United States, along with the freedom of religion, expression, the press, and communication. As a result, it is feasible to assert that the United States’ approach to dealing with human rights issues has historical roots.
- The Committee requested that members of international organizations convene a series of meetings in 1973 because the United States was worried about “the pervasive violation of human rights and the need for a more effective response from the United States and the international community.” A new era in US foreign policy on the subject of human rights was inaugurated by the meetings held under the aegis of “Donald Fraser” and the policies approved by the Committee.
- Additionally, the United States has been crucial in the creation of global human rights laws. One of the key contributions to the Administrative Court of Justice was President F.D. Roosevelt, the preeminent figure of the United States. Additionally, the United States has contributed significantly to the creation of human rights agreements like the Convention on the Rights of the Child and the CEDAW.
- Freedom of speech and expression, freedom of religion, and freedom from fear were all mentioned in a 1941 speech by President Roosevelt. Jimmy Carter urged the US to uphold human rights and act as a role model and leader for other nations. In addition, George W. Bush discussed the connection between democracy and human rights in the US. He made the point that it is better to “influence the development of the principles of human rights in the international community” and that “with the approval of the International Covenant on Civil and Political Rights (ICCPR), the government can underscore the strengthening of democratic values through international law.”
- Despite claiming to be a global leader in promoting human rights, the United States has a history of being less likely to see other nations ratify international human rights treaties. The United States has performed poorly, failing to uphold international human rights standards, creating a particular scenario for itself, giving help to nations that are not democratic, intervening militarily, enforcing sanctions, and even engaging in multilateral negotiations.
Legal frameworks governing human rights in the United States
- The American Declaration of Independence was the first civic text to adhere to a contemporary definition of human rights, claims Human Rights: The Essential Reference. The right to keep and bear weapons, the freedom from torture, the prohibition against harsh and unusual punishment, and the right to a fair trial by jury are only a few of the unalienable rights recognised by the Constitution. As societal demands changed, constitutional modifications were passed.
- Not all human rights were listed in the original United States Constitution, which was acknowledged in the Ninth and Fourteenth Amendments. The Americans with Disabilities Act of 1990 and the Civil Rights Act of 1964 are two examples of human rights legislation that Congress enumerated many years after the Constitution was written. Case laws over time, notably those delivered by the Supreme Court of the United States precedent, define the extent of the legal protection of human rights provided by the US government.
- The United States Congress, which has the authority to list such rights, and the Supreme Court, which has the authority to define rights that the law does not explicitly mention, are the two federal government forums where the discussion of what may or may not be a developing human right has been discussed. Additionally, individual states have frequently defended human rights that are not recognized at the federal level through legal action or legislation. Massachusetts, for instance, was the first state in the US to allow same-sex marriage.
- The US constitutional law distinguishes between self-executing and non-self-executing treaties when referring to human rights and agreements that recognise or establish individual rights. Treaties which are not self-executing (e.g. the Geneva Convention), ascribe rights that may only be granted by law in accordance with the Constitution, must be put into effect by legislation before they may be incorporated into domestic law. The Constitution also stipulates that some situations, such as those that would compel the United States to declare war or appropriate cash, explicitly call for parliamentary consent.
- Human rights treaties that impose a duty to refrain from behaving in a certain way or grant certain rights are typically regarded as self-executing and exempt from further legislative action. Constitutional scholars contend that acts of legislative non-recognition, in which legislative bodies refuse to recognise otherwise self-executing treaties by declaring them to be non-self-executing, violate the separation of powers because, under Article III, the judiciary, not Congress, has the authority to apply treaty law to cases before the courts.
This is a crucial clause in situations where Congress deems a human rights treaty to be non-self-executing, for instance, by arguing that it does not enhance human rights under domestic law in the United States. One such instance is the International Covenant on Civil and Political Rights, which was ratified with reservations, understandings, and declarations after more than two decades of delay.
- A nation is not permitted to use provisions of its internal legislation or Constitution as an excuse for disobeying its responsibilities under the theory of pacta sunt servanda. Therefore, even if a human rights treaty has not yet been put into law or is not recognised to be self-executing, it is nonetheless enforceable under international law and binds the US government.
Human rights in terms of equality
Human rights in terms of equality range from racial and gender issues to those of disability, privacy, and the rights of an accused. Discussion surrounding the same has been provided hereunder.
- The United States Constitution’s Equal Protection Clause, found in the Fourteenth Amendment, ensures that “All Americans who are born here or who become citizens by naturalization are also citizens of the state in which they currently reside. No State should… refuse the equal protection of the laws to any individual under its authority “. A citizen cannot be denied the right to vote because of their “race, color, or prior condition of servitude,” according to the Fifteenth Amendment to the United States Constitution.
- The Civil Rights Act of 1964 (CRA) was a landmark piece of American law that forbade discrimination on the basis of race and national origin in the workplace. The CRA has served as a model for later anti-discrimination laws, strengthened civil rights protections in a wide range of contexts, and is arguably the most significant civil rights law passed in modern times. The 1964 legislation gave those who had been discriminated against a path to seek punitive damages and full back pay. The United States has anti-discrimination government enforcement authorities, such as the Equal Employment Opportunity Commission, in addition to private civil remedies.
- Slavery was permitted in various American states up until 1865 when the Thirteenth Amendment to the US Constitution was ratified. Anthony Benezet founded the Pennsylvania Abolition Society in 1775 under the influence of the Religious Society of Friends, who held the views that all races were equal and that human slavery was inconsistent with Christian doctrine. Benezet called for a nonviolent resolution to the conflict between Native and European Americans and extended the acknowledgement of human rights to Native Americans.
- In the latter half of the 18th century, Benjamin Franklin was elected president of Benezet’s abolition society. Additionally, until the United States Supreme Court overruled this view in 1954, the Fourteenth Amendment was constructed to permit what was known as “Separate but equal treatment” of minorities, which led to the repeal of Jim Crow legislation. Before the Dawes Act of 1887 and the Indian Citizenship Act of 1924, Native Americans lacked citizenship privileges, even though they were original inhabitants.
- Barack Obama became the first African-American president of the United States on January 20, 2009, following the 2008 presidential election. President Obama said in his inaugural speech “A man who’s father might not have received service at a neighborhood eatery 60 years ago can now stand before you and take a most sacred oath. So let’s commemorate this day by reflecting on who we are and where we’ve come from.”
- The federal government and the states are forbidden by the Nineteenth Amendment from denying any person the right to vote because of that citizen’s sexual orientation. Given that each state sets its own suffrage requirements, this does not imply that all women will have the right to vote, but it does imply that states’ suffrage requirements may not bar women from voting because of their gender.
- The United States has passed extensive CRA law that forbids gender-based job discrimination. The 1991 provision gave discrimination victims a legal path to pursue punitive damages and full back pay. The United States has anti-discrimination government enforcement authorities, such as the Equal Employment Opportunity Commission, in addition to private civil remedies.
- The United States also started an affirmative action program in 1965, which mandates that businesses not only refrain from discrimination but also provide protected groups preferential treatment in order to boost their numbers where they are deemed to be underrepresented. Affirmative action policies of this kind are also used in college admissions.
- Sexual harassment at work is regulated by law in the United States. Individual legal rights for those harassed at work exist in the United States since sexual harassment is a violation of civil rights. Women are not required to register with the Selective Service System in case of a military draft. However, men must register with the Selective Service System.
- Muslim women make less money than other women, claims Eman Abdelhadi, an Assistant Professor at the University of Chicago. The US, a leading State in establishing international human rights standards, is allowing its women to lag behind, according to a report by the UN Working Group on Discrimination Against Women in Law and Practice, which is affiliated with the Office of the UN High Commissioner for Human Rights (OHCHR). The US is one of just seven nations, according to their statement, that has not ratified the CEDAW treaty.
- The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination against those who have disabilities in the United States. The ADA represented a significant movement in favor of employing people with disabilities in order to increase their labor force participation and lessen their reliance on government entitlement programmes. Punitive damages may be recovered by plaintiffs under the ADA, which modifies the CRA. Disability discrimination legislation in the US has greatly benefited by the ADA. ADA Title I was determined to be unconstitutional, but the Supreme Court expanded the protection to include those who had AIDS.
- Federal benefits like Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) are frequently administratively viewed in the United States as being primarily or nearly exclusively the entitlement of impoverished US people with disabilities, and not applicable to those with disabilities who make significantly above-poverty level income. This is demonstrated in practice by the common occurrence in the United States where a disabled person on SSI who is suddenly employed and earns a salary or wage at or above the living wage threshold finds that their access to government benefits has ended because allegedly the new job “invalidates” their need for this assistance.
- However, Achieving a Better Life Experience Act of 2014 (the ABLE Act) amended Section 529 of the Internal Revenue Service Code of 1986 to create tax-free savings accounts (ABLE accounts) for qualified expenses. With these accounts (each person is only allowed to have one account), individuals with disabilities whose condition started before the age of 26 can save up to $100,000 without jeopardizing their eligibility for social security and other government benefits.
- Concerns have been raised that SSI benefits are unfair to people with disabilities, particularly those with mental disabilities who frequently lack the knowledge necessary to navigate the complex bureaucracy required to avoid losing their benefits, a situation not dissimilar to probation. SSI benefits also require frequent reviews to “prove” the person is still disabled, and the disabled person is required to be diligent about returning paperwork and reporting any income they make. The only industrialized nation in the world with this particular strategy for programming for people with disabilities is the United States. People with disabilities are, in some ways, treated as second-class citizens as a result of these causes.
There is no explicit mention of privacy in the US Constitution. The Supreme Court found that it is implicit in the Constitution in the Griswold v. Connecticut (1965) decision. The Supreme Court used privacy rights in the Roe v. Wade (1973) decision to strike down the majority of American abortion legislation. The Supreme Court ruled in Cruzan v. Director (1990), against the Missouri Department of Health, that the patient had the right to privacy to stop receiving medical care. The Supreme Court further ruled in Gonzales v. Oregon (2006) that the Oregon Death with Dignity Act’s authorization of physician-assisted suicide cannot be violated by the Federal Controlled Substances Act.
Roe v. Wade (1973) and its offspring were overturned by the Supreme Court in Dobbs v. Jackson’s Women’s Health Organization in 2022, which also announced that the court no longer regarded abortion as a constitutional right as part of a person’s right to privacy from governmental intrusion. In support of the majority, Justice Samuel Alito stated that the 14th Amendment, which protects rights to life, liberty, and property from government acts, did not repeal anti-abortion statutes that were in place at the time of its ratification in 1868. Furthermore, according to Alito’s reasoning, the amendment had not historically had such an impact prior to Roe, contradicting claims that such a right might be justified by the concept of substantive due process.
- In Lawrence v. Texas (2003), the Supreme Court decided that intimate, consenting sexual activity is covered by the Fourteenth Amendment’s substantive due process protections. Further, Bowers v. Hardwick, a judgment from 1986 that determined sodomy prohibitions to be lawful, was specifically overridden by the majority opinion, which was written by Justice Anthony Kennedy, in the 2003’s case. Some states have not overturned their sodomy laws in spite of this decision, and local law enforcement has used these laws to harass or imprison LGBT people.
- Several organizations, including the Human Rights Campaign, Lambda Legal, GLBTQ Legal Advocates and Defenders (GLAD), American Civil Liberties Union (ACLU), the National Center for Transgender Equality, and the National Center for Lesbian Rights, advocate for the civil rights of LGBT people in the United States at all levels and concentrations of political and legal life. Since April 11, 2022, Americans can choose between the sex/gender possibilities of male, female, and X. The Social Security Administration declared in March 2022 that people could self-identify as male, female, or X (in the future) while applying for a Social Security card.
- Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 made it a federal crime to commit a hate crime based on sexual orientation or gender identity, but many states don’t have such legislation at their level. The incidence of discrimination and hate crimes against LGBT people of color is particularly high for trans women of color. Because the First Amendment of the United States provides for extensive free speech protections, hate speech legislation, particularly those that pertain to sexual orientation or gender identity, is unconstitutional.
- US passports now include the options of male, female, and X by self-determination beginning April 11, 2022. There are considerable disparities in the rights that intersex persons in the United States share with other people, notably when it comes to protection from non-consensual cosmetic medical procedures, violence, and discrimination. In order to “fix” these people when they are born or young, numerous non-consensual medical procedures are carried out. Some people are also given hormones to ensure that their bodies develop in accordance with the sex to which they were assigned. The California state legislature approved a law that forbids these procedures in August 2018. Intersex civil society organizations work to end harmful behaviors and advance equality and societal acceptance. Intersex campaigners have recently obtained various types of legal recognition.
Rights of an accused
In legal proceedings, the United States upholds the presumption of innocence. The rights of suspects in criminal activity are covered by the Fourth, Fifth, Sixth, and Eighth Amendments to the United States Constitution. Later, civil cases were included in the protection. The Supreme Court mandated in the Gideon v. Wainwright (1963) case that poor criminal defendants who cannot afford their own lawyers be supplied with counsel at trial. Since the Miranda v. Arizona (1966) ruling, police agencies are required to remind detained individuals of their rights. This procedure is now known as the Miranda warning and often starts with the phrase “You have the right to remain silent.”
Human rights in terms of freedom guaranteed by the US Constitution
The US Constitution guarantees a list of freedoms to its citizens. The same are in line with a human rights approach, discussion concerning the same has been provided below.
Freedom of religion
The First Amendment Establishment Clause forbids Congress from creating a national religion or favoring one religion over another. Beginning with Engel v. Vitale (1962), which declared government-led prayer unconstitutional, the provision was applied to restrict school prayer. In Wallace v. Jaffree (1985), stillness reserved for prayer was outlawed. In the case of Lee v. Weisman (1992), the Supreme Court also declared clergy-led prayer at public high school graduations to be unconstitutional.
The free exercise of religion is guaranteed by the free exercise clause. The “Lemon Test” exemption, which outlines the conditions for legislation including religion, was established by the Supreme Court’s Lemon v. Kurtzman (1971) ruling. In the Employment Division v. Smith (1990) ruling, the Supreme Court upheld the possibility of using a “neutral statute of universal applicability” to restrict people’s freedom of religion. The Religious Freedom Restoration Act was declared invalid in the case of City of Boerne v. Flores (1997) decision for exceeding congressional authority; however, the effect of the ruling is constrained by Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2005) ruling, which calls for states to express a compelling interest in forbidding the use of illegal drugs in religious rituals.
Freedom of expression
The United States is a constitutional republic founded on foundational documents that limit governmental authority and uphold individual liberties. As stated by the First Amendment of the Constitution, the freedom of expression (including speech, the media, and public assembly) is a significant right and is given particular protection. With few exceptions, such as national security and obscenity, the federal and lower governments are not permitted to impose prior restraints on expression, according to the Supreme Court’s precedent. Legal restrictions on expression include:
- Solicitation, fraud, specific violence threats, or release of sensitive information.
- Promoting the overthrow of the US government in publications or speeches, or founding political organizations that support this goal (the Smith Act, 1940).
- Civil charges including libel, fraud, or harassment at work.
- Copyright infringements.
- Regulations set forth by the Federal Communications Commission on the use of broadcast media.
- Crimes involving sexually explicit content in porn and text-only erotica.
- Laws requiring pre-registration for large-scale protests on public property.
- The use of protest-free zones and free speech zones.
- Military censorship of blogs produced by military personnel on the grounds that some of them contain sensitive information that should not be made public. Some detractors believe that military leaders are attempting to quell opposition among field troops.
- The US Constitution expressly restricts the human rights of active duty personnel, and this legal authority is utilized to restrict members’ freedom of speech in other ways as well.
As skirmishes between federal officials and protesters persisted in Portland, Oregon, on July 24, 2020, the United Nations human rights office asked American security authorities to restrain their use of force against peaceful protesters and media.
President Trump reacted violently to demonstrators calling for racial justice. In order to enable his appearance for pictures at a nearby church, Obama ordered federal police to remove peaceful demonstrators from a park next to the White House. Despite concerns about their ability to carry out enforcement operations, his administration sent federal officers to Portland against the objections of local authorities. Then reports of abusive behavior alongside other forms of abuse came.
Freedom of movement
United States passports are required to enter and leave the country in accordance with Section 707(b) of the Foreign Relations Authorization Act, Fiscal Year 1979, and in accordance with the Passport Act of 1926 and Haig v. Agee (1981), the Presidential administration may at any time deny or revoke passports for foreign policy or national security reasons. The 1948 denial of a passport to US Representative Leo Isacson, who wanted to travel to Paris to attend a conference as an observer for the American Council for a Democratic Greece, a Communist front organization, because of the group’s role in opposing the Greek government in the Greek Civil War, may be the most notable illustration of the use of this power.
On June 30, 2010, the American Civil Liberties Union filed a lawsuit challenging the legitimacy of the government’s “no-fly” list on behalf of ten individuals who are either US citizens or are legally residing in the country. Why the plaintiffs are on the list has not been disclosed to them. Five of the claimants are currently stuck overseas. At the time of the case, it was estimated that there were around 8,000 names on the “no-fly” list.
Freedom of association
The right to freely associate is the ability for people to form organizations for the purpose of political activity or the pursuit of interests in common. The Smith Act of 1940, which prohibits political organizations that call for the violent overthrow of the US government, places limitations on the freedom of association in the United States. Through the COINTELPRO program, the FBI made an effort between 1956 and 1971 to “expose, disrupt, misdirect, discredit, or otherwise neutralize” left-wing and indigenous organizations.
The Maryland State Police acknowledged in 2008 that they had entered the identities of anti-death penalty activists and Iraq War demonstrators into a terrorist database. They acknowledged the addition of additional “protest groups” to the terrorist database, but they did not say which ones. Additionally, it was found that undercover troopers accessed group email groups, rallies, and meetings using aliases. Police said there was “absolutely no evidence” that those who are considered terrorists were involved in any violent crimes.
Exception to freedoms
In times of war and conflicts like the American Civil War, the Cold War, or the War on Terror, the United States government has proclaimed martial law, suspended (or claimed exceptions to) some liberties, and declared martial law. Under Executive Order 9066, 70,000 Americans with Japanese ancestry were lawfully detained during World War II. The federal courts have permitted these exclusions in some cases, but not in others when they found that the national security interest was insufficient. These legal rulings were disregarded by Presidents Lincoln, Wilson, and F.D. Roosevelt.
Presidents have asserted the authority to arbitrarily detain anyone who they believe to be fighting for nations or organizations at war with the United States. During the American Civil War, Abraham Lincoln used this authority to jail Maryland secessionists. The government freed the detainees when the Supreme Court ruled that only Congress may suspend the writ of habeas corpus in that instance. Due to stated concerns that Japan may use them as saboteurs, the US detained thousands of Japanese-Americans during World War II; the US Supreme Court maintained this program.
Unreasonable searches and seizures without a warrant are prohibited by the Fourth Amendment of the United States Constitution, but several administrations have made exceptions to this norm to look into alleged conspiracies against the government. The Federal Bureau of Investigation created COINTELPRO during the Cold War to sabotage and infiltrate left-wing groups, especially those who backed black Americans’ civil rights.
Tens of thousands of Americans who have not been charged with a crime are kept in the federal government’s extensive data collection and storage network. The National Suspicious Activity Reporting Initiative, or SAR, is the name of the program, which is primarily run under the direction of the Federal Bureau of Investigation. The program receives reports of suspicious activity observed by local law enforcement or by ordinary residents and builds profiles of the suspects.
The inter-relationship between health and human rights in the United States
For people looking to make domestic health-related human rights claims, the United States is difficult terrain. A little more than ten years ago, some health and human rights researchers waxed rosy following the enactment of the Patient Protection and Affordable Care Act (ACA), 2010, which was intended to significantly expand insurance-based health care. The ACA, the centerpiece piece of legislation for the Obama administration, narrowly passed the US Congress. Those who believe in the advancement of human rights should applaud this legislation for adopting “significant national reforms consistent with human rights norms” in a way that “corresponds with international law and follows both the spirit and substance of the UDHR [Universal Declaration of Human Rights] and the ICESCR [International Covenant on Economic, Social, and Cultural Rights].”
According to the UDHR, “everyone has the right to a standard of living that is adequate for [their] own health and the health and well-being of their family, including food, clothing, housing, and medical treatment.” In addition, medical professionals are obligated by the American Medical Association’s Principles of Medical Ethics to uphold the patient’s human rights, which include the right to get care when necessary. The US Patients’ Bill of Rights governs American citizens’ healthcare rights.
The majority of Americans do not have access to government-subsidized health care in the United States, unlike most other industrialized countries. Children, pregnant women, and very low-income persons with disabilities are among the groups of people and families in the United States who receive subsidized coverage under the Medicaid program (higher-earning people with disabilities do not qualify for Medicaid, although they do qualify for Medicare). The Medicaid programme, however, “does not offer health care services, even for very poor people, unless they are in one of the approved eligibility groups,” according to the organization’s own documents.
However, the ACA’s protections have always been “inherently unstable,” as critics have been keen to point out. To start, this market-based system bases healthcare access on a legislative right, which means that it is subject to change or revocation. Additionally, it precisely avoids the terminology of the rights and obligations of international law, thus avoiding compliance with international standards and commitments.
It provides evidence that human rights can “travel” and transform even in environments where they lack legal traction, such as the United States, even though the country’s overall legal and policy climate is no more hospitable to health-related human rights claims now than it was before the passage of the ACA. Human rights can serve as a potent “idiom of social justice mobilization for health” outside of the realms of law and policy by introducing new terms and concepts, deepening awareness of historical legacies, and proposing new narrative frames for interpreting present and historical instances of disparity and injustice.
There are numerous approaches to evaluate “how human rights are making a difference for health,” as the first Special Rapporteur of the United Nations on the right to health, Paul Hunt and others have noted. This claim is undoubtedly accurate, and its implications might even go beyond what its writers had in mind. Opportunities to support the “establishment” side of the human rights enterprise, which Mark Goodale refers to, are becoming more clear-cut. These include tactics to increase the efficacy of legal interventions, support institutional legitimacy claims, and establish more clearly defined lines of accountability.
The general population may not fully comprehend what human rights are, how they are violated, or how these violations are related to health imbalances. One day, this specialized language might be the catalyst for innovative thought, but first, locals and residents must be given an introduction. Unusual human rights declarations, such as those covered in this section, may be particularly useful in settings like museums and community-based participatory research. Such informal interactions can inspire original thought and aid in broadening the public’s conceptions of how human rights might affect health by demonstrating how they can be valuable, topical, and relevant even in nations lacking explicit human rights obligations.
COVID-19 pandemic and human rights : possible scenario
For the majority of the countries, COVID-19 preventative and mitigation attempts were abrupt and difficult because of the prolonged lockdown that hampered socioeconomic operations. Marginalized individuals and groups are especially susceptible to the negative consequences of the epidemic, including abuses and violations of human rights that can cause psychological anguish. In this assessment, we emphasize the mental pain and disturbances that the pandemic’s limits and abuses of human rights have caused.
Although there isn’t a clear overarching or unifying theme for COVID-19’s human rights component in the Americas just yet, it has been noticed how populism or populism associated with far-right nationalism may drive NTDs and consequently COVID-19. Populism has many definitions, but generally speaking, the term refers to a political system that stands up for the common people and opposes the preferences of the elites.
The US Populist Party was founded in the American Midwest in the late 1800s by farmers who felt left out of the economic advances brought about by corporate interests or political corruption. However, strangely, populism has also been associated with far-right agendas in the twenty-first century.
A former employee of the Rockefeller Foundation and the United States Agency for International Development, Ariel Pablos-Mendez, has noted how this new form of populism has contributed to the emergence of COVID-19 through a pattern of federal government denial and neglect, leaving individual states or local municipalities in countries like Brazil or Mexico to fight the pandemic. This has also been seen in the US, where each state is allowed to make its own judgments in place of federal mandates. In these situations, populist-led federal administrations either downplay the severity of the COVID-19 pandemic or blame conspiracies for its existence. They use this false information as justification for their inaction or federal government engagement in the fight against the disease.
The lack of worldwide access to COVID-19 vaccines, treatments, and diagnostics is now taking on a new human rights dimension. For instance, a global initiative to speed up access to vaccines is in progress, and even though it is unclear which vaccines will be used, these depend on a variety of vaccine technologies that are currently being assessed. Operation Warp Speed, which is being spearheaded by the US, is also in progress but is not a part of the overall plan. An unsettling trend known as “vaccinationalism,” which refers to vaccines by their countries of origin, has evolved in the absence of US leadership. The promise of “vaccine diplomacy,” which seeks to encourage international cooperation in vaccine research and development, stands in stark contrast to this idea.
Particularly among the underprivileged and neglected communities residing in the US, Mexico, Central America, and South America, COVID-19 in the Western Hemisphere has taken on a significant and menacing human rights component. Compared to other populations, populations living in poverty, especially indigenous people, have an increased chance of contracting COVID-19, and there are serious worries that these populations will also lack access to preventive drugs and immunizations.
Additionally, there is an urgent need to gather the leaders of the Latin American countries as COVID-19 appears to be the newest major NTD in the region that causes long-term morbidities. The Organization of American States, PAHO-WHO, the Inter-American Development Bank, other regional banks, and the private sector must all work together to directly participate in and assist in the development of both short- and long-term strategies. In the region, there have been 625,000 deaths to date, but an international response has yet to materialize.
Punishment system and human rights: the connection
- Following decisions by the US Supreme Court in the cases of Gregg v. Georgia (1976), Jurek v. Texas (1976), and Proffitt v. Florida (1976), the death sentence was finally reinstated on a national level in 1976. Since then, the death penalty has undergone more revisions. In Roper v. Simmons, the Supreme Court ruled on March 1, 2005, forbidding the execution of those who committed their crimes when they were under the age of 18. It has been contended in international law that the United States’ use of the death sentence may be in breach of international human rights accords.
- In 1998, the UN special rapporteur called for an immediate moratorium on the death penalty and recommended to a committee of the UN General Assembly that the United States be found to be in violation of Article 6 of the International Covenant on Civil and Political Rights with regard to the death penalty. But according to international law, the special rapporteur’s proposal is not binding, so in this instance, the UN disregarded the lawyer’s advice.
- As solitary confinement “often causes mental and physical suffering or humiliation, amounting to cruel, inhuman or degrading treatment or punishment, and if the resulting pain or sufferings are severe, solitary confinement even amounts to torture,” Juan E. Méndez, the Special Rapporteur of the United Nations on torture, has asked that the United States stop holding prisoners in this manner. Angola Prison in Louisiana inmates Herman Wallace and Albert Woodfox serve as a stark illustration. Each has spent more than 40 years in solitary confinement.
- According to the NGO Human Rights Watch, there are serious human rights violations caused by the onerous restrictions placed on former offenders and their families as well as the burden of being publicly listed as a sex offender. These issues are brought on by the current sex offender registration laws. They have criticized the overly broad registration requirements, which have the propensity to treat all offenders equally regardless of the nature of the offense and without taking into account the risk of future reoffending, as well as the application of such laws to juvenile offenders, consensual teenage sex, prostitution, consensual teenage sexting, and exposing oneself as a practical joke.
- The US’s stance on alternatives to prison and parole has also drawn considerable criticism. The federal prison system does not offer parole, which has sparked international criticism from human rights organizations and is seen to be a significant factor in jail overcrowding. Furthermore, 16 states’ prison systems don’t offer parole. Where parole is permitted, it is rarely given, and the only nation where adolescents are currently serving life terms without the possibility of parole is the United States of America has also come under fire for having little to no alternatives to incarceration. Rarely are community service, fines, or probation used as alternatives to prison terms.
- According to George Floyd’s official post-mortem report from June 2, 2020, the compression on his neck and back caused him to asphyxiate, or run out of oxygen. According to a statement from the family’s legal team, it also concluded that the death was the result of murder. On June 23, 2020, a report from the University of Chicago Law School asserted that the police departments of the 20 biggest cities in the United States did not adhere to even the most fundamental norms set forth by international human rights standards. Without considerable reform, the police are permitted to engage in “state-sanctioned violence.” Human rights issues have been raised by the use of cavity and strip searches by law enforcement organizations and in the prison system. Concerns about civil and human rights have been raised by the practice of leading an arrested person on a perp walk through a public area while they are frequently shackled, giving the media the chance to record the event on camera.
Numerous complaints have been made regarding specific legal proceedings. For example, the National Association of Criminal Defense Lawyers and Human Rights Watch have argued that there is a “trial penalty,” a punishment for choosing to go to trial that stems from the stark contrast between the punishment a defendant would receive by forgoing their right to trial and accepting a plea bargain and the punishment they might receive at trial. They contend that this contrast violates the guarantee of the right to a fair trial under the Sixth Amendment. Additionally, qualified immunity, a legal precedent that protects public servants including police officers from civil lawsuits, has drawn a great deal of criticism. The argument that qualified immunity makes it too difficult to sue public officials for misconduct, especially civil rights breaches, has been made by critics. This has been blamed in particular for facilitating police brutality.
Environment and human rights in the United States
Standards for air quality and vehicle emissions were lowered by the Trump administration, and numerous obligations for environmental monitoring were halted. More than 70 pesticides that have been prohibited or are being completely phased out in the European Union, Brazil, or China are being used on American fields, endangering the health of farmworkers and the communities around them. People in the US continue to be affected by air pollution from industry, transportation, and wildfires, which are becoming more frequent as a result of climate change. This is especially true for communities of color. According to research from Harvard University, those who have COVID-19 are more likely to pass away if they are exposed to high levels of air pollution.
Without proper access to water, several communities particularly those of Native Americans living on reservations were affected by the COVID-19 pandemic. Detroit neglected to restore water service to homes, particularly in minority communities, that had been cut off prior to the outbreak. A nonprofit devoted to community research called We the People of Detroit discovered in July 2020 that zip codes with more water shutoffs were also associated with more COVID-19 instances. The second-largest emitter of greenhouse gases in the world is the United States. On November 4, Trump’s decision to withdraw the US from the Paris Agreement became effective. On his first day in office, Biden promised to reaffirm the deal.
Climate change contributed to a rise in the frequency and severity of extreme weather events, which disproportionately affected already vulnerable areas. 2020’s summer was among the warmest ever recorded. Although some local governments issued warnings regarding heat-related illnesses and deaths, the majority of plans didn’t include pregnant women, who are more susceptible to heat stress. Heat and premature birth are related. Black women are more vulnerable because they already have higher rates of preterm birth.
Challenges associated with human rights in the United States
Without a doubt, the United States still serves as a global leader on various problems related to human rights. For instance, the current administration has demonstrated strong leadership in the struggle for LGBT equality, the fight against human trafficking, and the promotion of rights to freedom of religion and peaceful assembly. The United States has lagged behind other industrialized nations in defending the universal human rights enshrined in the UDHR, despite some of its laws and policies being fairly progressive in defending civil rights and civil freedoms. The United States’ 65-year-old vow to uphold fundamental rights has only been partially and selectively implemented by the US government, in violation of its international duties. Some of the instances showcasing rising challenges in the United States with regard to human rights have been reflected hereunder:
- The United States is the only nation in the world that still convicts children to a life of solitary confinement without the chance of parole. Further, no victims of the Bush administration’s torture programme have appeared in a US court to yet and no senior government figure in authority has ever been put on trial for a crime.
- In order to provide “freedom from want,”(FDR), invoked by the Obama administration and has been referred to as one of the “four freedoms” in the Universal Declaration of Human Rights, the government must play a role. However, the United States now also has the greatest income gap in the industrialized world and:
- 20% of its children are underprivileged.
- More than 30 million people often do not have access to basic healthcare.
- African Americans and Latinos have poverty rates that are almost twice as high as the general population.
- The landmark IACHR Gonzales decision serves as a reminder that the United States lacks the legal resources necessary to fully defend women’s rights. 464 women are sexually assaulted or raped on average each day, but only 40% of rapes are reported to the authorities. By ratifying the Women’s Rights Convention (CEDAW), the United States would be obligated to take proactive steps to reduce gender-based violence.
- Nearly a quarter million kids are still allowed to receive corporal punishment in public schools each year thanks to 19 states. African-American children and students with impairments receive punishment at disproportionately higher rates. The Ending Corporal Punishment in Schools Act, a legislation that forbids corporal punishment in public and private schools with pupils who receive federal services, has prevented such violence at a considerable rate, but the road to improvement stands lengthy.
- The death penalty is an unfair and flawed form of punishment. Only 36% of Americans identify as members of a racial or ethnic minority, but 3,108 of them are on death row, making up 58% of the total. On the basis of evidence showing their innocence, people’s death sentences have been overturned.
- Amnesty International expressed concerns about the state of human rights in the US on October 28, 2020, and made the decision to monitor and draw attention to human rights abuses connected to demonstrations before, during, and after the 3 November US elections.
- The United States was scrutinized for the first time in five years on November 9, 2020, during a 3.5-hour session at the UN’s principal human rights committee, in relation to the detention of immigrant children and the killings of unarmed Black people while Donald Trump was president. As a result of an August study on the US’s historical record of respecting human rights, the US’s critics, Iran, Syria, Venezuela, Russia, and China, raised questions about it.
- Since 2013, Human Rights Watch has documented 138 incidents of El Salvadorians who died after being deported from the US to El Salvador, highlighting the cost of the US protection system’s shortcomings. Under the controversial Asylum Cooperation Agreement, the Trump administration enhanced fast-track deportation practices for families at the border and deported Honduran and Salvadoran asylum claimants to Guatemala. LGBT persons who are escaping persecution, including sexual violence, in El Salvador, Guatemala, and Honduras are harmed by US limits on access to asylum, according to a report by Human Rights Watch.
- The Centers for Disease Control and Prevention (CDC) issued an order sealing the land borders in March as COVID-19 cases rose, defying the views of career CDC public health officials who believed it was not necessary. Due to this, more than 333000 individuals, including children, were forcibly removed from their homes along the US-Mexico border without first being evaluated for their eligibility for asylum or other protections.
- Some people’s ability to vote in primary elections was severely hampered by election authorities’ responses to the COVID-19 outbreak, although access had improved by the main election in November 2021. People in Florida with criminal convictions must pay fines before they may cast a ballot, according to a federal appeals court. President Trump made irrational claims of voting fraud and initiated legal actions to challenge the electoral systems of some states while mainstream outlets predicted Biden would win the presidential election.
- However, just 8% of all occurrences of COVID-19 in the US were among patients residing in long-term care facilities, which accounted for more than 40% of state-reported deaths. Operators of nursing homes lobbied state and federal governments to provide them extensive legal immunity. Senior citizens who were already vulnerable were put at greater risk by nursing institutions’ long-standing infection control issues and decreased public supervision of nursing homes during the COVID-19 disaster.
In order to promote and defend human rights at the federal, state, and local levels, the United States should establish efficient procedures for monitoring, enforcing, and implementing human rights. The concept of human rights is now at its peak. The Universal Declaration of Human Rights is an appeal for justice and freedom for all people. Governments that abuse the rights of their citizens are confronted and called to account daily. Government representatives who are aware of the human rights framework can also contribute significantly to freedom. Abraham Lincoln, Franklin Roosevelt, Lyndon B. Johnson, and Jimmy Carter are just a few of the American Presidents who have fought tenaciously for human rights. Other nations have seen significant advancements in human rights thanks to leaders like Nelson Mandela and Vaclav Havel. Around the world, people mobilize daily to fight against injustice and inhumanity. They weaken the forces of oppression and bring the world one step closer to realizing the ideals outlined in the Universal Declaration of Human Rights.
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