Alleged international law norm barring detention based on
investigations triggered partly by national origin or alienage
Arthur D. Wolf
awolf at LLAMA.CNET.WNEC.EDU
Sun Dec 2 12:46:10 PST 2001
Let's be careful what we say about Attorney Gonzales. President Bush may
very well appoint him to fill the next vacancy on the United States Supreme
On the general topic, postwar international human rights protection
against discrimination begins with Art. 55 of the UN Charter, which
proscribes discrimination based on "race, sex, language, or religion."
Prewar European protections, when they existed, tended to focus only on
race, language, and religion. Art. II of the American Declaration of the
Rights and Duties of Man (1948) encompassed "race, sex, language, creed or
any other factor." The UNGA's Universal Declaration of Human Rights (Art.
2; 1948) contained a non-exhaustive list that included "race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status." Finally, the International Covenant on
Civil and Political Rights (Art. 2; 1966), the treaty that grew out of the
Universal Declaration, also contained a non-exhaustive list that tracked
the language of the Universal Declaration.
"Race," of course, includes ethnicity (e.g., Roma, Basques, Bohemians,
Kurds, etc.), as our Supreme Court so held several years ago. "National
origin" may have different meanings, but it is not, at least under the
Universal Declaration (now viewed by some as binding customary
international law) and the International Covenant, synonymous with race
(i.e., ethnicity). The United States is a party to the International
Covenant. It violates that treaty if it discriminates based on race,
religion, or national origin. Thus if it singles out persons or groups of
persons for adverse treatment based on any of these factors, it would
violate its treaty obligations.
However, the anti-discrimination provision in the International Covenant
extends only to "all individuals within its territory and subject to its
jurisdiction." Thus the U.S. could discriminate, at least under the
Covenant, at its borders regarding non-citizens seeking to enter the U.S.
for the first time. In my view, though, it could not do so regarding
aliens already within the country, here either permanently or temporarily.
If the US based its recent "round-up" of persons of
Arab/Muslim/Middle-Eastern descent on any of these forbidden criteria, it
may be in violation of its treaty obligations. The U.S. argues, however,
that it based the round-up on objective factors relating to terrorist and
other unlawful activities or suspicion thereof.
Needless to say, whether such discrimination needs to be purposeful or
intentional (as under the EP Clause of our 14th A.) or simply has an
unlawful effect or impact to violate the treaty is debatable. The
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW; 1979)(US is a signatory, but not a party) quite clearly includes a
discriminatory act that has an impermissible "effect or purpose." The Int.
Cov. is silent on this point.
Of course, treaty obligations may be subject to reservations,
declarations, or understandings that a signatory or party enters. When we
ratified the International Covenant, we entered a ton of such
qualifications, with which I am not entirely conversant. Some may cover
the current situation, such as those relating to the death penalty.
Western New England College
At 03:46 PM 11/30/2001 -0500, you wrote:
>Prof. Volokh wrote: "I also appreciate Prof. Martin's cites; do they
specifically say that the government may not discriminate based on the
country of an alien's citizenship? Or do they just prohibit discrimination
based on "national origin" in the sense of the ethnicity of one's forbears?
At this level of generality, the international law supposedly violated by
the Administration's policy remains, as the subject line suggests, merely
"alleged" and not really supported."
>I guess the best cite that comes to mind is a UN Human Rights Committee
case (Hill v. Spain) concerning a foreign national's right to liberty in
which the Committee held that the fact of the authors' foreign nationality
alone could not bar them from pre-trial release for an arson charge.
>Prof. Volokh continues: "More broadly, I believe there was an allegation
made about a specific person: That Mr. Gonzales is essentially an
incompetent lawyer ("Is this the best that the White House can get for
legal counsel?"). The allegation was originally based on the theory that
"this kind of discrimination [is] outrageous and clearly illegal," but then
apparently was changed to the theory that the "statement was a disservice
to his client," apparently because it implicated the U.S. in a violation of
international law. The allegation, just like the allegation about
President Bush's supposed current or imminent war crimes (in the thread
that started with Prof. Martin's post with a subject of "Impeachment for
War Crimes"), at this point appears to be unproven. It seems to me that
Prof. Martin ought to either withdraw the accusation of Mr. Gonzales'
incompetence or provide some specific evidence, beyond just the broad
statement that international law bars discrimination ba!
>sed on national origin, that supports it."
>Prof. Volokh mistakenly states that I accused Mr. Gonzales of
incompetence. I never have. It was and continues to be my belief that
White House Counsel should not have made statements that strongly indicate
unconstitutional motives for arresting thousands of persons and clearly
indicated illegal motives under the U.S.' international law obligations. I
believe that I may have used the word "stupid" in reference to Gonzales'
statement (and I somewhat regret this impoliteness), but mere stupidity
does not necessarily rise to the level of incomptence.
>As for my argument that the Bush military order if implemented would
subject Pres. Bush to impeachment and conviction under the War Crimes Act
as a matter of law (not necessarily fact, obviously), I believe that I have
proven my case by providing the requested legal authorities. I don't
expect Prof. Volokh to agree with me (he rarely does).
>Francisco Forrest Martin
>Ariel F. Sallows Professor of Human Rights
>University of Saskatchewan College of Law
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