Human Rights Reporting as Human Rights Governance

MARGARET E. MCGUINNESS*

Contrary to the view that the rejection of human rights treaty membership has left the United States outside the formal international human rights system, the United States has played a key role in international human rights governance through congressionally mandated human rights monitoring and reporting. Since the mid- 1970s, congressional oversight of human rights diplomacy, which requires reporting on global human rights practices, has integrated international human rights law and norms into the execution of U.S. foreign policy. While the congressional human rights mandates have drifted from their original purpose to condition allocation of foreign aid, they have effectively embedded international human rights norms and law into congressional decision-making and the operations of executive branch agencies. Over the years, the reports issued pursuant to the mandates have also become an important international source of human rights fact-finding, influencing the ways in which courts, non-governmental organizations (NGOs), and international human rights institutions themselves interpret and apply human rights law. In this respect, congressional human rights reporting mandates—not congressional human rights treaty policy—have evolved as a driver of U.S. engagement with and interpretation of the protections of international human rights law. This Article draws on a variety of sources, including diplomatic correspondence, interviews with government officials, caselaw in domestic courts, and reporting by international human rights NGOs, to explore the effects of the congressional human rights reporting mandates. It demonstrates that what was designed as unilateral policy to enforce human rights has affected the construction of the U.S. human rights identity within the international system and the international human rights system itself. Operating separately and in parallel to targeted human rights sanctions legislation, the human rights reporting mandates demonstrate the active and effective participation of the United States in international human rights governance.

* Professor of Law and Co-Director of the Center for International and Comparative Law, St. John’s University School of Law. Special thanks to the editors of the Columbia Journal of Transnational Law for their excellent editorial support. For outstanding research assistance, thanks go to Steven Ellis, Allison Singh, Nasira Haque, Katelyn Trionfetti, Jessica Wright, Elizabeth Fitzgerald, Enisa Dervisevic, Patrick O’Conner, Beth Do and Chris Byrne. I am also grateful to Carlos Vazquez, David Sloss, Fiona De Londras, Arthur Lenk, Mark Shulman, Jennifer Trahan, Adil Haque, Claire Kelly, Jeff Walker, Chris Borgen, Mark Pollack, Mike Perino, Adam Zimmerman, Ruth Wedgwood, Elena Baylis, David Martin, David Stewart, Chris Whytock, Keith Sharfman, Ryan Scoville, Anil Kalhan, and Mark Movsesian, as well as participants in the ASIL Research Forum, the St. John’s Center for International and Comparative Law roundtable, and students and faculty at the Johns Hopkins School of Advanced International Studies for comments on earlier presentations of this research. I am especially grateful for conversations with senior members of the State Department Bureau of Democracy, Human Rights, and Labor about the process of drafting and preparing the annual Country Reports on Human Rights, and for their assistance with FOIA requests. All source materials indicated as “on file with author” are available upon request from the author or from the Rittenberg Library at St. John’s University School of Law.