McGuinness: Human Rights Reporting as Human Rights Governance

Margaret E. McGuinness (St. John's Univ. - Law) has posted Human Rights Reporting as Human Rights Governance (Columbia Journal of Transnational Law, forthcoming). Here's the abstract:

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.