Blatant Disrespect by the US at DAPL Human Rights Hearing

Reprinted with permission from Indian Country Media Today

April 4, 2017. The Organization of American States’ Inter-American Commission on Human Rights has called the United States to account for the actions that led to permitting construction on the Dakota Access Pipeline to resume despite protests from the American Indian community and a flawed environmental review process.

The commission held a hearing on March 21 to consider President Trump’s executive orders on DAPL for possible human rights violations.

In an extraordinary move, the Trump administration didn’t show up to make its case before the international community.

“It is unprecedented,” said Robert A. Williams, Lumbee. “The United States joins the ranks of countries like Cuba and Venezuela and other past military and civilian dictatorships that just don’t show up.” Williams is the E. Thomas Sullivan Professor of Law and Faculty Chair of the University of Arizona Indigenous Peoples Law and Policy (IPLP) Program, which has extensive experience representing indigenous Peoples in international forums.

The OAS is comprised of 35 independent nations of the Americas. It traces its origins back to the First International Conference of American States, held in Washington, D.C., in 1889-1890.

Keith Harper, Cherokee Nation, is former U.S. representative to the United Nations Human Rights Council in Geneva. He said of the U.S. absence on March 21, “I think it’s a terrible sign. The United States has traditionally played a leadership role both in regional intergovernmental organizations and in international organizations. That is because we, the United States, have been guided by the view that these organizations, however flawed, play an important role in both human rights and in ensuring the international rule-based order. The United States not showing up sends the exact wrong message. If we don’t show up it gives license to those other states not to show up either. It is something that would not have happened in the Obama administration.”

On January 24, President Donald Trump issued an executive order that expedited environmental reviews and approvals for all infrastructure projects, especially those deemed “high-priority,” as well as two executive memoranda that specifically green-lighted approvals for the Dakota Access Pipeline and the Keystone Pipeline.

As a result of the president’s executive orders, on February 7, the U.S. Army Corps of Engineers granted the easement to finish DAPL without completing the environmental impact assessment that was underway, or allowing the public comment that was part of that assessment. The idea of looking for an alternate route for the pipeline that would not threaten tribal water resources was scrapped altogether. Federal courts declined to intervene and in early February construction on the pipeline resumed and the pipeline has been finished.

It was for these actions, taken in direct violation of the Organization of American States’ 2016 American Declaration of the Rights of Indigenous Peoples, that the U.S. was expected to answer to the commission. The declaration, passed by acclamation, guarantees Native peoples “free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”

In its statement before the Commission, the International Indian Treaty Council said it was their view “that the January 24 Executive Order and the Presidential Memoranda deny Indigenous Peoples’ right to due process, violate federal law, federal trust responsibility, and disregard international human rights norms, principles and standards to which the U.S. is obligated…. The IITC further asserts that the President does not have the legal or moral authority to violate the U.S. Constitution, which states ‘treaties are the supreme law of the land.’”

The hearing was convened to also question U.S. officials on the administration’s immigration ban, immigration enforcement within the country and the detention of immigrants.

The ACLU took the lead in January in challenging President Trump’s executive order banning immigration from seven Muslim-majority countries. Because of the ACLU’s actions, implementation of the first so-called “Muslim ban” was stopped by the courts and eventually abandoned by the administration.

Jamil Dakwar, director of the American Civil Liberties Union’s Human Rights Program, appeared before the Commission March 21, where he made the following statement about the failure of the U.S. to attend the hearing: “Today’s no-show is a new low. The Trump administration’s decision is an unprecedented show of disrespect to the international community that will alienate democratic allies. Refusing to engage with the commission is an isolationist policy that mirrors the behavior of authoritarian regimes and will only serve to embolden them. This is another worrying sign that the Trump administration is not only launching an assault on human rights at home but is also trying to undermine international bodies charged with holding abusive governments accountable.”

Harper and Williams both said that one of the most dangerous aspects of the U.S. absence was that it gave carte blanche for other countries to follow suit. “If the U.S. doesn’t show up, then why does Venezuela need to show up? Why does Nicaragua need to show up when it’s charged with human rights abuses of its Indigenous Peoples?” asked Williams.

U.S. State Department acting spokesperson Mark Toner said in a press briefing on March 21: “It was not appropriate – and this was deemed not appropriate by our legal experts – for the United States to participate in these hearings while litigation on the matters was ongoing in U.S. courts.”

Williams countered, “Every issue that the Commission hears is under litigation. [This reasoning] reveals a fundamental misunderstanding of the human rights process. The human rights process only gets engaged when domestic remedies have failed or allegedly failed to protect fundamental human rights that the U.S. has agreed to by treaty, in this case the American Declaration on the Rights and Duties of Man [adopted by the OAS in 1948].”

President Trump’s proposed budget for 2018 indicates a continued rejection of the role the U.S. has historically played on the international stage, cutting 28 percent from the Department of State and the U.S. Agency for International Development compared with 2017 levels and making drastic reductions in the amount the U.S. pays in dues to the United Nations, the OAS and other international and regional organizations.

The administration’s actions have serious implications for human rights in the Western Hemisphere and around the world, said Williams.