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Reply of the Government of the United States of America to the Report of the Five UNCHR Special Rapporteurs on Detainees in Guantanamo Bay, Cuba*

Published online by Cambridge University Press:  27 February 2017

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Type
Declarations, Resolutions and Other Documents
Information
International Legal Materials , Volume 45 , Issue 3 , May 2006 , pp. 742 - 768
Copyright
Copyright © American Society of International Law 2006

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Footnotes

*

This document was provided to the ILM office by the State Department.

References

Endnotes

1 Theodor Meron, The Humanization of Humanitarian Law, 94 A.J.I.L. 239, 240 (2000) (emphasis added).

2 Id.

3 Although the United States has not ratified the Vienna Convention on the Law of Treaties, the Convention is often consulted as a guide to general principles of treaty interpretation. See, e.g., Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 433 (2d Cir.), cert, denied, 534 U.S. 891 (2001); see also Vienna Convention on the Law of Treaties, S. Exec. Doc. L, 92d Cong., 1st Sess. 1, 19 (1971).

4 Summary record of the 1405th meeting: United States of America, UN ESCOR Hum. Rts. Comm., 53rd Sess., 1504th mtg. at 7, 20, U.N. Doc. CCPR/C/SR 1405 (1995).

5 Compilation of the Comments of Governments on the Draft International Covenant on Human Rights and on the Proposed Additional Articles, U.N. ESCOR Hum. Rts. Comm., 6th Sess. at 14, UN Doc. E/CN.4/365 (1950) (U.S. proposal). The U.S. amendment added the words “territory and subject to its” before “jurisdiction” in Article 2(1).

6 Summary Record of the Hundred and Ninety-Third Meeting, U.N. ESCOR Hum. Rts. Comm., 6th Sess., 193rd mtg. At 13, 18, U.N. Doc. E/CN.4/SR.193 at 13, 18 (1950) (Mrs. Roosevelt); Summary Record of the Hundred and Ninety-Fourth Meeting, U.N. ESCOR Hum. Rts. Comm., 6th Sess., 194rd mtg. at 5, 9, U.N. Doc. E/CN.4/SR. 194(1950).

7 Summary Record of the Hundred and Thirty-Eighth Meeting, U.N. ESCOR Hum. Rts. Comm., 6th Sess., 138th mtg at 10, U.N. Doc. E/CN.4/SR.138 (1950) (emphasis added).

8 Summary Record of the Hundred and Ninety-Third Meeting, supra note 2, at 21. (Mr. Rene Cassin). Several states maintained similar positions. See, Summary Record of the Hundred and Ninety-Fourth Meeting, supra note 2, at 5 (Mauro Men-dez, representative of Philippines); Id. (Alexis Kryou, representative of Greece); M.at 7 (Joseph Nisot, representative of Belgium); Id. at 8 (Branko Jevremovic, representative of Yugoslavia)

9 Id. at 7 (Charles Malik proposed the addition of the words ‘“in so far as internal laws are applicable’ following the U.S. amendment.“).

10 Id.(Mrs. Roosevelt)ICCPR Article 12(4) provides that “No one shall be arbitrarily deprived of the right to enter his own country.“

11 Summary Record of the Hundred and Ninety-Fourth Meeting, supra note 2, at 7 (Mrs. Roosevelt)

12 Id. Several states maintained that the United States position was the most sound and logical one. See, Id. at 6 (Dr. Carlos Valenzuela, representative of Chile); Id. at 8 (E.N. Oribe, representative of Uruguay)

13 Id. at 11.

14 Draft International Convention on Human Rights and Measures of Implementation, U.N. ESCOR Hum. Rts. Comm., 8th Sess., Agenda Item 4, U.N. Doc. E/CN.4/L.161 (1952) (French amendment); Summary Record of the Three Hundred and Twenty-Ninth Meeting, U.N. ESCOR Hum. Rts. Comm., 8th Sess., 329th mtg. at 14, UN Doc. E/CN.4/SR.329 (1952) (vote rejecting amendment). During the debate France and Yugoslavia again urged deletion of the phrase within its territory because states should be required to guarantee Covenant rights to citizens abroad. Id. at 13 (P. Juvigny, representative of France); Id. at 13 (Branko Jevremovic, representative of Yugoslavia).

15 U.N. GAOR 3rd Comm., 18th Sess., 1259th mtg. f 30, U.N. Doc. A/C.3/SR.1259 (1963) (rejection of French and Chinese proposal to delete “within its territory“). Several states again maintained that the Covenant should guarantee rights to citizens abroad. See, U.N. GAOR 3rd Comm., 18th Sess., 1257th mtg. ¶ UN Doc. A/C.3/SR.1257 (1963) (Mrs. Mantaoulinos, representative of Greece); Id. at ¶ 10 (Mr. Capotorti, representative of Italy); Id. at ¶ 21 (Mr. Combal, representative of France); U.N. GAOR 3rd Comm., 18th Sess., 1258th mtg. f 29, UN Doc. A/C.3/SR.1258 (1963) (Mr. Cha, representative of China); Id. at ¶ 39 (Antonio Belaunde, representative of Peru).

16 Department of Defense Memorandum (Jan. 27, 2005).

17 Response of the United States of America Dated October 21, 2005 to Inquiry of the UNCHR Special Rapporteurs Dated August 8, 2005 Pertaining to Detainees at Guantanamo Bay (attached as an Annex to this Reply).

18 For example, the inexplicable failure to include adequate reference to the Detainee Treatment Act of 2005, discussed below.

19 Detainee Treatment Act of 2005, H.R. 2863, Title X, Sections 1005(e)(2)(C)(i) and (ii).

20 Memorandum for the Commander, US Southern Command(April 16, 2003), available at <http://www.defenselink.mil/news/Jun2004/d20040622doc9.pdf>

21 Id., Section 1002.

22 Available at <http://www.defenselink.mil/news/Aug2004/d20040824finalreport.pdf>

23 Available at <http://www4.army.mil/ocpa/reports/ArmyIG DetaineeAbuse/index.html>

24 Available at <http://www.defenselink.mil/news/Mar2005/ d20050310exe.pdf>

25 Available at <http://www.armymedicine.army.mil/news/detmedopsrprt/detmedopsrpt.cfm>

26 Available at <http://www.defenselink.mil/news/Jul2005/d20050714report.pdf>

27 Available at <http://www.defenselink.mil/transcripts/2004/tr20040824-secdef1221.html>

28 See Response of the United States of America Dated October 21, 2005 to Inquiry of the UNCHR Special Rapporteurs Dated August 8, 2005 Pertaining to Detainees at Guantanamo Bay at 29-36.

29 President Hosts Iftaar Dinner, October 17, 2005, available at <http://www.whitehouse.gov/news/releases/2005/10/20051017-5.html> (emphasis added).

30 Available at <http://www.ha.osd.mil/policies/2005/05-006.pdf.2>