This article highlights developments in 2021 that the International Human Rights Committee (IHRC) has focused on in its programming and advocacy work.
On October 8, 2021, the United Nations (UN) Human Rights Council (HRC) took two significant actions to address the degradation of the environment and the challenges posed by climate change. After many years of campaigning, the Council adopted a resolution recognizing the right to a safe, clean, healthy and sustainable environment as a human right within the international system of human rights law. The Council also appointed a special rapporteur to promote the protection of human rights in the context of climate change. The Council’s recognition of the right to a healthy environment, itself significant, also paves the way for the adoption of a similar resolution by the UN General Assembly. By the time this article is published, that may well have happened.
The resolution on the right to a healthy environment encourages States to: (1) build capacities to implement protection of the environment and coordinate with other States, the UN, regional agencies and non-State stakeholders, including relevant communities of civil society; (2) adopt policies and practices that will fulfill their obligations to ensure a healthy environment; and (3) design their practices in alignment with the UN’s Sustainable Development Goals. It also invites the General Assembly to consider adopting a similar resolution.
The right to a healthy environment may be inherent in other human rights recognized by international law, including the rights to life, the enjoyment of the highest attainable standard of physical and mental health, an adequate standard of living, food, housing, safe drinking water and sanitation, and participation in cultural life. But, until now, the UN has never formally recognized the right to a healthy environment as a human right itself.
International recognition of the right by the UN puts much needed pressure on countries to conform. As of this writing, 156 countries include the right to a healthy environment in their constitutions, legislation, or regional treaties. Many others, including the United States, do not. The embrace by the UN should also result in other needed changes, among them safeguarding environmental defenders. The UN’s inclusion of environmental concerns within the human rights framework legitimizes those who are persecuted for their environmental activism. According to David Boyd, the current UN Special Rapporteur on human rights and environment, “[the resolution] will spark constitutional changes and stronger environmental laws, with positive implications for air quality, clean water, healthy soil, sustainably produced food, green energy, climate change, biodiversity and the use of toxic substances.”
The Committee’s resolution appointing a new rapporteur solely focused on challenges to human rights posed by climate change is, likewise, significant. Under the resolution, the UN expert possesses broad powers to: Promote awareness of the many adverse effects of climate change on the human rights of impacted communities; make recommendations and develop best practices to avoid, mitigate, and adapt to those effects; and coordinate and collaborate with other UN special rapporteurs, including the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes and the Special Rapporteur on the human rights to safe drinking water and sanitation.
Together, these two actions by the UN HRC, and the possible subsequent endorsement by the General Assembly of the right to a healthy environment, reflect a commitment by the international community to pursue a human rights-based approach to climate action.
According to Protect Defenders EU, a strikingly increasing trend of attacks on human rights defenders to undermine the rule of law continues, with as many as 520 documented violations recorded in 2021. Those among the most at risk are land and environmental defenders.
The most prevalent violations include judicial harassment, detention, killing, physical attacks, threats or harassment, and ill treatment in detention. In 2021, 248 violations of judicial harassment have been documented. Other atrocities include attempted murder, kidnapping, restrictions to freedom of movement and violations of privacy.
Between January 1, 2020, and June 30, 2021, the Special Rapporteurs overseeing human rights defenders sent twenty-eight complaints to twenty-two Member States regarding the long-term detention of 148 human rights defenders, emphasizing the need for States to abide by their relevant international commitments. Given the frequency of incidents, more needs to be done to protect human rights defenders and the rule of law globally.
Colombia continues to witness some of the greatest numbers of human rights violations against environmental activists. In previous years, the Special Rapporteur on the situation of human rights defenders conducted site visits to assess the situation of these defenders in Colombia. “From 2016 to 30 June 2019, Colombia was the country with the highest number of murders of human rights defenders in Latin America, according to the cases compiled and verified by the United Nations.” “On 24 November 2016, the Government of Colombia and the Revolutionary Armed Forces of Colombia – People’s Army (FARC-EP)” executed the Peace Agreement, which ended “more than five decades of armed conflict between the two parties.”
Despite the Agreement, government action to protect these defenders have not been effective. In April 2021, Human Rights Watch filed an amicus brief on killings of human rights defenders in Colombia, noting that governmental authorities’ “failure to exercise effective control over many areas previously controlled by” FARC has contributed to the violence. In other cases, the lack of state presence forces human rights defenders to play a visible role, assuming responsibilities usually performed by public officials, such as protecting at-risk populations. Human rights defenders are also at risk because of their support of initiatives following the Agreement, with some reportedly killed for supporting projects to replace drug-related coca-crops with food crops. A quarterly report confirms these statistics, showing 222 attacks against 209 human rights defenders between July and September of 2021 alone—a 21 percent increase from the previous year.
In October 2021, parties to the United Nations Economic Commission for Europe (UN/ECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, known as the Aarhus Convention, established an enforcement mechanism to protect environmental human rights defenders: a Special Rapporteur on environmental defenders. The Convention aims to improve access to information, justice, and public participation in environmental policy decisions. It constitutes the only international instrument protecting environmental democracy. Prior to its establishment, the UN HRC recognized the important role of environmental defenders in the protection of nature and sustainability efforts and their need for protection, given increasing attacks on such defenders in recent years. In 2020, Global Witness recorded 227 attacks on environmental and land defenders worldwide.
The Special Rapporteur’s role is designed to protect human rights defenders at risk of imminent persecution or harassment as a result of the exercise of their rights under the Convention. The Special Rapporteur has a number of tools for accomplishing this objective, including issuing immediate protection measures, making official public comments, and elevating matters to relevant international and regional human rights authorities. Under the Convention, the Special Rapporteur is set to take an active role in raising awareness of environmental defenders’ rights and will potentially coordinate with other international organizations and authorities to this end.
The Convention establishes the first mechanism specifically safeguarding environmental defenders within a legally binding framework under the UN and follows UN HRC recognition of the universal right to a clean, healthy, and sustainable environment this year. Although the Special Rapporteur will undoubtedly draw attention to the risks environmental defenders face, her efficacy, particularly given that the role is generally unfunded, remains to be seen.
June 16, 2021 marked the ten-year anniversary of the unanimous endorsement by the UN Human Rights Council of the United Nations Guiding Principles on Business and Human Rights (UNGPs). The UNGPs is the global authoritative framework for identifying, preventing, mitigating, and accounting for adverse human rights impacts by businesses. In July 2020, “the UN Working Group on Business and Human Rights (UNWG) launched a global project entitled ‘Business and human rights: towards a decade of global implementation’” (also referred to as “UNGPs10+/NextdecadeBHR”). In the initial “stocktaking” phase of the project, the UNWG solicited input from a wide variety of stakeholders on the progress, gaps, challenges, and successes observed in the first decade of the UNGPs’ implementation.
Based on the input it received, including a submission by the ABA that was coordinated by the IHRC, the UNWG issued a report in June 2021 that serves as the groundwork for the successive future-looking phase of the project, a “roadmap for the next decade.” The aim is to obtain broader implementation of the UNGPs before 2030, the target date for achieving the Sustainable Development Goals adopted by UN Member States in 2015.
From October 25-29, 2021, the UN held discussions on a draft treaty on Business and Human Rights. The Geneva discussions revealed both decreased momentum in finalizing the treaty, while, at the same time, increased interest in an alternative framework treaty. The treaty process was set in motion with a 2014 UN Human Rights Council resolution that created a working group (OEIGWG) and mandated the group to draft an international legally binding instrument. The OEIGWG held the seventh discussion session in October 2021 to review the third revised draft treaty, the fourth iteration of the proposed treaty.
Presently, there is a question as to whether the treaty has sufficient support to enter into force and be effectively implemented given that: (1) Only some seventy States, less than one-third of UN Member States, participated in the discussion session; (2) key industrialized States, including Australia, Canada, and Korea, did not attend the session; and (3) most of the proposed changes to the third revised draft came from countries in the global South. The structure of the draft treaty has stabilized, with few new substantive additions between the second and third revised drafts. But certain key provisions—particularly Articles 7 and 8 on legal liability and remedy, respectively, still require further clarification. In an implicit acknowledgement of the remaining challenges, the Chair-Rapporteur proposed convening a group of Ambassadors in Geneva, which would reflect a balanced regional representation, to act as “Friends of the Chair” to further advance the work on the draft.
In a departure from its previous refusal to participate in any discussion of the draft treaty, the United States attended the Geneva session. However, instead of contributing to refinement of the third revised draft treaty, the United States expressed support for an alternative approach, a framework treaty. A framework treaty would define a common objective and principles that would promote implementation similar to the World Health Organization Framework Convention on Tobacco Control and the UN Framework Convention on Climate Change. The International Chamber of Commerce, the International Organization of Employers, and BusinessEurope, one of Brussels’s largest and most influential lobby groups, also expressed support for a new framework convention.
Although the idea of an alternative draft treaty had been proposed, the IHRC brought the debate about the form and content of the treaty into the open with a roundtable of experts on July 27, 2021. During the roundtable, the pros and cons of each approach were elaborated upon and debated, thereby contributing to the discussion of the alternative approach during the OEIGWG’s October session.
A new version of the treaty should be prepared by the OEIGWG by the end of July 2022, and then discussed during its eighth session later in the year. Significant questions about whether the draft can be finalized and effectively implemented, and whether a framework treaty would be preferable, are becoming increasingly prominent in the discussions.
As is well known, the United States ended its two decades-long engagement in Afghanistan, withdrawing all U.S. forces prior to September 11, 2021. When it did so, the United States’ disengagement was characterized by some observers as chaotic and disorganized.
During the two decades the United States was engaged in Afghanistan, the U.S. State Department, the U.S. Department of Justice and the U.S. Department of Defense, as well as many non-governmental organizations, embarked upon efforts to strengthen the civilian institutions in Afghanistan. Those efforts included sharing best practices and anti-corruption efforts within the court system. Many Afghan women judges participated in the various programs offered by the U.S.-led group of agencies. Some of those judges even visited the United States on multiple occasions to participate in training programs.
Since U.S. withdrawal, these women judges and their families have been at greater risk for assassination, removal from office, and damage to their homes. When the Taliban took control of the Afghanistan civilian government in the final stages of the U.S. withdrawal, many of the prisoners who had been sentenced by those women judges were released. The women judges, as well as some of their male counterparts, were targeted for reprisal by those they had sentenced. As demonstrated by the assassination of two Afghan women judges in January 2021 as they were on their way to the Court in which they worked, the future of women judges in Afghanistan hangs in the balance. According to a statement issued by the International Association for Women Judges (IAWJ):
The IAWJ, however, remains very concerned that, due to the nature of their work and the past rulings they have made in criminal, anti-corruption and family courts, many of the women judges and their families will be in particular danger if the Taliban reach Kabul. These dangers are exacerbated by their gender and the likelihood that persons they have sentenced will be released from prison.
The IAWJ has been at the forefront of efforts to assist those women judges and their families seeking safe passage from Afghanistan. With the United States and coalition forces no longer in place to support the justice process they had worked for decades to establish, the judges, now targets of those they had sentenced, were desperate to find safety.
On July 30, 2021, roughly one month before the United States departed Afghanistan, the United States Department of State opened its Special Immigrant Visa Program. As part of the “Emergency Security Supplemental Appropriations Act, 2021,” 8,000 additional Special Immigrant Visas (SIVs) for Afghan principal applicants were made available for individuals who were employed by or on behalf of the United States during its two decades in the country. A total of 34,500 visas for Afghans have been allocated since December 19, 2014.
While the Special Immigrant Visa program was of some limited assistance to those who were employed by the United States, including some who provided extensive and valuable services as interpreters during the U.S. engagement in the country, the judges—especially women judges—who had participated in U.S. training and education programs found little support for their applications for U.S. visas. Non-governmental organizations like the IAWJ have worked tirelessly to obtain safe passage for women judges to countries willing to provide them with visas for legal entry. The assassination of two Afghan women judges in January 2021 is viewed as a precursor to the violence the women judges now fear as reprisal since those they convicted have been set free by the Taliban who are now running the country.
In October 2021, a senior U.S. State Department official, Elizabeth Jones, was appointed to oversee efforts to relocate those to whom the United States has “a special commitment,” as well as the efforts to resettle those who were relocated to the United States in the final days of the U.S. military presence in the country.
Organizations such as the IAWJ and Too Young to Wed are taking donations to help get these women judges out of Afghanistan. As of September 28, 2021, at least 220 women judges were known to be in hiding in various locations fearing assassination, reprisal, and violence to them and to their families. Several law firms, such as DLA Piper, are mobilizing pro bono attorneys to help in facilitating visas for women judges and their immediate families. During an October 2021 webinar sponsored by the ABA International Law Section’s IHRC, Women’s Interest Network Middle East Committee, and the ABA Civil Rights and Social Justice Section, a Call To Action was issued asking individuals to contact their congresspersons to ask what is being done to get the Afghan women judges out, and to urge them to pass the Afghan Adjustment Act, which makes it easier for Afghans arriving in the United States to apply for legal permanent residence.
The Rohingya, one of the most marginalized populations in the world, continue to face persecution. There are some general statements that can be made about most of the Rohingya, although there is still deep disagreement about them. Many originated from Bengal and were brought to Myanmar by the British in the 1800s and many are Muslim by faith. Some people indigenous to Rahkine State are included.
Under the British, the Rohingya had the same rights as other Burmese citizens. During World War II, the Rohingya fought with the British, while many of their Buddhist counterparts sided with the Japanese. Following the war, when Myanmar became independent from Britain, the Myanmar government enacted the Union Citizenship Act, identifying the ethnicities who could apply for citizenship; Rohingya were not included. In 1962, under General Ne Win, all persons in Myanmar were required to obtain national registration cards; subsequently the Rohingya were issued “foreign” identity cards in 1974. The citizenship law adopted in Myanmar in 1982 excluded the Rohingya as they were not identified as one of the country’s 135 recognized ethnic groups, formalizing their status as stateless.
From 2017-2018, the Myanmar military (Tatmadaw) conducted a genocidal campaign against the Rohingya in Rakhine State, ostensibly in response to attacks by the Arakan Rohingya Salvation Army (ARSA). More than 900,000 Rohingya fled Myanmar to Bangladesh to escape the Tatmadaw. In response, the United Nations launched the Independent International Fact Finding Mission on Myanmar, as well as the Independent Investigative Mechanism for Myanmar (IIMM). According to Nicholas Koumjian, Head of the IIMM, his organization has collected more than 1.5 million separate pieces of evidence against the Tatmadaw establishing crimes against the civilian population, and is sharing the information with the International Criminal Court in its probe of “crimes against the Myanmar’s Rohingya Muslim minority and the case at the International Court of Justice brought by Gambia on behalf of the Organization of Islamic Cooperation accusing Myanmar of genocide against the Rohingya.”
Refugee status for the Rohingya is not a new thing, since they have been forced to flee persecution in Myanmar multiple times. Not all the Rohingya refugees are in Bangladesh; as many as 40,000 Rohingya refugees are in India. The Indian government seeks to deport them, perceiving them as a “threat to national security.” One of the more publicized cases of 2021 included an attempt to deport a 14-year-old Rohingya girl to Myanmar, a decision made following the Indian Supreme Court’s ruling in Mohammad Salimullah v. Union of India. The Salimullah Court noted that India was not a party to the 1951 United Nations Convention on the Status of Refugees. That Convention includes the principle of non-refoulement, prohibiting the return of an individual at risk of “torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm” in the country to which they are being returned. During the Salimullah hearing, Chief Justice Bobde commented “[p]ossibly that is the fear that if they go back to Myanmar, they will be slaughtered. But we cannot control all that.” The Court’s written decision followed the same logic, “[r]egarding the contention raised on behalf of petitioners about the present state of affairs in Myanmar, we have to state that we cannot comment upon something happening in another country.” Myanmar refused to accept the girl and India was forced to take her back to Assam where she had been living.
In 2021, to reduce the overcrowding in its refugee camps, Bangladesh began relocating Rohingya to the island of Bhasan Char in the Bay of Bengal and plans to move as many as 100,000 refugees there. Bhasan Char might indeed provide better services to the refugees but could not be more isolating. There are also significant environmental considerations in using the island as a refugee camp. As of October 2021, Bangladesh had already relocated over 19,000 Rohingya.
Rohingya in the Bangladesh camps suffer many threats, including from COVID-19. In August 2021, fortunately, some of the refugees in the camps began receiving the COVID-19 vaccine. Because of conditions in the camps, social distancing and masking is not possible; vaccines are their only hope to survive the disease. Another peril in the camps is the rise of militant groups. Assassins are targeting those that speak out against the militant groups. Among the groups targeting civilians is ARSA, the paramilitary group that launched the attacks on military outposts in Myanmar in 2017, sparking genocidal retaliation by the Tatmadaw.
On a more hopeful note, on November 18, 2021, the UN General Assembly Third Committee adopted a draft resolution entitled The Situation of Human Rights of Rohingya Muslims and Other Minorities in Myanmar. This resolution calls upon the Tatmadaw to take steps to ameliorate the situation faced by Rohingya, including calls to end all violations of international law; ensure the protection of human rights, investigate the atrocities that have occurred, ensure the safe return of the Rohingya, review and reform the 1982 Citizenship Law as it relates to the Rohingya restoring them to citizenship; dismantle the camps in Rakhine State for internally displaced persons; and allow them to return to their homes. While these goals are laudable, what the Rohingya need most is action by international bodies to obtain accountability for the genocide of the Rohingya, to safely return the Rohingya to Myanmar, and to restore Myanmar’s democratically elected government.
Article 25(1) of the Universal Declaration of Human Rights, which is binding on all United Nations (UN) Member States, recognizes the right to health and access to medical care as fundamental human rights. Article 12 of the International Covenant on Economic, Social, and Cultural Rights mandates that all persons should enjoy the highest attainable standard of physical and mental health. The UN Human Rights Committee (UN/HRC), which oversees implementation and interpretation of the International Covenant on Civil and Political Rights, has called on States to take necessary action to provide access to life-saving medicines in order to fulfill the inherent “right to life” provisions of Article 6. Meanwhile, Goal 3 of the UN Sustainable Development Goals seeks to ensure healthy lives and promote the wellbeing of individuals at every age through “access to safe, effective, quality and affordable essential medicines and vaccines for all.”
The COVID-19 pandemic has underscored how the basic human right to health is honored more in the breach than in practice. Pledges to provide vaccine dosages for free through the multilateral COVAX Facility for at least twenty percent of people in the world’s poorest countries in 2021 fell short. Instead, many governments shortsightedly prioritized supplying domestic markets, as if the coronavirus respects borders. A similar phenomenon occurred with medications to treat COVID-19 and the provision of personal protective equipment, such as face masks, and health-related equipment and technology.
In May 2021 the Biden administration announced support for an Indian and South African-led effort to waive protections guaranteed by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) for COVID-19 vaccines, the waiver is presently opposed by, among others, the European Union, Switzerland, and the United Kingdom. A waiver is also impracticable given most developing countries do not have the manufacturing and technical capacity or finances to produce vaccines. Accordingly, a waiver by itself might only exacerbate dependence on India, for example, which forced its vaccine manufacturers to breach obligations to the COVAX Facility in response to the Delta variant amid an explosion in Indian infection rates earlier in 2021. A waiver could also exacerbate the current backlog in accessing limited supplies of the active pharmaceutical ingredients needed to produce vaccines.
A more effective Biden policy would leverage the billions of dollars in taxpayer money the U.S. government directed to companies to successfully develop COVID-19 vaccines. Such a move would force pharmaceutical companies to either license the knowledge to manufacturers in developing nations through technology transfer agreements and/or pledge a portion of their output to poorer nations for free or below cost. Breaking patents at the beginning of their life cycle, however, could seriously erode the incentive for future research and development of new and innovative medical treatments. Licensing agreements are also compatible with the 2001 Doha Declaration on the TRIPS Agreement and Public Health that permits the issuance of compulsory licenses on patents in response to a public health emergency. Governments can use this flexibility to authorize local manufacturing of a medication or vaccine upon adequate remuneration to the non-consenting patent holder. In addition, following amendments that entered into force on January 23, 2017, Article 31bis (and an affiliated Annex and Appendix) to the TRIPS Agreement provides the legal basis for WTO members to grant special compulsory licenses exclusively for the production and export of affordable generic medicines and vaccines to other member states that cannot domestically produce them in sufficient quantities. In May 2021, for example, Bolivia informed the TRIPS Council it intended to import a generic version of Johnson & Johnson’s COVID-19 vaccine made by a Canadian company under a compulsory license.
Efforts by Latin American countries such as Argentina, Brazil, Mexico, and Cuba to develop new COVID-19 vaccines may have a bigger impact in widening access to vaccines in developing nations than a TRIPS waiver or even compulsory licenses. In August 2021, China’s Sinovac announced plans to construct an R&D facility in the northern port city of Antofagasta, Chile, as well as a manufacturing plant in Chile’s capital, Santiago, to produce vaccines, including its CoronaVac, for distribution throughout South America. Chinese vaccines helped make Chile currently among the world’s top ten countries with the most vaccinated residents. Cuba also enjoys that distinction, but as a result of domestically produced vaccines.
On January 1, 2021, Congress overrode a Presidential veto to enact the Corporate Transparency Act (CTA) as part of the Anti-Money Laundering Act of 2020 (AMLA). The CTA is landmark legislation, requiring most privately held U.S. for-profit entities with twenty or fewer employees to report—and to update thereafter—certain personal identification information of the ultimate beneficial owners of twenty-five percent or more of the entity. Reports are to be made to the U.S. Financial Crimes Enforcement Network of the Department of the Treasury (FinCEN), which will maintain the information in a secure, nonpublic database available to law enforcement and government regulators under certain conditions.
The CTA was adopted in response to perceived misuse of corporate anonymity by persons engaging in money laundering, financing of terrorism, human trafficking and human rights abuses, tax fraud, corruption, and acts harming U.S. national security interests, among other things. Some of the salient terms and provisions of the CTA are discussed below.
Beneficial Owner: Beneficial owners for purposes of the CTA are individuals who (i) exercise substantial control over an entity, or (ii) own or control twenty-five percent or more of the ownership interests in the entity.
Reporting Company: Reporting companies include most small, privately-held, for-profit corporations, limited liability companies, “or other similar” entities formed by filings with a state secretary of state (or similar office of an Indian Tribe). There are twenty-three enumerated exceptions, which exclude, among others, listed companies, regulated financial sector entities, public utilities, trusts, non-profits, and certain larger entities with a physical presence in the United States (entities with (i) more than twenty full-time employees in the United States, (ii) more than five million in gross revenue in the prior year, and (iii) an operating presence at a physical office in the United States). The CTA will apply to non-U.S. entities that register to do business in the United States.
Information required: Reports must include for each beneficial owner and “applicant”: (i) full legal name, (ii) date of birth, (iii) business or residential address, and (iv) a unique identifying number from certain identification documents: (A) a U.S. passport, (B) an identification document issued by a state, local, or Tribal government, (C) a state driver’s license, or (D) if the individual does not have one of those documents, a foreign passport. Information must be updated no less than once a year.
Access to Information: FinCEN is required to maintain the information in a secure, non-public database, which will be available to: (1) federal agencies engaged in national security, intelligence, or law enforcement activities; (2) state, local, or Tribal law enforcement agencies, if a court authorizes the agency to seek the information in a criminal or civil investigation; and (3) financial institutions subject to customer due diligence requirements, with the consent of the reporting company (and under certain circumstances, to federal functional regulators of financial institutions). Information may also be provided to foreign law enforcement agencies, prosecutors, or judges pursuant to treaty, agreement, or convention, or in response to an official request from enforcement, judicial, or prosecutorial authorities in “trusted foreign countries.” Requesting agencies will be required to establish systems for information security and training and audit trails to verify that requested information has been used appropriately. Unauthorized use or disclosure of the information is subject to civil penalties of up to $500 for each day the violation continues or is not remedied, and criminal fines and imprisonment that can range up to $500,000 and ten years in prison. By contrast, failure to report can result in civil penalties of up to $500 per day, and fines of up to $10,000 and two years in prison.
Effective Dates: Treasury was under an obligation to promulgate regulations for corporate ownership reporting not later than one year after the CTA comes into effect—i.e., by January 1, 2022. The regulatory project, however, is ongoing, with a first set of regulations proposed by Treasury for comment in December 2021, and at least two further sets of regulations still to be proposed before the CTA disclosure system can become effective. A reporting company formed or registered after the eventual effective date of the regulations should file its report with FinCEN at the time of formation or registration. Reporting companies formed or registered before the effective date of the regulations will be required to file their reports not later than two years after the effective date of the regulations.
FinCEN Customer Due Diligence Rule: The FinCEN Customer Due Diligence (CDD) Rule already requires “covered financial institutions to identify and verify the identity of the natural persons (known as beneficial owners) of legal entity customers who own, control, and profit from companies when those companies open accounts.” The CTA extends the CDD Rule’s beneficial ownership identification and verification regime from a customer-by-customer collection of information by financial institutions to a new national database, albeit the new national database will only cover the small, privately-held, for-profit entities that are “reporting companies” under the CTA. The CTA requires FinCEN to bring the CDD Rule “into conformance” with the CTA within one year after promulgating the CTA regulations.
The Universal Periodic Review (UPR) is a unique mechanism of the UN Human Rights Council where the human rights record of a country is reviewed by member States. The U.S. government participated in the UPR process in 2011 and 2015, and was reviewed again in November 2020. The Trump administration did not submit a mid-term report detailing implementation of recommendations from the last UPR, as is the norm, and delayed in providing its full-term report, which was not submitted until August 2020.
In addition to the government reports, U.S. civil society organizations submit “stakeholder” reports, which attempt to present the UN member States with an accurate picture of the human rights situation, and share information and evidence about human rights violations in the United States. For the 2020 UPR, there were more than 100 stakeholder reports discussing a range of human rights issues, including the right to health, the right to water, mass incarceration, systemic racism, immigration, and violence against women. After submission of such stakeholder reports, civil society organizations may organize meetings with embassies and missions to lobby governments. This is one method to ensure that specific human rights issues are addressed during the review session or when questions are presented to the State under review in advance of the review session. Advocates also articulate recommendations when meeting with embassies and missions. Some of these embassies and missions utilize these suggestions when proposing recommendations to the member State under review. The recommendations made by member States during the review raise awareness of those issues and put pressure on the State under review to acknowledge the issues and respond to them.
The U.S. government’s human rights record was reviewed on November 9, 2020. Over 100 countries made comments and submitted 347 recommendations to the US government regarding human rights violations in the United States. Notably, there were numerous recommendations concerning systemic racism, reproductive rights, immigration, LGBTQ rights, racial profiling and police violence, and ratification of treaties.
On March 17, 2021, the Biden Administration accepted in whole or in part a total of 280 recommendations out of the 347, indicating a commitment to implementing those recommendations. Time will tell if that commitment will be fulfilled, but the acceptance of the recommendations is a step forward for the realization of human rights.
The Committee Editor is Constance Z. Wagner. Section authors are: Daniel L. Appelman (Section II.A.); Cailen LaBarge, Sara Sandford, and Cyreka Jacobs (Section II.B.); Hind Merabet and Dr. Corinne E. Lewis (Sections III.A. and III.B.); Linda S. Murnane, Colonel and Wendy Taube (Section IV.); James Taylor (Section V.); Thomas A. O’Keefe (Section VI.); John Regis Coogan (Section VII.); and Kerry McLean (Section VIII.).
