Thursday, July 20, 2017
The United Nations Human Rights Council has appointed Professor Fionnuala Ní Aoláin, Professor at the University of Minnesota School of Law, as the U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.
In this role, Ní Aoláin will be charged with making recommendations on safeguarding human rights while countering terrorism and, at the request of states, providing advisory services or technical assistance on such matters; investigating and reporting on alleged violations of human rights and fundamental freedoms; identifying and promoting best practices on counterterrorism measures that respect human rights and fundamental freedoms; and reporting regularly to the Human Rights Council and the U.N. General Assembly, among other duties.
A recent article by Ní Aoláin, titled "The War on Terror and Extremism: Assessing the Relevance of the 'Women, Peace and Security Agenda,'" provides a thoughtful and critical assessment of feminist movements in this arena, perhaps a precursor to some of the thematic work that she will undertake as Special Rapporteur.
Wednesday, July 19, 2017
The animal welfare and animal rights movement in the US has accelerated during the past two decades. But the US is not close to expanding legal rights to animals as has been done elsewhere.
In 2008, the Spanish parliament extended rights to chimpanzees, gorillas, orangutans and bonobos. This animal measure was not the first for members of the European Union. In 2002, Germany extended rights to animals through its constitution. In 1999, New Zealand passed measures granting protective rights for apes. While some argue that legal rights should not be limited to human-like species, there is no question that these measures are light years ahead of any US initiatives.
Most of the US protections of animals comes from a perspective of correcting cruel human behaviors toward them. Statutes reflect the intention to restrain human actions toward animals, but they do not reflect the perspective that, like humans, animals have inalienable rights. Struggling to preserve the rights that we have, it is unlikely that rights for humans will expand during the next few years. Any movement to recognize, on a formal basis, inherent rights of animals is not likely to be successful in the near future.
In a 2014 essay, William Shultz, former director of the ACLU, acknowledged that he was wrong when he earlier argued that "no rational person would believe that animals could claim the same kinds of rights as humans." He called upon us to examine which creatures should have a claim to rights.
Given the current lack of understanding of human rights on the federal level, animal rights advocates, like human rights advocates, will continue to be most effective on the international and local levels.
At the recent G-20 meeting, for example, the leaders adopted "High Level Principles on Combatting Corruption Related to Illegal Trade in Wildlife and Wildlife Products". While again the principals seek to protect animals from human cruelties, continued recognition of their need for protection may lead to the dialogue on whether protective action is at the same time acknowledging innate legal rights of animals.
Tuesday, July 18, 2017
Last week, Education Secretary Betsy DeVos, met with selected groups to hear from stakeholders on Title IX processes when sexual assault is alleged. First she met with those who feel Title IX discriminates against males who are accused. The following day she met with survivor advocates who want the current state of hearings to continue. The controversy revolves around the "Dear Colleague" letter sent in 2011 to colleges and universities outlining a list of standards to be employed, and in some cases, aspired to, when universities deal with sexual assault complaints. Among other things, the letter instructed campuses to use the "preponderance of the evidence" language when deciding whether or not the accused student is responsible for the alleged behavior.
The letter gave other instructions, however, use of the lower standard of proof is the one most challenged by those who advocate for the accused. Criminal lawyers often demand that the "beyond a reasonable doubt" standard should be used at Title IX hearings. Title IX hearings are civil in nature and can have different goals than either the civil or criminal justice systems. The safety of the complaining students as well as the community, is paramount, as is education of the student found responsible in an attempt to avoid future troubling behavior. The process views itself as more remedial than punitive.
There is no doubt that some results of Title IX hearings are bewildering, and others have denied basic due process rights for the responding student. Those deficiencies must be corrected. But the problem is not the standard of proof. Nor is the answer to turn a quasi-civil proceeding into a criminal one. The answer to those deficiencies is to enforce training standards and have access to an effective appeals system. To raise the standard of proof to the criminal one is to revert to a system where the complaining student will rarely succeed.
So what do we expect from Secretary DeVos? We know that the Obama administration's guidance on transgender students was withdrawn. We know that DeVos initially opposed withdrawal of the regulation but ultimately ceded to Attorney General Sessions. We have a president who admits to sexually assaulting women. We cannot expect an objective assessment of what a fair Title IX decision making process would look like.
We can expect additional barriers to successful Title IX claims. Whether that will be accomplished through raising the standard of proof, creating a new one, or some other change, we can expect diminished rights for complaining witnesses. After all, before the ink was dry on his presidential appointment to head an education task force, Chairman Falwell announced that one target of his work will be to limit the federal government's reach into higher education's handling of Title IX obligations.
Secretary DeVos deserves credit for her defense of transgender policies and for any empathy she might have for survivors of campus assault. The predominant criticism of her is that she does not fundamentally understand Title IX. But no matter, the boys are in charge.
Monday, July 17, 2017
West Virginia College of Law has announced a new Appalachian Justice Initiative to take on a range of issues facing the region. Chief among the Initiative's concerns are environmental issues and workplace conditions, both of which have been framed as human rights issues by West Virginia faculty participating in the new Initiative.
In the April 2017 issue of the University of Miami Law Review, Professor Anne Marie Lofaso argued that the "natural human rights" standard should serve as a floor for labor practices. Her six-part analysis ranges from a historical review of labor law through an analysis of relevant international law and the meaning of citizenship.
Meanwhile, in a July 14, 2017 essay, West Virginia Professor Nicholas Stump asks the question "Is a health environment a human right?" Stump explains that "In my work, I have proposed reframing Appalachia's concerns as a struggle for "environmental human rights" – the idea that all people are entitled to a healthy environment. Characterizing these problems as violations of environmental human rights can open up new and more robust legal remedies. It also means that environmental harms will be viewed more vigorously as moral issues."
In announcing its new initiative, the College of Law stated that "Law schools have been at the center of a sustained—and often heated—debate concerning the relevance of legal education and scholarship. Moreover, this election cycle has cast a bright light on the decades-old fact that our economically disenfranchised neighbors, generally, and our Appalachian brothers and sisters living in poverty, specifically, have been left behind by the entire American political establishment."
The West Virginia faculty believe that "law schools, legal education, and legal scholarship can and should be relevant again” and that they have an important role to play in improving the welfare of the people of Appalachia. Kudos to the West Virginia law faculty as they make a commitment to human rights in their own backyard.
Sunday, July 16, 2017
By guest blogger Prof. Justine Dunlap
The value of an education has been proven time and again by those who have used it to climb out of poverty, escape violence, or as a ticket to a place, a job, or a life that exceeds that which might have been otherwise predicted. Moreover, the right to education is a fundamental human right.
The right to education is often lacking in impoverished countries and is particularly violated when it comes to educating girls. The international movement to educate girls received dramatic attention several years ago when the Pakistani teen Malala Yousafzai, in her refusal to be deterred in her determination to get an education, was shot in the head by Taliban gunmen. Malala’s on-going courage won her a Nobel Peace Prize and shone much-needed light on the need to educate girls.
In this country, notwithstanding our economic advantages and principles of gender equality, our public schools fail many of our children. And, frankly, progress does not seem nigh. Charter schools, once and still deemed by some to be the answer, have results that vary significantly from state to state. Further, additional policy changes are expected under current Secretary of Education, Betsy DeVos. The changes are not expected to favor public schools.
However, during this past term, the United States Supreme Court sent a ray of hope in the area of special education law. A unanimous Supreme Court ruled in favor of children and parents, and against the school district when interpreting a provision of the Individuals with Disabilities Education Act (IDEA).
Thirty-five years ago, in the seminal special education case Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, the Supreme Court declared that under the IDEA, an individualized education plan (IEP) must be reasonably calculated to provide the child with “some educational benefit.” Only then would the IEP satisfy the substantive right to the free and appropriate public education anticipated by IDEA.
This term, in Endrew F. v. Douglas County School District, the Court added clarity on how to determine whether an IEP is reasonably calculated to afford a child “some educational benefit.” In the decision being appealed in Endrew F., the 10th Circuit had interpreted “some benefit” to mean that an IEP was sufficient provided that it was calculated to let the child make progress that was “merely….more than de minimis.” In an interesting twist, this case came down during the Senate Judiciary hearings on Supreme Court nominee Neil Gorsuch, a sitting 10th Circuit judge who had applied the merely more the de minimis standard.
A unanimous Supreme Court reversed the 10th Circuit, holding that “merely…more than de minimis” was too low of a standard to satisfy the IDEA requirement of a free, appropriate public education. The Court said that a child’s IEP must reflect an educational program that is ”appropriately ambitious in light of [the child’s] circumstances.” This standard, the Court declared, while admittedly general, is “markedly more demanding” than the merely more than de minimis standard.
In so ruling, the Court raised the bar as to what the law requires to provide a free, appropriate public education for children with disabilities. That is a victory for children and their right to be educated.
Thursday, July 13, 2017
During the Obama administration, humanrights.gov served as a one-stop site to find US government statements and official documents involving both domestic and international US human rights initiatives. The stand-alone web address signaled that human rights was a significant focus of the administration's attention, and it increased awareness and transparency of US human rights stances.
Others may have noticed that since January 20, the site has been sluggish in responding and that the postings have slowed down considerably. Some content that was once on the site -- such as the US implementation plan for the 2010 UPR review -- has disappeared completely. Now we learn that on August 1, the remaining contents of the site will migrate to state.gov and Humanrights.gov will be no more. The new site is the State Department's Bureau of Democracy, Human Rights and Labor, headed by Virginia Bennett, Acting Assistant Secretary. It appears that the Humanrights@state twitter feed will continue, as will the Bureau's facebook page. Here's the complete announcement:
"Starting on August 1, 2017, you can find all U.S.-government related human rights content at state.gov/j/drl/. You can also follow us on Facebook (https://www.facebook.com/stateDRL/) and Twitter (https://twitter.com/State_DRL)."
Wednesday, July 12, 2017
We note two significant local human rights developments in recent weeks, NEITHER of them from the coasts:
First, on July 5, Dallas County became the first county in Texas, and only the second county in the United States, to declare itself a Human Rights County. According to Dallas County Judge Clay Jenkins, sponsor of the measure, “Human Rights abuses occur in our community, our country and our world every day. We must lead at the local level. We can’t do everything but we can all do something.” Dr. Rick Halperin, director of SMU's human rights program, added “The action taken by the county commissioners will mark a historic turning point in this County’s recognition of Human Dignity and Human Rights for all those who live, work, and visit here. This really puts us on the road to being the global jurisdiction we purport to be.” The resolution came one year after a historic Human Rights Dallas meeting, where local leaders met at SMU to discuss how human rights approaches might improve the welfare of Dallas residents, and how Dallas might take national leadership in expanding human rights,
Second, in May 2017, Athens, Ohio hosted its first ever "Ohio Human Rights Tribunal," addressing the human rights issues raised by fracking. Four judges heard over six hours of testimony from the community. Another tribunal hearing is expected in Ohio later in July. These hearings are held under the auspices of the Permanent Peoples' Tribunal on Fracking, which is gathering testimony to submit to the United Nations.
Tuesday, July 11, 2017
Any exploration of changing human rights advocacy starts with exploring the intentions of the advocate.
Most of my clients have experienced gender violence. Most typically my clients have additional barriers due to color, immigration status, disability and poverty. Their lives are burdened in ways that I can only imagine.
I, on the other hand, live very differently. Being a law school professor is a privileged life. I have the additional freedoms that whiteness brings. While empathy is important, effective advocacy for those unlike ourselves requires more.
I must be careful not to bring any arrogance to my advocacy; particularly where clients may not challenge me for fear of alienating the person who can navigate them through a complex and often hostile system.
So how has my advocacy changed? I am more mindful than ever to reflect on my own motivations. I am more mindful of the consequences of my actions, including my advice to clients. I must consider the newly changed circumstances of my clients' lives. My clients have become even more vulnerable. Immigrants are presumed to be undocumented and even those who are not experience harassment and violence. Risk of deportation has multiplied since January. Gender harassment has increased, as it has for all less powerful social groups. But what is causing much increase in my clients' underlying fear is that harassment and abuse are gaining acceptance as a cultural norm.
Fear in some form has been a near constant in my clients' lives. But the fear was more targeted: fear of reprisal from an estranged intimate partner or fear of being deported should they engage the legal system. While specific fears remain, a more generalized fear has sprouted from the uncertainty that the cultural shift has brought. Increased street harassment is a good example of one source of heightened generalized fear. So I must be mindful not to judge my clients' decisions made in light of these concerns and I must listen even more carefully to their words. Advising clients of what is or is not a reasonable fear has become more difficult. All of our experiences are shifting in the face of this unleashed hostility and incivility.
Mindfulness has never been more important in human rights advocacy.
Monday, July 10, 2017
Editor's Note: This is the second post in our Scholarly Voices symposium on the current state of human rights advocacy.
Sital Kalantry writes 'On Tyrany Lessons from the Twentieth Century"
Many people have read or heard about history scholar Timothy Snyder’s popular book, On Tyranny: Twenty Lessons from the Twentieth Century. Drawing largely from the history of the Nazi regime’s rise to power and brutal genocide campaign, he created a list of twenty concrete actions that can be taken by people living under regimes bordering on authoritarianism. Among other things, he invites readers to seek out the truth (both online and offline), be aware of dangerous language, defend institutions, and not obey the government in advance.
These are all pertinent lessons for us today. Most of his lessons are directed towards people in the “majority” group who would oppose an authoritarian government. For example, his Lesson #12 is that people should “Make eye contact and small talk.” Here Professor Snyder’s point is that during Nazi Germany and when fascism prevailed in Italy, oppressed groups reacted to how their neighbors treated them. Therefore, he advises his readers to “affirm everyone” because you cannot be sure “who feels threatened in the United States.”
Although Professor Snyder offers advice for the group of people who will not be the targets of the authoritarian regime, I would like to offer advice to those who will be. For immigrants, of whom I am one, I think we should “interact and educate.” Many Americans today fear that immigrants are taking away their jobs and committing crimes. Through broad executive action, many immigrants are being deported and foreigners denied entry into the United States. Most people who support the executive’s policies may never have met with or talked to an immigrant. However, many anti-immigration proponents resist deportation when their own community members are involved. Stories abound like the one involving a Trump-voting community that rallied around an undocumented restaurant owner who was threatened with deportation. It is easy to demonize people you do not know, but harder to demonize people you do know. While I would have resisted this burden at another point in my life, I believe today that we have to use every opportunity we can to positively interact and educate others in our communities to help breakdown stereotypes. I live in a diverse and liberal college community surrounded by rural New York. While I do not always follow this principle in my daily life, it is a goal to which I aspire. I think it will help to bridge the voids that divide our country.
Sunday, July 9, 2017
Editors' Note: This week we run a brief symposium on changes in human rights advocacy in the new era. We encourage contributions from additional law professors on this topic. We begin with this contribution from Lauren Bartlett.
Threats to human rights have reached a crisis point in the United States, especially for our most vulnerable communities. Recently, more than thirty “Anti-Sharia” or “Anti-Muslim” marches were held across the U.S., the Trump Administration threatened to withdraw from the U.N. Human Rights Council, and ICE raids continue at an alarming rate.
It is difficult to be strategic while attempting to function in crisis mode. There is too much to digest and react to on a daily basis, both on a professional and personal level. Moreover, many U.S. human rights advocates are central players in advocacy organizations and larger movements concentrating on specific legal issues and agendas. Repeatedly having to face daily emergencies creates immediate demands on advocates’ time and pulls resources away from a human rights focus.
Regardless of, and because of, these pressures, U.S. human rights advocates need to take the time to strategize about where to focus their limited time and resources in the coming months and the year ahead. Some advocates have been theorizing and writing on this topic. Yet there does not seem to be any consensus so far.
Some questions to consider in developing human rights advocacy priorities could be:
- What does effective advocacy for human rights in the U.S. look like in 2017—18?
- Which human rights strategies and methodologies will be most effective in the current environment?
- What should be the priorities in terms of collaboration among lawyers and other advocates?
- Which best practices and lessons learned are most useful in the current environment? Will the lessons learned from 2008-2016 be applicable, or would it be better to go further back and examine lessons learned during the reviews in 2005-2007 with the Bush Administration?
Below are my preliminary thoughts in response to these questions.
Priority should be given to lifting up the voices of those directly affected by human rights violations and continuing to build the human rights movement through education and advocacy campaigns. In addition, it is likely that the most effective human rights advocacy will occur at the local and state level.
The Trump Administration and the U.S. Congress are likely to ignore all recommendations from human rights bodies, and it is not likely that any Federal agency will embrace human rights, as was seen previously. On the other hand, civil society movements may flourish (with community education, leadership, and resources) around Federal rejection of the issues or recommendations. In addition to civil society, some city and state governments are showing a willingness to embrace international obligations and resist the Federal Government’s rejection of international obligations, which is a testament to the terrific groundwork laid by human rights advocates and others in recent years.
In terms of my immediate plans for my own human rights advocacy, physically situated as I am at a small law school in a small town in the heart of the conservative Midwest, I plan to focus on human rights education of law students, colleagues and courts, using the language and principles of human rights when citation to human rights instruments and laws is too off-putting. I will also focus on giving voice to those directly affected, through court cases and other advocacy, as well as building solidarity with individual clients and local community groups.
What are your human rights advocacy priorities for the coming months and why? It would be great to hear from a chorus of others.
Thursday, July 6, 2017
In prior posts, Martha Davis announced that Mountain View (CA) city council passed a resolution designating the municipality as a human rights city. Prof. Francisco Rivera, informed us of concerns and frustrations that arose during the city council debate and the important work that his students did in educating council members on the human rights framework.
In late May, Mountain View mayor, Ken Rosenberg, discussed the challenge of implementing the vision of a human rights city. In an op-ed opinion, Rosenberg announced that Mountain View would be home to an institute whose goal is to create 100 human rights cities all over the world “based on learning and integrating human rights into every aspect of our daily lives”. Beautifully said.
Mayor Rosenberg credited the work of The People’s Movement for Human Rights Learning for educating him and others to the human rights way of life. Mayor Rosenberg also acknowledges that The People's Movement has the expertise to implement the vision of the new institute.
You may read the complete op-ed here.
Wednesday, July 5, 2017
We join others in the civil and human rights community in mourning the death of our hero, Norman Dorsen. Distinguished professor at NYU Law School, former chair of the Lawyers Committee for Human Rights, founder of the Society of American Law Teachers, winner of the Eleanor Roosevelt Human Rights Award . . . these are only a few of Professor Dorsen's contributions to civil rights and human rights in the U.S.
For more reflections on his remarkable career as a scholar and advocate, we recommend the collection of tributes published by NYU Law School, available here. Hopefully, many readers will want to know more, perhaps pursuing historical scholarship on the movements and cases in which Dorsen was involved or to analyze more closely a lawyer's life well lived. For those readers, Professor Dorsen's papers relating to his political and scholarly work are in NYU's repository; a guide is available here.
Tuesday, July 4, 2017
This blog posted earlier about the psychologists who developed and promoted "enhanced interrogation techniques" at the request of the US government. We last reported that the suit survived a motion to dismiss. The suit is now in the discovery process, and depositions have begun. What is becoming clear is the perversion that has been used in both applying the torture and the use of shaming views of masculinity to coerce interrogators into using the techniques. One prisoner was placed underground in a plastic bag. Waterboarding, sleep deprivation, nudity, stress positions, placing men in small boxes for long periods of time and use of insects were some of the implemented tortures that yielded no useful or new information.
Those forced to implement the torture were themselves subjected to psychological abuse. Some soldiers conducting the torture were told that a nuclear bomb was about to be dropped on the United States and obtaining information was urgent. When one soldier resisted, after seeing the effects of the torture, he was called a p___y.
The defendant psychologists are claiming the defense of never having met those who were tortured. They claim that despite recommending the use of torture, they never designated the specific individuals to be subject to the torture. How then could they be liable to these men and to the estate of one man who died?
The case raises no new theories of liability but does speculate on whether the defendants will succeed in their use of Nuremberg-style defenses when the psychologists were not soldiers acting under military orders. The trial is scheduled to begin on September 5th in Spokane, Washington. You may click here to access The Daily podcast on this topic.
Monday, July 3, 2017
In need of some perspective this 4th of July? Check out Eleanor Roosevelt's "My Day" newspaper column from July 4, 1945, here, focusing on the central importance of human rights on Independence Day.
The column certainly shows that times can blind. For example, Roosevelt makes the fictional claim that "because our continent was such a vast one to develop, there was room for the development of property and its protection and we did not greatly harm the rights of human beings." Further, she un-self-consciously reinforces the notion that men alone are the world's actors, beginning with "[a]ll over the world our men will observe the Fourth of July."
At the same time, she argues that the Declaration of Independence rests on the idea that "life, liberty and the pursuit of happiness" should be available to all, and that the Fourth of July is (or should be) at "day on which we glorify human rights."
Seventy-two years after Mrs. Roosevelt wrote this column -- with all of its insensitivities -- the baton is now in our hands. The challenges have seldom been greater and perhaps, with eyes wide open and with the world at our fingertips, we can see them more clearly now. We can hope that historians will look back decades from now and be able to see that 2017 was a period of human rights struggle, but also the beginning of something important.
Happy 4th of July!
Sunday, July 2, 2017
June was filled with international Pride events. Let's not lose perspective and forget that public Pride demonstrations still require courage of the LGBTI community. Marriage equality success can present sexual identity freedom and acceptance as a false norm.
Being anything but "straight" remains unsafe.
The criminalization of HIV-AIDS exists in the majority of US jurisdictions, with many of those making it a crime for an individual living with HIV to have sex with another without disclosure of the HIV status and that person's informed consent. These statutes often do not require proof of intent to transmit the disease; and actual inability to transmit the disease due to effective medical intervention presents no defense. The enforcement of these laws primarily against people of color is not unnoticed.
Members of the LGBT community are more likely to be the targets of US hate crimes than any other minority.
While we celebrate the expansion of legal equality, let's remember that the specific "equalities" recognized are more along the path of joining heterosexual norms, rather than a celebration of sexual minorities as respected individuals who may equally participate in our society upon their terms. Those "equalities" remain, in fact, narrow. We must exlore whether what our culture encourages is more than demanding conformity with heterosexually based cultural institutions.
Let's try to correct and avoid heterosexuality as the norm. Whiteness as the norm in fashioning race based remedies has resulted in the endurance of bias, implicit and explicit. We are early in the journey of ensuring effective remedies for members of the LGBTI community. Will we avoid the mistakes of the past in forcing alignment with false norms? We will have some indication from SCOTUS next term.
Thursday, June 29, 2017
Last month, the U.N. Committee on the Rights of the Child met with a U.S. government delegation as part of its formal review of the United States under two of the optional protocols to the Convention on the Rights of the Child. The United States ratified the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography and the Optional Protocol on the Involvement of Children in Armed Conflict in 2002, and this represented a combined third and fourth review of the U.S. government practices. The Committee has now released its Concluding Observations with respect to the U.S. efforts under the Optional Protocol on the Sale of Children.
While acknowledging a number of important legislative developments in the United States since the last review – such as the Justice for Victims of Trafficking Act (JVTA) and the Preventing Sex Trafficking and Strengthening Families Act – the Committee also addressed a number of critical shortcomings. What is notable (and troubling) is that many of the Committee’s recommendations highlighted issues in the U.S. response that the Committee previously addressed in 2008 and 2013. These findings should be a reminder to policy makers and anti-trafficking advocates that although significant efforts are underway, the U.S. response still has a long way to go.
Highlights of the Committee recommendations are below:
- Insufficient data collection and evidence-based research. The Committee reiterated concerns over the “lack of progress on establishing an effective national data collection system on the sale of children, child prostitution and child pornography” and the “insufficient research and evidence-based policy and programme analysis centred on children and the root causes of the crimes affecting them.” Simply put, without good evidence, it’s highly unlikely that the U.S. can develop a truly effective response.
- Lack of evaluation of training programs. The Committee praised the U.S. government’s report that it provides training on trafficking and other issues covered by the Optional Protocol “to all persons and institutions that come into contact with children” (NGOs working on these issues will be surprised by this claim by the U.S. government). However, the Committee notes the importance of evaluating the effectiveness and impact of that training. Evaluation of laws, policies, and programs continues to be insufficient, leaving it unclear whether the U.S. is doing something or doing something effective.
- Unbalanced efforts in addressing sex trafficking and labor trafficking. The Committee restated its finding that across many areas the U.S. government’s emphasis on sex trafficking persists. There still are higher legal burdens for establishing trafficking of children for forced labor than for sexual exploitation, and research remains “overwhelmingly focused on trafficking for sexual exploitation” with relatively little on labor trafficking. All children deserve protection from exploitation.
- Lack of primary prevention focus and efforts. The Committee again noted that the U.S. response typically takes place after some harm has occurred and urged the U.S. government to focus also on primary and secondary prevention. Prevention must be the ultimate goal, and general awareness campaigns are not sufficient. The U.S. government must address the root causes of vulnerability and of the demand for goods and services provided by exploited children, if we are to make meaningful progress in preventing harm to children.
- Finally, the Committee also acknowledged the recent surge in the number of unaccompanied refugee and migrant children, and it urged the U.S. government to take concerted efforts to ensure the protection of these children.
The entire Concluding Observations are worth a close reading. Addressing the above recommendations and other recommendations in the Concluding Observations will take significant effort and resources to address. However, they offer a roadmap to preventing harm to children and ensuring the rights of all children. Both of those aims seem worth the effort and resources.
Wednesday, June 28, 2017
In February 2016, this blog highlighted an exciting development for Vermont dairy workers: Ben & Jerry’s made a formal agreement to cooperate with dairy workers, led by Migrant Justice, to join a worker driven social responsibility (WSR) program, known as Milk with Dignity. That commitment was made in 2015 – over two years ago. Yet, Milk in Dignity is not yet in place. Migrant Justice and Ben & Jerry’s continue to negotiate the terms, but the process has been slow, and progress is lacking.
The stakes continue to be high for farmworkers in Vermont. Farm hours are long, and sometimes workers get no days off. Many workers are not even afforded eight consecutive hours off at a time. Pay is abysmal. Housing is substandard and injuries are common. Indeed, Migrant Justice was founded in response to the death of dairy worker, José Obeth Santiz Cruz. In 2009, Cruz died in a workplace accident when his clothes got stuck in a machine and strangled him. In response, dairy workers decided to take collective action to prevent similar travesties from occurring in the future, and improve overall farm conditions. One Migrant Justice member recently offered a compelling and personal snapshot of what dairy work can be like, and his motivation to advocate for change:
“My dad taught me how to milk cows. My first time in the barn, I thought I would pass out from the stench. It was scary working among the cows, getting knocked around by huge animals. Because there were no jobs available at the farm where my dad worked, I had to find work at a farm an hour away. At just 17, I was living and working by myself in a small farm on a back road in an unknown country, facing my first Vermont winter. Waking up at 3 a.m. to start my first shift, I’ve never felt so isolated. The farmer had me working 12 to 15 hours a day, with no day off. At the end of my first week, my body aching from over 80 hours of hard labor, I received my first paycheck and couldn’t believe what I saw: $350, or just over $4 per hour. At that time, I had no idea what the minimum wage was, but I knew that it wasn’t fair pay for the work I had done.”
Migrant Justice sees the Milk with Dignity Program as the key means to improve conditions so that dairy workers can live and work with dignity. Key components of the Program, which are calibrated to foster transformative change, are spelled out in a legally binding agreement, and include:
- workers’ central role in designing the program to best protects workers’ human rights, including through a detailed code of conduct for farms;
- continuous and independent monitoring to encourage compliance and ensure that breaches of the code are effectively investigated and addressed, coupled with farmworker education about their rights;
- accountability mechanisms to remedy violations of the code of conduct, with concrete market consequences where farms fail to make improvements;
- economic incentives for farmer participation: Ben & Jerry’s pays a premium to farms in good standing with the Code of Conduct, and this benefits the farm owners and farmworkers.
Over a dozen human rights organizations, including the ACLU, the Center for Constitutional Rights, the Coalition for Immokalee Workers, the, FIDH, and Human Rights Watch, Robert F. Kennedy Human Rights have endorsed the key elements of the Milk With Dignity Program, in a recent letter calling on Ben & Jerry’s to join the Milk with Dignity Program and describing how the Milk with Dignity Program implements human rights principles.
Last weekend, on the two year anniversary of Ben & Jerry’s initial agreement to cooperate, Migrant Justice and allies from across the country held a day of action to demand that Ben & Jerry’s make good on its commitment and put the Milk with Dignity Program into practice. More than 100 supporters made a 13 mile trek through Vermont, ending at Ben & Jerry’s Factory, where they delivered the human rights letter.
The March was a success. It drew broad support, received some excellent media coverage, and may be an important catalyst for progress implementing the Milk with Dignity Program. Unfortunately, celebration was cut short by the news that two of the marchers were arrested by Immigration and Customs Enforcement (ICE) on their way back to the farm where they work. Sadly, this scenario is becoming somewhat routine for Migrant Justice. Just last month two other prominent Migrant Justice members were arrested by ICE and served 10 days in jail before being released.
Routine border patrol stops, and the arrests of Vermont dairy workers put in sharp relief the precarious position of many farmworkers, and the challenges to worker advocacy. Farmworkers lack basic legal protections, and were intentionally excluded from the rights to organize and collectively bargain at the federal and state levels, meaning they have few avenues to vindicate their rights. This has always impeded efforts to improve conditions on farms. In recent months, the obstacles that farmworkers face have increased, with a sharp rise in federal targeting of communities perceived to be immigrant, Latino, and non-English speaking, of which ICE arrests are just one example.
As a colleague and I described in an op-ed : in the current political climate, it is even more important that corporations leverage their power and resources to fulfill their human rights responsibilities. I hope that Ben & Jerry’s is ready to step up - it would create a great model and an incentive for further positive corporate action.
Tuesday, June 27, 2017
By Risa E. Kaufman, Director of US Human Rights at the Center for Reproductive Rights, and lecturer-in-law at Columbia Law School
Leaving an estimated 22 million people uninsured, the Senate bill to repeal the Affordable Care Act targets low-income women and exacerbates persistent and deep racial disparities in maternal health. The bill would erase critical gains made in women’s access to healthcare. And it would undermine women’s human rights.
Human rights principles require health care that is available, accessible, acceptable, and of good quality. The bill threatens each of these principles, with particular impact on women. In addition to making severe cuts to Medicaid (which covers half of all births), the Senate Bill prohibits people who receive Medicaid coverage from accessing preventative and other healthcare services at Planned Parenthood. It allows states to waive the provision of essential health benefits, eliminating the guarantee of maternity care. The Bill allows states to impose a work requirement for Medicaid recipients, meaning that states may require new mothers receiving Medicaid to find work within two months of giving birth. It prohibits some immigrants from purchasing insurance on state exchanges and eliminates related financial assistance. And it limits women’s ability to purchase private insurance coverage for abortion care (women receiving Medicaid are already denied this coverage for most abortions).
The Senate’s healthcare repeal bill violates other core principles of human rights, as well.
Human rights requires transparency, participation, and inclusion. Yet, the Senate bill was cloaked in secrecy and drafted behind closed doors. The bill’s drafting committee, comprised of 13 men, held no public hearings on the bill, thus excluding critical perspectives and input.
Human rights requires universality and non-discrimination. Contrary to these principals, the Senate bill targets women’s access to reproductive and maternal health care, further restricts immigrants’ access to health care coverage, and disproportionately impacts people of color.
Women’s access to health care in the United States is of dire concern. The United States is the only wealthy country with a rising maternal mortality rate. The number of women in the U.S. experiencing life-threatening complications during pregnancy and child birth is rising, as well.
Black women are at the highest risk. In the United States, Black women are between three and four times more likely to die in child birth than white women, and twice as likely to suffer life-threatening pregnancy complications. These racial disparities in poor maternal outcomes are inextricable from structural discrimination and the inequalities that shape underlying determinants of health, including access to housing, education, employment, and safety.
Immigrant women in the United States face life threatening challenges in accessing health care, as well. As a stark illustration, Latina immigrants in the Rio Grande Valley in Texas have documented the barriers they face in accessing basic reproductive healthcare services, and the resulting severe health risks.
Indeed, over the past several years, women’s access to health care has raised alarm among human rights experts. The UN Committee on the Elimination of Racial Discrimination recently expressed concern over the difficulties immigrants face in accessing adequate health care, and the persistent high rates of maternal mortality among Black women in the United States. The Committee called on the U.S. to ensure access to adequate and affordable health care for all and improve monitoring and accountability for preventable maternal mortality. The UN Working Group on discrimination against women in law and practice recommended that the U.S. address racial disparities in maternal health. Similarly, the UN Working Group on People of African Descent recommended that the U.S. prioritize policies and programs to reduce maternal mortality for Black women.
Contrary to these recommendations, the Senate bill paves the way for eliminating essential benefits such as maternal health care, reduces subsidies for Medicaid, further restricts women’s access to abortion care, and defunds Planned Parenthood. The bill would deprive millions of women of critical health care benefits and deepen persistent and wide-spread racial disparities in maternal health. It is yet another reminder that the fight for human rights begins at home.
Monday, June 26, 2017
By Jeremiah Ho
Earlier this month, I was invited to speak on a panel at the Northeast People of Color / CAPALF Conference at Brooklyn Law School. Before I had gotten involved, the panel was already curiously titled, “True Grit: Academic Freedom, Campus Activism, and the Corporate University.” My co-presenters were Christian Sundquist, Anthony Farley, and Peter Halewood—all terrific faculty members from Albany Law. We each shared our variations on a theme regarding academic freedom, particularly in the privatization of universities. As summer is upon us and as many of us in the academy do our writing at this time, I thought it could be pertinent to underscore a few points from that talk in terms of upholding academic freedom in this raucous political and legal period in our present history and its implications for us in the academy on human rights at home (and abroad).
In a Los Angeles Times article this week, a White House spokesperson noted the disinterest in “abstract notions of human rights” that this current presidency harbors above other social and political agendas. (Link to full article here.) The White House might not show much interest in upholding broader human rights narratives but that does not make the normative and philosophic goals of human rights any less important. Particularly in this age of giant narrative shifting, our continued critique of the stories, viewpoints, and rhetoric that are trying to engage the American public to think differently, for better or worse, is essential. Our critique relies on our freedom in the academy to make extramural utterances. In my view, the more we use it meaningfully and responsibly, the more we sustain it from encroachment.
As our national narrative is being shifted away from cultural pluralism and democracy toward nationalism, subordination, and authoritarianism, academia has an institutional place to judge that narrative. The plot-line for narrative shifting is usually three-fold: First, those perpetuating the narrative change find a base or a critical mass of followers on a particular issue to whom they begin to foster a sense of frustration and alienation by striking up anger and hatred for that issue. (Think for instance: illegal immigration as an existing hot button topic with already incendiary reactions prior to the 2016 elections.) Then as anger and frustration is reignited, those perpetuating the narrative shifting start to exaggerate the dangers of that issue. (Think: fake news articles, false statistics of illegal immigration, and stereotypical sentiments echoed nationally that illegals are criminals and rapists.) And then once sentiments have been ramped up to a frenzy, the narrative shifting breaks into the offering of a drastic solution to appease that base. (“Let’s build a wall and make Mexico pay for it.”)
David Brooks had a great article about alienation of the base in the New York Times op-ed section last month. (Link to full article is here. And this plot-line for narrative shifting was something that has been noted by others. (Link to full article is here.) This strategy is not something I made up.
In terms of critique, our role at universities is to point out the exaggeration in the narrative change—to repeatedly point to the truth through our capacity to engage and participate in extramural utterances that are backed by research, possibly revealed in moments of activism. In part, as instructors and thinkers, this is our role: to challenge the exaggeration. Academic freedom fulfills our roles by providing us protections within the university.
From Black Lives Matter to sexual identity and orientation discrimination, from health care to economic inequality, from immigration bans to gender pay discrepancies—as long as those issues are being debated, there will be those who will dislocate “abstract notions of human rights” in each and every one of those issues in order to spin the rhetoric to a viewpoint that serves their hegemony and marginalize not just democracy—but people. For every intriguing and complex articulation of a new or continuing thought regarding human dignity that can appear in each one of these aforementioned issues, there is another nuanced strategy on the theme of the Other that can detract from the truth about human rights.
But within the privatizing practices at many colleges and universities, there are erosions of academic freedom that are timing well in this political climate of narrative shifting. The seemingly neoliberal focuses on the bottom line redirects the purpose of the university from education with critical knowledge as a public good in mind to applied knowledge that ensures post-grad marketability. That potentially shrinks the scope of academic freedom in the traditional sense. Because to some (such as Stanley Fish), our academic freedom must fit the contours of the job. If we are just here to graduate our students so that they can brand themselves for employment, rather than also inculcating them to the resonance of adult life and public citizenry, then our academic freedom narrowly fits that and only that premise. Stay within those contours and you’ll be a good citizen. Cross over and you’ll be zapped. Now this is not a view of academic freedom that I agree with because I think of critical knowledge and education as a common good and not a private entitlement is what the university is ultimately for. But it’s not hard to think that those moving the wheels of corporatization in colleges and universities will try to shrink the scope of academic freedom because the extramural utterances reflecting critique no longer fits whatever corporate purpose of the university we’ve reached. If that happens, then our role in judging new narratives is diminished because the erosion of academic freedom will render us unable to fully speak about the truth.
So for those academic colleagues who are writing, researching, or presenting on the topics that enlighten about human rights—whether in concrete or “abstract” notions, whether in discussions on certain social issues or otherwise—understand that your work is two-fold. First, you are furthering the substantive ideas and solutions in those areas of law, society, and politics that are in the public courts of debate. We definitely need that work at this time. Secondly, you are exercising and (hopefully) maintaining the scope of academic freedom in a free and liberal society. Thus, no matter how hard the work seems, note that there is a noble undercurrent in your early-morning, late-night, between child-care, seemingly-daunting, under deadline endeavors.
At the NEPOC/CAPALF panel, I suggested a further idea of protecting academic freedom in this age—which is to play up the importance and relevance of our research and activism to one of the important stakeholders in the corporatized university: our students. The purpose would to be stoke a demand for our research and scholarship that would underscore critical knowledge as a public good. Now, I’m still a bit skeptical about the narrower contours of this idea because it could possibly lead to a commodification of our academic freedom, which is dangerous and problematic and playing right back into the neoliberal practices of universities. I’m still tinkering how it would play out. That’s my project this summer.
But for now (and forever), keep writing!
And stay tuned for my next piece in July, which will offer part three of my series on civility.
Sunday, June 25, 2017
The Law and Society Association conference, held this year in Mexico City, was the usual whirlwind of panels, roundtables and plenaries. This year's theme was Walls, Borders and Bridges. Nothing could better illustrate the Walls portion than the fortress-like US Embassy directly across the street from the conference hotel. The Embassy appeared completely impenetrable. At the same time, it boasted a large rainbow Pride flag hanging out of some upper floor windows. Perhaps there is life somewhere within the embassy after all, trying to make a connection with those outside.
The conference plenary sessions focused on populism and constitutionalism, with insightful talks on the US election, Brexit, and the Colombia peace referendum rejected by voters. Human rights -- particularly issues of economic, social and cultural rights -- was a frequent theme of the individual sessions, which also reflected the confounding theme of US human rights exceptionalism. Business and human rights also played a prominent role. In a session on comparative water rights, one speaker noted the relevance of human rights to water litigation in India and South Africa. Another panelist, providing an extensive analysis of the Flint, Michigan water crisis, focused on the growing popular movement in the US for water rights. As she noted "water is power" and power will not shift in the US without pressure from people. Other panels of relevance to the US addressed the continuing impacts of Washington v. Davis on civil rights and death penalty advocacy in the US; the experiences of undocumented immigrants within US borders; the jurisprudence of the InterAmerican system; and low wage workers' rights. You can search the program and download papers here.
There is so much to absorb at an inter-disciplinary, international conference like this. As the title of the conference suggests, the Law and Society Association is very much about building scholarly bridges to support the innovation that can come from such interchange. But with an embassy closed-off to the outside, and government institutions that often refuse to engage with human rights norms, the task of building bridges between the US and others beyond the academy is harder than ever.