Tuesday, September 2, 2014
With the recent attacks on protesters in Ferguson, much has been written about the problems raised by militarizing the police. Rather than using military grade weapons and tactical strategies, police forces looking to avoid Michael Brown and Eric Garner style incidents as well as the ensuing protest problems ought to look to the military for different lessons on human rights compliance.
1. Selection practices matter. As I’ve written, not only do bad apples commit bad acts, but the risk of them doing so can often be predicted beforehand. Some of the individuals responsible for. military atrocities like My Lai, Abu Ghraib, and the Killing Team raised serious red flags long before the incidents occurred. Had the military better integrated respect for human rights into their selection processes, these acts might have been avoided. Quality background checks and other entrance requirements with a human rights focus can weed out many of those likely to act out their discriminatory practices through quick triggers. Similarly, police forces like those in Ferguson need better screening practices to keep out bad apples.
2. Leadership and institutional culture matter. The authorization of the use of force for bad apples is part of the reason for outrageous human rights violations like those in Ferguson, but leadership and institutional culture matter too. When police officers and military troops feel their racist and sexist views are accepted and embraced by their leaders and their co-workers, they are more likely to act on them. My Lai, Abu Ghraib, and the Killing Team weren’t just the acts of a few bad apples, but bad apples festering in a rotten barrel. A video of an officer working crowd control in Ferguson similarly suggests an environment where such attitudes were openly accepted.
3. Hearts and minds matter. Even though the authorization for force is often much greater for the military than for police, the recent deployment of counterinsurgency strategies has emphasized restraint rather than escalation. Counterinsurgency does not preclude the use of lethal force when necessary, but respect for the local community and the adoption of restraint have created safer environments. While police might be authorized to escalate situations, adopting voluntary restraint could avoid both Michael Brown style shootings and the ensuing discontent leading to local protests. Adopting counterinsurgency lessons would also lessen the deployment of high grade military weapons and vehicles and the related tensions such militarization brings.
4. Accountability practices matter. Whenever a troop uses lethal force, a detailed report must be filed. These reports allowed further investigation. They also facilitate the empirical assessment of particular practices and have led to reforms which massively decreased civilian casualties. In addition to internal accountability, such record keeping can also facilitate external review leading to increased human rights compliance. But in order to work, such accountability practices must be taken seriously. While St. Louis had been undertaking empirical assessments of the race issues plaguing the police force, Ferguson’s record keeping and transparency in the Michael Brown case sadly leaves much to be desired.
Monday, September 1, 2014
As Martha Davis wrote earlier this month, US employers and workers rarely value or take advantage on their vacation rights. Setting aside the fact that the Americans often do not take vacation time to which they are entitled, when Americans do take time away from work may remain "connected".
Now some European companies are making it easier for their employees to disconnect during their time away from work. At Daimler, email of vacationing employees is set to "holiday" mode. Emailers are informed that the employee is away and are informed of an alternate contact. The emails are then deleted from the emplyees inbox so that the worker does not return to numerous emails who authors would otherwise expect responses
If you did not have a chance to read the full post on TaxProfsBlog, here is the link.
Happy Labor Day.
Friday, August 29, 2014
By Fran Quigley
On August 12th, Indianapolis Mayor Greg Ballard delivered his most recent comments condemning our city’s shocking rate of violent crime. He said that we all have to do a better job of crafting long-term solutions to the problems that have led to 84 homicides since January.
That same day, the front page of The Indianapolis Star reported that Indianapolis workers face wage inequality that is growing at twice the national average.
Mr. Mayor, when you spoke about addressing the root causes of crime, you should have been pointing to that newspaper.
It is both common sense and proven social science: higher wages create a more stable, prosperous community. Decades of data show that when most folks in a community have access to jobs that pay a living wage, crime goes down. When wages are low, like they are in Indianapolis, crime rates go up.
Being poor is not an excuse for being a criminal. But young people in particular are far more likely to engage in illegal activity if they see little hope in the current job market for supporting themselves and their families. Bob Dylan said it: “When you got nothing, you got nothing to lose.”
Sadly, we have far too many people in our community with very little to lose. Indianapolis received more unwelcome publicity last week by way of a Brookings Institution report that shows our city with the 8th highest rate of poverty growth in the country.
Initially, I was optimistic when I heard the mayor introduce his crime-fighting proposal last month. "If we are ever going to solve the crime problem we have to address what causes the issue," Ballard said.
Sounded good. But it turns out the mayor’s proposal ignores the core role played by the lack of living wage jobs in Indianapolis.
There is plenty of opportunity for the mayor to add this to his agenda. As the recent wage inequality report from the U.S. Conference of Mayors points out, we have been gaining jobs in recent years. Those jobs are largely in food service and the hospitality industry, along with health care and social assistance. This is the undeniable trend of the 21st century U.S. workforce. The problem is that these jobs often pay quite poorly.
So the mayor needs to go beyond the dubious practice of throwing tax breaks at companies or decrying the worker skills gap that independent researchers conclude is overblown. Instead, the mayor should commit himself to taking the jobs Indianapolis already has, and making them good ones.
Others in our community are way ahead of Ballard on this. For example, many local food service workers, janitors, and security guards have joined unions and are bargaining together for pay raises. They are following the same trail blazed by 20th century Hoosier workers who drastically improved the pay and conditions of manufacturing jobs. They would welcome the mayor’s support.
In Indianapolis and across the country, low-wage workers and their advocates are also campaigning to raise the minimum wage, pointing out that higher wages lead to increased spending that boosts a community’s economy. The mayor should play a lead role in this effort.
Two years ago, the Indiana General Assembly made the unfortunate decision to take away local governments’ ability to increase the minimum wage for all workers in their communities. But Hoosier cities and counties can still commit to paying their own employees a living wage, and they can commit to only entering into contracts with companies that pay fairly, too. Taxpayer dollars should not fund sub-poverty wages.
The City of Bloomington has already passed such a law, as have many other communities across the country. The federal government recently made the same commitment. The city of Indianapolis should follow suit.
Remember the proven formula, Mr. Mayor: higher wages mean a more stable, prosperous community, which means less crime. It’s your move now.
Thursday, August 28, 2014
Feminist advocates are reflecting on how wide an impact the Hobby Lobby decision will have on parts of women's lives not directly related to birth control. Does Hobby Lobby open the door to other deeply held religious beliefs dominating the workplace at the expense of women's leadership and economic advancement? What if a religious belief requires the subordination of women? Will women lose ground in bringing successful discrimination claims for failure of promotion where the basis is a sincerely held religous beliefs? What other legal protections are at risk?
Is the failure of the United States to ratify CEDAW symbolic of the apparant backlash against womens's rights?
Feminist theorists are called to assess the impact of their work in a time when by all appearances women are losing legal ground. In its call for papers, the Center on Applied Feminism (University of Baltimore School of Law) asks us to consider the impact of recent legal and policy decisions on the economic well-being of women. At what point will women with resources elect to withdraw from the workforce or engage the workforce in a limited way?
" As the nation emerges from the recession, work and economic security are front and center in our national policy debates. Women earn less than men, and the new economic landscape impacts men and women differently. At the same time, women are questioning whether to Lean In or Lean Out, and what it means to “have it all.”
The Center will hold a symposium on these issues on March 5 and 6, 2015. Those interested in submitting a paper addressing these issues in preparation for the symposium will find more information here.
Wednesday, August 27, 2014
Burwell v. Hobby Lobby Stores has been widely criticized for extending religious rights to the actions of for-profit corporations. But the case is also problematic because once the Supreme Court held that the Religious Freedom Restoration Act applied, the substantial burden test did not require the Court to balance religious rights with the other fundamental rights at stake. Had the Court employed a human rights analysis that considered the health care, liberty, dignity and autonomy rights of women in addition to the religious rights of Hobby Lobby’s shareholders, the outcome might have been different.
Hobby Lobby challenged the Affordable Care Act’s requirement that employers’ group health plans provide preventative care, including certain forms of contraceptives. Hobby Lobby and two other for-profit corporations argued that RFRA prevented application of the contraceptive mandate to them. Once the Court determined that RFRA protections applied, it employed the substantial burden test. The test prohibits the government from substantially burdening a person’s exercise of religion unless the burden (1) furthers a compelling government interest and (2) is the least restrictive means of furthering the interest. Although Justice Alito grudgingly accepted that the government had a compelling interest in guaranteeing access to cost free contraceptives, the Court’s decision fails to recognize the full scope of the government’s interest or the role that the contraceptive mandate had in protecting and ensuring women’s rights.
Human rights law recognizes that access to affordable contraception is a fundamental component of women’s health, liberty, dignity and equality. Because human rights law recognizes the importance of the right to access contraception, decisions from human rights bodies and other countries are carefully drawn to balance the right to exercise religion with the right to reproductive autonomy and health care access when they conflict. Religious rights are respected and accommodated but conscientious objection can not be used as a weapon to impose one person’s religious beliefs on another, take away personal autonomy over health care decisions or preclude access to health care services.
As set forth in an international and comparative law scholars brief submitted in Hobby Lobby, other countries balance these rights by limiting the right to conscientious objection to individuals directly involved in providing services – e.g., doctors providing abortions, pharmacists dispensing contraceptives – and only allowing them to refuse to provide medical services that conflict with their religious beliefs if it does not compromise the health and reproductive rights of others.
Although the cases do not deal with claims regarding the provision of health care insurance benefits, the religious claims of employers who seek to be exempted from providing comprehensive preventative care seem too attenuated from the religiously objectionable act to raise a valid claim of conscientious objection. Indeed, as other scholars have commented, a claim that the provision of health insurance to employees that covers contraception somehow implicates the employer in the employee’s choice to use (or not use) contraception misperceives the nature of health benefits which are “a form of compensation, like wages earned by and belonging to the employee.”
Of course, we would not be in a conversation about whether corporations have the right to limit their employee’s reproductive health choices if health care was not tied to employment. The National Economic and Social Rights Initiative writes that the Hobby Lobby illustrates a fundamental flaw in the Affordable Care Act because the act’s reliance on businesses and insurance companies to provide health care coverage is inconsistent with recognition of health care as a human right. “Had the federal reform effort instead opted to treat health care as a public good, decoupled from employment and financed publically, it could have ended corporations’ role in restricting access to health care – be they employers or insurers.”
Tuesday, August 26, 2014
Don't begrudge President Obama a few days of vacation and a couple of rounds of golf this August. According to Article 24 of the the Universal Declaration of Human Rights, "Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay." Or, as Youth for Human Rights calls it, the "human right to play."
But though the "right to leisure" gets its own Article in the UDHR, it doesn't get much respect. The academic literature on the Right to Leisure is sparse at best. And in one recent article, "Worth What We Decide: A Defense of the Right to Leisure," the authors call the right "one of the most routinely philosophically and politically attacked sections" of the UDHR. In fact, they note that ratification of the Children's Rights Convention has been held up in the U.S. in part because of the treaty's recognition of children's right to play.
Why are Americans, in particular, so touchy about leisure? According to recent reports, most Americans leave half of their vacation days untouched, and 15 percent skip vacation entirely. Among those who do take a break, more than half keep in contact with the office and do some work in between those rounds of golf. In contrast, U.K. workers get an average of 25 paid vacation days per year (compared to 14 for the U.S.) and take all of them. French workers clock in with an average of 30 paid vacation days, and report that they need more (perhaps because 93 percent of them take their blackberries to the beach)!
There is one group, however, that takes its leisure very seriously: the World Leisure Organization. Founded in 1952, the WLO is a "world-wide, non-governmental association of persons and organizations dedicated to discovering and fostering those conditions best permitting leisure to serve as a force for human growth, development & well-being." Justly proud of leisure's status under the UDHR, the WLO has convened a number of international Congresses, several of which have issued formal declarations so serious and unplayful that they might be mistaken for diplomatic efforts.
The fundamental document of the WLO is the World Charter for Leisure, which incorporates the UNDR provision. The Sao Paulo Declaration of 1988 builds on the Charter, addressing "Leisure in a Globalized Society" and calling on governments to ensure that leisure is broadly available to all. The Quebec Declaration of 2008 links leisure to community development, noting that "it affects the well-being of individuals, contributes to the development of social ties and social capital, and represents a place for expression and engagement in democratic life."
In 2013, responding to pressure from the WLO and the International Play Association (IPA), the Committee on the Rights of the Child issued a General Comment addressing, among other things, children's right to leisure and play. Noting that the right to play was articulated by the international community as early as 1959, the CERD Committee characterized it as poorly recognized by State Parties ot the Convention. The General Comment spells out more specific expectations in terms of children's access to play,
So save your guilt, reject American exceptionalism and this year, claim your full share of leisure!
Monday, August 25, 2014
Some of the summer’s biggest news headlines have focused on the surge of children from Guatemala, El Salvador, and Honduras who, fleeing widespread violence and extreme poverty, have crossed the U.S.-Mexico border to seek refuge in the United States. According to the New York Times, “more than 63,000 children have been caught crossing the United States border alone since October — double last year’s number. President Obama has called the surge an ‘urgent humanitarian situation,’ and lawmakers have called for hearings on the crisis.” The border crisis has sparked a highly politicized debate, with compromise solutions shifting steadily to the right. The most recent bipartisan proposal would appropriate only a fraction of the money that advocates say is necessary to adequately respond to the crisis and, in many cases, require detention of minors (in violation of the 1997 Flores v. Reno settlement requiring the release of migrant children, when possible, to relatives or foster care) and result in rapid deportations without due process. It would also extend the Trafficking Victims Protection Reauthorization Act (TVPRA) to permit Customs and Border Patrol (CBP) agents to return unaccompanied minors to Central America after a very brief screening interview, without ever being placed in immigration proceedings. (This TVPRA provision currently applies only to countries contiguous to the U.S., i.e. Mexico and Canada).
Recent proposals, domestic and international litigation, and scholarship have called upon the federal government to protect the constitutional due process rights and international human rights of unaccompanied minors by, inter alia, providing free legal counsel for unaccompanied minors in immigration proceedings. These documents recount the standard law and policy arguments in favor of appointing free legal counsel to unaccompanied minors: the vulnerability of unaccompanied minors as they navigate an unfamiliar and arduous legal process; the complexity of immigration law; and the significantly increased likelihood for immigrants, especially minors, with lawyers to win their cases over those who represent themselves. Previous constitutional challenges along these lines have failed, and the closest the federal government has come to fulfilling the right to free legal counsel for unaccompanied minors is a contract with the Vera Institute of Justice to manage the Unaccompanied Children Program, which provides legal assistance to unaccompanied minors and has increased the percentage of children who receive free legal assistance in immigration proceedings from ten percent in 2003 to fifty percent in 2011.
As Professor Shani King has described, three constellations of international human rights law—children’s rights, immigrants’ rights, and the right to civil counsel—support the idea of free legal representation for unaccompanied minors. Professor King carefully details the legal regimes in many other countries that provide free representation to unaccompanied minors. The U.S. should follow suit, as this is a far better use of taxpayers’ dollars than the incarceration, removal, and rights rollbacks that form the core of most current legislative proposals. In fact, a recent study found that the cost savings to the government from not detaining immigrants in removal proceedings would essentially cover the cost of providing free legal representation.
Recent international human rights advocacy takes the campaign on behalf of Central American and Mexican child migrants in the U.S. a step further. Earlier this month, immigrants’ rights and human rights organizations from Chicago submitted a precautionary measures petition asking the Inter-American Commission for Human Rights (IACHR) to direct the U.S. government to stop the fast-track deportations of Central American or Mexican children who flee to the U.S. to escape gang recruitment, kidnapping, torture, rape, death threats, and other extreme violence in their home countries. The right to free legal representation is a core component of the petitioners’ requests, which focus on the rights to life, liberty and security of person; the rights of children to special protection; and the right to seek and receive asylum in a foreign territory. Several groups have requested hearings at the IACHR to address the issue of child migrants and the U.S. border crisis, and the IACHR is expected to take this up during a site visit to the U.S.-Mexico border in the fall.
A longer version of this blog post will soon be published as a Jotwell review of Shani King's Alone and Unrepresented: A Call to Congress to Provide Counsel for Unaccompanied Minors, 50 Harv. J. Legis. 331 (Summer 2013).
Saturday, August 23, 2014
Earlier this month the ABA section on litigation honored U.N. Special Rapporteur on Violence Against Women Rashida Manjoo with their 2014 Human Rights Award. In presenting the award the Section Chair, Don Bivens, reflected on Prof. Manjoo's courageous speaking truth to power.
Many of us are familiar with Prof. Manjoo's work on gender issues. Prof. Manjoo's academic post is with the Department of Public Law at the University of Cape Town. Prof. Manjoo has a strong record of working for gender equity. As U.N. Speciall Rapporteur she has worked tirelessly to address violence against women globally. Her post as Rapporteur will end next year also ending her instense international travel as Rapporteur. She has assessed the severity and forms of violence against women in many countries, including the United States.
Prof. Manjoo was gracious in her acceptance talk, thanking the section for allowing her time to pause "before the work begins again tomorrow." To read the complete remarks click here.
Part of Prof. Manjoo's work the following day was a presenation to the ABA Commission on Domestic and Sexual Violence. Professor Manjoo reminded the Commission that accountability should be the norm, specifically mentioning the Lenahan case. Aside from due diligence obligations, when the state fails to ensure accountability and the state fails in providing effective responses to violence against women. The state further fails in providing transformative justice.
Recognizing the state's dual obligation to the individual harmed and to society, governments fail in their obligation toward both. Prof. Manjoo instucted that lawyers can help shift the state's recognition of its obligations by using the language of the state's dual obligation.
Prof. Manjoo discussed that U.S. failure to ratify CEDAW and its failure to pass the International Violence Against Women Act as well as other gender equity issues. These failures are symbolic of the U.S. failure to end discrimination against women.
In addition to seeking and receiving information, Prof. Manjoo noted that part of her work as Rapporteur is to ignite civil society action. This latter mission has had limited results in many regards. While some action has resulted from Prof. Manjoo's work, lawyers have a special duty to act.
As lawyers, we have the power and obligation to hold the state accountable.
Thursday, August 21, 2014
The incidents in Ferguson, Missouri, from Michael Brown's shooting to the police violence that has followed, are increasingly being seen as human rights issues. Late last week, Amnesty International U.S.A. dispatched, for the first time in the organization's history, human rights monitors within the United States. Steven Hawkins, Executive Director of Amnesty USA, is among the monitors, and compares the situation unfavorably to other human rights crises around the world where governments violently curbed civil liberties. Given U.S. policies of exceptionalism over the years, it is hardly surprising that other countries such as Egypt, Russia and China have been quick to criticize the U.S. over its failure to honor human rights of assembly and free speech in Ferguson.
The complicating factor of federalism hangs over this incident. Though the federal government is involved in the investigation of Brown's death, the active law enforcement presence in Ferguson is local and state operated. And though the Pentagon apparently made available military-type equipment to the local force, there was no parallel effort to offer training to local law enforcement from a human rights perspective. And though the United States was only just reviewed by the UN CERD Committee last week for its compliance with the Race Convention, that review was largely a federal affair that hardly registered in most states and localities around the country.
To be effective, respect for human rights must be inculcated at every level of government. There will be many lessons drawn from this tragic situation over the coming days. One of those lessons should be the importance of establishing federal-local partnerships to promote human rights education, awareness and baselines before the next crisis hits.
Wednesday, August 20, 2014
The U.N. Committee on the Elimination of Racial Discrimination Expresses Concern Over Public Education in Chicago
Chicago’s recent public school closings are one of the most frequently cited specific instances of racial discrimination during the U.N. Committee’s review of the United States.
Brian Citro, Acting Associate Director, International Human Rights Clinic, University of Chicago Law School
Bill Watson, PILI Fellow, International Human Rights Clinic, University of Chicago Law School
On August 13th and 14th in Geneva, Switzerland, an international committee of experts reviewed the United States’ compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Four committee members separately questioned a delegation of U.S. officials about the racially disparate impact of last year’s Chicago public school closings—the largest wave of school closings in U.S. history. The closings were one of the most frequently cited specific instances of racial discrimination in the United States addressed during the review process.
CERD is one of only a few international human rights treaties the United States has ratified. Unlike U.S. constitutional law—which generally prohibits only intentional discrimination based on race—CERD prohibits any government action that has a disparate impact on a racial minority. Under CERD, the United States must therefore ensure equal enjoyment in practice of several political, economic, social, and cultural rights listed in the treaty, including “the right to education and training.” The treaty is binding on all levels of government—whether federal, state, or local—and requires the federal government to “review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination.”
In advance of last week’s review, the International Human Rights Clinic at the University of Chicago Law School, the Chicago Teachers Union, the Pozen Family Center for Human Rights at the University of Chicago, the Collaborative for Equity and Justice in Education, and Blocks Together (BT) jointly submitted a “shadow” report to the Committee. The report provided the Committee with sobering statistics on the racially disparate impact of the Chicago school closings. While African American students represent only 40 percent of Chicago students, 80 percent of the students impacted by the closings were African American. Moreover, roughly 90 percent of the closed schools had a majority African American student population, and 71 percent had a majority African American teaching staff.
Although the City claimed that all students displaced by the closings would receive a better education, its promise failed to materialize. Instead, 34 percent of students affected by the closings were moved to a lower performing school and more than 50 percent were forced to attend a school on probation for poor performance. Students remained surrounded by violence as they walked to school, and there were reports of altercations and tension in the receiving schools between new and old students. Moreover, in the build up to the school closings, the City largely failed to respect African American parents’ right to participate in public affairs, protected under CERD. Recommendations from parents and experts during public hearings prior to the closings were largely ignored: the City closed eleven of the thirteen schools that hearing officers recommended stay open.
Unfortunately, these problems exemplify issues of de facto segregation and racial disparities in achievement in public education across the United States; the Chicago school closings are merely a case study in government action exacerbating preexisting segregation and achievement disparities. The fact is that, as of 2010, 74 percent of African American students in the United States attended majority-minority schools. Many of these schools are underfunded and under-resourced, with a high proportion of uncertified or out-of-field teachers. High school graduation rates for racial minorities remain lower than for White students and only 56 percent of African American high school graduates enroll in postsecondary education, as compared to 72 percent of White graduates.
The ultimate result of the CERD Committee’s review will be a series of “concluding observations” that give an official interpretation of the United States’ compliance with the treaty. Concerns raised by the Committee about public education in the United States—and specifically Chicago—will very likely find their way into these observations. It will then be up to civil society to work to ensure the United States Government and the City of Chicago fulfill their obligations under CERD to ensure all students enjoy a quality education free from racial discrimination.
Tuesday, August 19, 2014
We highlight two upcoming human rights conferences.
First, the Fifth International Conference on Human Rights Education, "Advancing UNiversal Human Rights Culture," will be held December 4-6, 2014, at American University Washington College of Law. The Organizing Committee invites submissions for paper proposals. The deadline for submission is September 5. More information is here and here.
Second, the 2015 Martin Luther King Jr. Civil and Human Rights Conference will be held Jan. 15–19 in Atlanta at the Westin Peachtree Plaza. Established by the AFL-CIO to commemorate the life and legacy of Dr. Martin Luther King Jr. and the accomplishments of the civil rights movement, this multi-ethnic, multi-gender and intergenerational conference reinforces the historic bond between the labor and civil rights movements and honors Dr. King’s vision that collective action—whether at the voting booth or in the workplace—will mobilize participants to continue their work in order to make his dream a reality.
While the root of this conference is set to uplift the struggle of African Americans and the civil rights movement, this conference is specifically inclusive of people of color, young people, LGBTQ people, women and immigrants.
Community service has been a constant focal point of this conference and again opportunities to volunteer will be offered, as well as sessions to teach participants how to infuse community service into the labor movement.
Through plenaries, workshops and panels, attendees will be able to build knowledge and skills on a range of issues, including race; intersectionalities of underrepresented groups; development of labor–community relationships, especially with other civil rights organizations.
Know of other US Human Rights conferences that should be featured on these pages? Drop us a line!
Monday, August 18, 2014
Two recent SSRN postings offer provocative critiques of the UN Guiding Principles on Business and Human Rights. First, Professor Tara J. Melish has posted, "Putting 'Human Rights' Back into the Guiding Principles on Business and Human Rights: Shifting Frames and Embedding Participation Rights." The abstract follows:
This book contribution responds to an important and timely question: How, looking forward, can we take the U.N. Guiding Principles on Business and Human Rights (GPs) “beyond the end of the beginning,” ensuring that cumulative, step-by-step progress is in fact made in improving companies’ real-world and on-the-ground compliance with human rights standards? Finding the specific proposals made by the former SRSG John Ruggie, and largely echoed by the volume’s editors, wanting in this regard, the contribution recognizes the basis of those proposals as resting upon a highly inaccurate, but politically powerful, frame that has been widely promoted in international circles to defend the GPs and distance them from human rights NGOs. That frame serves not only to dramatically misrepresent the reasons human rights groups have been so uniformly critical of the GPs, but also, most consequentially, creates a cognitive frame that leads almost inevitably to proposed “intermediate pathways” forward that bear little relationship to the actual problems diagnosed. The piece argues that a new frame for situating international debate on the GPs is critically needed. Part I offers what the author sees as a far more accurate frame. Parts II and III then use this frame to rethink answers to the two key questions identified by the volume’s editors for constructively taking the GPs “beyond the end of the beginning”: How can “empowered civil society participation” effectively be incorporated into the GPs’ “dynamic logic”? And, what role, if any, does a human rights treaty instrument have to play?
In the business and human rights agenda developed under the auspices of the United Nations, nowhere are human persons recognized as beings endowed with agency – the power to act on their own behalf. Instead, they are acted upon by state or corporate entities. This Chapter calls for the addition of labor liberalization to the United Nations’ business and human rights agenda. Labor liberalization is both an avenue for facilitating the agency of human persons, and a potential bridge between trade liberalization and human rights.
After a long drawn out and often contested process, under the auspices of the UN, the project of business and human rights has won the support of the major players – states, transnational corporate entities, and stakeholder NGOs. However, the work of Special Representative John Ruggie, resting on the pillars of state duty to protect, business’ responsibility to respect, and the provision of access to remedy by victims, maintains a view of labor, in its individual and collective capacity, as a passive object to be acted upon. Pursuant to this paradigm, labor rights implementation and protection spring from nationality and domicile, not simply from the existence and recognition of the human person.
A necessary precondition to the meaningful recognition, implementation, and enforcement of the reinvigorated business and human rights agenda is the synchronization of economic calculus with implementation of human rights obligations. This entails liberalization of labor from the nation state constraints to which it is subject. Labor is hindered in its ability to operate in the global sphere, with a consequent negative impact on its ability to engage fully in the transposition and enforcement of the labor rights espoused in the core internationally recognized human rights.
Global competition and collaboration between and among labor and capital are more likely sources of the implementation of a business and human (labor) rights agenda than is reliance on current global labor standards, and the protect, respect, and remedy framework. The liberalization of labor will allow human labor providers to compete and collaborate with capital on the global stage.
Friday, August 15, 2014
In a decision that may be useful in domestic challenges to felony disenfranchisement, the Fourth Section Chamber of the European Court of Human Rights on August 12, 2014, reiterated its view (over two dissenting opinions) that blanket bans on prisoner voting violate human rights norms articulated in the European Convention on Human Rights and the International Covenant on Civil and Political Rights, among others.
The United States is one of the leading nations in the world when it comes to felony disenfranchisement, denying the vote to about 5.85 million individuals. According to the Sentencing Project, thirty-five of the fifty states impose post-sentence restrictions on individuals’ voting rights and twelve states deny voting rights even to those who have successfully fulfilled their prison, parole, or probation sentences. However, the U.S. is not completely alone, and a number of other countries, including the United Kingdom and Russia, practice milder forms of prisoner disenfranchisement, barring individuals from voting during the time they are serving in prison with eligibility to vote generally reinstated after their are released.
In 2005, the ECtHR ruled that Scotland's blanket policy of denying prisoners the right to vote violated the ECHR protocol guaranteeing participation in free elections. A more recent case addressing Italy's law barring certain convicted felons from both holding public office and voting reiterated that blanket bans on prisoner voting would violate the European Convention. The decision delved into a discussion of comparative practices in Canada, South Africa, and Australia before concluding that the Italian law was sufficiently narrow and tailored to the particular offenses to pass muster.
On August 12, the Fourth Section Chamber of the European Court concluded in Firth and Others v. U.K. that the Scottish prisoners who were denied voting rights in the 2005 case were not entitled to compensation for that denial, but at the same time, the Court stated once again that the blanket ban on voting in prison violated the UK's obligations under the ECHR.
Commentary on Firth can be found here, here and here. While the European case law may be helpful to domestic U.S. advocates, many commentators express concern that U.K. legislators will simply defy the European Court and perpetuate the disenfranchisement policy, in derogation of the rule of law.
Thursday, August 14, 2014
As the U.N. Committee on the Elimination of Racial Discrimination (CERD Committee) reviewed U.S. compliance this week, a group of human rights and poverty law organizations working with migrant farmworkers in the U.S. were waiting with bated breath. They submitted a shadow report to the CERD Committee on the practice of denying outreach workers access to the farms and ranches where migrant farmworkers live and work in the U.S. In the shadow report, they argue that the U.S. violates its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, especially articles 5 and 6, protecting the right to seek protection from and effective remedies against racism. This group is hoping that the CERD Committee will make a recommendation specifically addressing this issue in its concluding observations following the U.S. review.
While no official data is available, it is estimated that between 1 and 3 million year-round and seasonal migrant farmworkers labor every year on U.S. farms and ranches. About 89% of farmworkers are racial minorities (Hispanic and African American) and approximately 21% of farmworkers live in employer-owned housing.
The issue of migrant camp access issue is a huge one for outreach workers who attempt to provide migrant farmworkers living on labor camps or ranches in the U.S. with legal assistance, health care, education, and social and other basic services. The U.S. does not have a comprehensive federal legal framework concerning the right of migrant farmworkers to receive visits and information from outreach workers on agricultural labor camps and each state differs in its enforcement of its own laws. Outreach workers are regularly and illegally denied access. What is more, outreach workers regularly face harassment, threats of arrest, and even violence by owners and operators of migrant labor camps with no recourse. Just a couple of weeks ago an outreach worker in North Carolina was nearly arrested for meeting with farmworkers at a labor camp, in blatant disregard of North Carolina law.
The effects of these abuses are manifold and include service providers being discouraged from providing services and advocates having a difficult time identifying and providing services to victims of labor abuses, sexual violence, and human trafficking. The totality of these factors gives farm owners and ranchers a free pass to exploit and discriminate against this extremely vulnerable population of migrant farmworkers.
The shadow report submitted earlier this year is not the only time this issue of migrant camp access has been or will be brought to the international human rights arena. Erin Foley Smith, Project Attorney with the Human Rights in the U.S. Project at the Human Rights Institute at Columbia Law School, which also signed on to the migrant camp access shadow report, is currently in Geneva and has been advocating directly with CERD Committee members on this issue during the review. This issue of migrant camp access was previously raised before the U.N. Human Rights Committee in a shadow report last year, and the committee made some recommendations to the U.S. regarding human rights and migrants, but none specifically regarding the camp access issue. A complaint was submitted to the U.N. Special Rapporteur on Extreme Poverty and Human Rights on this issue in December 2012. The Transnational Legal Clinic at the University of Pennsylvania Law School has submitted a thematic hearing request to the Inter-American Commission on Human Rights on this issue and also produced a short video on this issue for international human rights advocacy purposes.
The group of human rights and poverty law organizations waiting this week are confident that their persistent efforts on the international level will pay off and that the CERD committee will recognize the importance of this human rights issue. International recognition of the migrant camp access issue could go a long way in terms of U.S.-based advocacy on behalf of migrant farmworkers’ rights. U.S. migrant farmworker advocates hope to use a concluding observation on migrant camp access to press government officials, and U.S. courts, for a comprehensive legal framework, better enforcement of current laws, and greater education of the public and law enforcement about the rights of migrant farmworkers.
Guest blogger Erin Smith of Columbia Law School’s Human Rights Institute posts today from on the scene in Geneva, Switzerland, at the conclusion of the review of the U.S. compliance with the Race Convention. Writes Erin:
As this blog has noted, this week the United Nations Committee on the Elimination of Racial Discrimination reviewed U.S. compliance with human rights obligations under the Race Convention (CERD). Following the review, the Committee will release Concluding Observations, discussing areas of concern with U.S. implementation of the treaty and making recommendations to the U.S. government.
Among the issues on the agenda were housing discrimination, employment inequality for minority women, treatmentof migrant workers, segregation in education, racially disparate impacts in criminal justice, disparities in health access and outcomes, and profiling on the basis of race and national origin. But besides race, what do all of these issues have in common? They all fall under the jurisdiction of state and local governments. Therefore, a key overarching topic on the agenda has been how to ensure compliance with the Convention at the state and local level.
Earlier this summer, Columbia Law School’s Human Rights Institute and the International Association of Official Human Rights Agencies (IAOHRA) jointly submitted a shadow report to the Committee to inform the review. The report focuses on the U.S. federal government’s obligations to ensure that state and local governments have the capacity to fulfill human rights in local communities. The report describes how the current lack of federal support has resulted in significant gaps in human rights protections in a number of areas under the jurisdiction of state and local governments. Building on prior advocacy, the report recommends ways that the federal government can equip state and local actors to promote and protect human rights in a comprehensive and coordinated manner, accounting for the U.S. federal structure, which limits the federal government’s ability to compel state and local action.
While the report emphasizes the lack of federal guidance in the human rights arena, it highlights that a number of states and localities have adopted innovative initiatives to eliminate discrimination, in line with CERD. However, while encouraging, these efforts are currently ad hoc, patchwork and vulnerable to elimination—and will remain so without federal action.
This review itself was a signal that the federal government is interested in increased state and local engagement. The U.S. delegation included Mayor Bell from Birmingham, Alabama, and Attorney General McDaniel from Arkansas. But broad dissemination of what has transpired in Geneva is critical if reviews will inform local governance.
The Committee members, keen on learning about the facts on the ground in the U.S., held consultations with U.S. civil society on Tuesday and Wednesday morning. At both, Mr. Robin Toma, Executive Director of the Los Angeles County Human Relations Commission, and Vice President of IAOHRA, spoke with specificity on the value of strengthening state and local human rights implementation. Toma remarked that most state and local officials don’t even know what CERD is, yet CERD requires the U.S. to not only educate state and local governments about their human rights obligations but also to equip them to monitor and implement those obligations. Two Committee members pursued the topic further, delving into a discussion on what the federal government has done and should do to improve intergovernmental coordination around the CERD.
Yesterday afternoon and this morning, the Committee held its official U.S. review. During the two three-hour sessions, multiple Committee members—including Mr. Marc Bossuyt of Belgium, Mr. Ion Diaconu of Romania, Ms. Fatimata-Binta Victoire Dah of Burkina Faso, Ms. Afiwa-Kindena Hohouto of Togo, and the Committee’s U.S. Rapporteur, Mr. Noureddine Amir of Algeria—continued to press on the issue of state and local implementation. The Committee:
- praised the government for including members of state and local government in its delegation;
- noted the importance of implementing the Convention through all levels of government and asked the U.S. to improve coordination to that end;
- asked the federal government to educate state and local officials about the treaty and their obligations thereunder, including by sending the Committee’s Concluding Observations to state and local governments;
- urged the U.S. to establish a permanent institution tasked with implementing and coordinating treaty obligations throughout the country, such as a National Human Rights Institution; and
- encouraged the U.S. to provide funding to state and local governments to monitor and implement their obligations under the Convention.
Meanwhile, the U.S. delegation highlighted coordination efforts and existing state and local initiatives to combat racial discrimination. Deputy Assistant Secretary Scott Busby of the Bureau of Democracy, Human Rights, and Labor in the Department of State noted, among other subjects, federal challenges to discriminatory voting laws in California and Texas under the Voting Rights Act, efforts to educate state and local entities about treaty obligations and treaty reviews, and the State Department’s intention to post Concluding Observations to its website when they become available. Mayor Bell discussed federally-supported programs in Birmingham to eliminate barriers to healthcare for minorities and to help young men and women coming out of prison to find work and reintegrate into society. And Attorney General McDaniel spoke about efforts his office has taken to combat racial discrimination in Arkansas, including by helping to protect minority borrowers in the wake of the foreclosure crisis through the enforcement of laws dealing with deceptive consumer practices.
The Committee’s Concluding Observations are expected within the next month.
Wednesday, August 13, 2014
For reasons you will quickly understand, I will use the pseudonym Jane Doe to share the story of a recent victory on behalf of a woman locked in Ohio’s prison.
Jane Doe, a woman in her forties, entered the Ohio Reformatory for Women (“ORW”) in 2001. After medical testing soon after she arrived, Jane learned that she was HIV positive. She was devastated by her diagnosis and did not want her HIV status available to other inmates. For nearly ten years, she was able to maintain that privacy and receive treatment in confidence.
That changed in June 2011. Jane walked into the infirmary as she normally would to receive treatment. Another woman, also incarcerated, walked out and said to Jane, “You’ve got AIDS.” Humiliated, Jane entered the nurse’s office. She saw a piece of paper on a table, in plain view, with her inmate number followed by the HIV diagnosis. When she questioned the attending nurse why her information was sitting out, the nurse quickly covered up the paper and said, “I’m just doing my job.”
Immediately after, Jane felt anxious and depressed, worrying that the information would spread throughout ORW and that she would be shunned. She experienced trouble sleeping and eating, and she lost weight as a result. After some time passed, Jane hoped that her confidential HIV information would not be disclosed again. She was wrong.
In December 2011, ORW staff left Ms. Doe’s medical records unattended in the infirmary. This time an inmate working as a porter in the infirmary viewed the records. Later, in front of four other prisoners, the inmate shouted, "You sick, Bitch! I saw it with my own eyes. I saw your name and number and HIV on that paper. Bitch, you sick!" Ms. Doe's anxiety and depression worsened. She suffered persistent insomnia. She lost her appetite.
The students in my Constitution Litigation Clinic, which operates through the Ohio Justice & Policy Center, partnered with Ohio State University’s Civil Litigation Clinic to try the case. We sued because the state prison system allowed our client’s confidential HIV information to be disclosed. Only recently the magistrate judge recommended that our client receive $7500. Here is the link to the opinion. Because we tried the case to a magistrate, the decision is not yet final.
Tuesday, August 12, 2014
The CERD Committee's review of US compliance with the Race Convention (CERD) starts on Wednesday, but Geneva is already buzzing with US officials and advocates who have arrived to prepare for the hearings. The US delegation numbers 32, including representatives of the Departments of State, Justice, the Interior, HHS, Education, Homeland Security, Labor, and the EPA. The Attorney General of Arkansas and the Mayor of Birminghamd are part of the U.S. delegation, too. And dozens of US advocates from across the US are in attendance.
Want to know more? Several folks are posting daily blogs. For a lively perspective on the process, see Hannah Adams' daily video updates for Northeastern Law School's Program on Human Rights and the Global Economy: http://fellowtalk.wordpress.com/ Hannah is in Geneva to represent a consortium of groups pressing for greater commitments on the civil right to counsel. The US Human Rights Network is also posting regular blogs. including this initial overview from Bill Watson, a clinical fellow at the University of Chicago.
Want your news in smaller chunks? Check out the twitter feed at #CERD.
Would you like to see the review itself? Watch the webcast on August 13, 9am - noon ET and August 14, 4 - 7am ET: www.treatybodywebcast.org/.
Can't take the day off to watch? After September 1, the taped proceedings will be available here: www.treatybodywebcast.org/category/webcast-archives.
We're be offering more highlights and perspective in this space, too, as the week progresses.
Monday, August 11, 2014
by Brian Howe
Just before Christmas in 1991, Cameron Todd Willingham's Texas home caught fire, killing his three young daughters. Willingham was inside asleep when the fire started. He managed to escape, but told investigators that he had been unable to find the girls in the intense heat and smoke. Investigators were suspicious about his attitude following the incident, and these suspicions were confirmed when the fire investigators discovered what they believed were tell-tale signs of arson. Willingham was arrested for murder and placed in the local county jail. While the parties prepared for trial, another inmate came forward to inform authorities that Willingham had confessed the murder to him through a slot in his cell door. Willingham steadfastly maintained his innocence. He refused to plead guilty in exchange for life in prison, and he was convicted and sentenced to death.
Friday, August 8, 2014
The recent national debate concerning unaccompanied minors at the border has often seemed strangely narrow and parochial, more focused on domestic political points and NIMBYism than human rights and humanitarianism. Jacqueline Bhabha's timely new book, Child Migration and Human Rights in a Global Age (Princeton), promises to put the issues of child migration into their larger context. In fact, Bhabha speaks directly to the US issues on this youtube video. Jacqueline Bhabha is professor of the practice of health and human rights at the Harvard School of Public Health, director of research at Harvard’s François-Xavier Bagnoud Center for Health and Human Rights, and the Jeremiah Smith, Jr. Lecturer at Harvard Law School. One can only hope that her long view of these complex issues will have some influence, though Texas Governor Rick Perry's deployment of 1000 National Guard troops to the Mexico border suggests that more constructive, less politicized approaches may be a long time in coming.
According to the publisher's blurb:
Why, despite massive public concern, is child trafficking on the rise? Why are unaccompanied migrant children living on the streets and routinely threatened with deportation to their countries of origin? Why do so many young refugees of war-ravaged and failed states end up warehoused in camps, victimized by the sex trade, or enlisted as child soldiers? This book provides the first comprehensive account of the widespread but neglected global phenomenon of child migration, exploring the complex challenges facing children and adolescents who move to join their families, those who are moved to be exploited, and those who move simply to survive.
Spanning several continents and drawing on the actual stories of young migrants, the book shows how difficult it is for children to reunite with parents who left them behind to seek work abroad. It looks at the often-insurmountable obstacles we place in the paths of adolescents fleeing war, exploitation, or destitution; the contradictory elements in our approach to international adoption; and the limited support we give to young people brutalized as child soldiers. Part history, part in-depth legal and political analysis, this powerful book challenges the prevailing wisdom that widespread protection failures are caused by our lack of awareness of the problems these children face, arguing instead that our societies have a deep-seated ambivalence to migrant children—one we need to address head-on.
Child Migration and Human Rights in a Global Age offers a road map for doing just that, and makes a compelling and courageous case for an international ethics of children’s human rights.
On a different note, we give a special shout-out to Henry Freedman, on the occasion of his retirement as Executive Director of the National Center for Law and Economic Justice. Today, August 8, is his last day on the job. In a legal career that started when he was a Reginald Heber Smith Fellow, Henry has blazed a trail as a poverty lawyer and advocacy leader for nearly five decades. He has been the Executive Director of NCLEJ since 1971, at the helm weathering cuts to legal services funding, responding to vehement attacks on welfare and those who need it, and more recently, warning about complacency over growing economic inequality. A true human rights hero, we give a a tip of the HRAH Blog hat and send our best wishes to Henry as he closes this chapter.
Thursday, August 7, 2014
In 2011, Tillie Black Bear met with U.N. Special Rapporteur Manjoo to inform SR Manjoo of the difficulties faced by Native American survivors of domestic and sexual violence in obtaining prosecutions against their perpetrators. Native women were being denied judicial remedies because Tribal Courts and non-Tribal Courts could not agree on which court, if any, had jurisdiction over perpetrators who were not members of the tribe but committed violent crimes on the reservation. Tribal Courts were hampered by lack of clear authority to prosecute criminally non-native perpetrators of violent crimes. While some non-native courts denied any authority to prosecute crimes occuring on the reservation, even those who believed that they had authority rarely prosecuted sexual assault perpetratred against native women. Consequently, there was no punishment for non-native perpetrators who came onto reservations and sexually assaulted women. Predictably, the rates of sexual assault of native women are higher than that of the general population. Conservatively, 1 out of 3 Native women will be raped in her lifetime and 3 out of 5 will be physically assaulted. Native women brought their plight to the Inter-American Commission on Human Rights in 2011.
For years advocates worked to provide a remedy. The remedy sought was to grant Tribal Courts jurisdiction over perpetrators who committed violent crimes on the reservation. The proposal stirred opposition that was sometimes based in racial bias. For example, some argued that white men could not receive a fair trial in Tribal Court.
Finally in the 2013 Violence Against Women re-authorization contained the jurisdictional provision for which Tillie Black Bear had advocated for so long. Tribal Courts are now able to prosecute those who enter onto reservations and commit violence.
Tillie Black Bear, who passed on this July, was a grandmother of the contemporary battered women’s movement. Tillie’s national advocacy dated back to 1978 when she testified at the first U.S. Commission on Civil Rights hearing on “wife beating”.
Tillie Black Bear, of South Dakota, was a strong and effective advocate for native women in designing federal legislation. Tillie was instrumental in founding the National Coalition Against Domestic Violence as well as the South Dakota Coalition Against Domestic and Sexual Violence. Her work on her native Rosebud reservation continued, as well, where she was a founding mother of the White Calf Buffalo Woman Society. In 2000, President Clinton honored Tillie with an Eleanor Roosevelt Human Rights Award. In making the award the president stated: "For more than 20 years, Tillie Black Bear has been a strong voice for Native American and women’s rights and a leading advocate for victims of domestic violence. She founded the first shelter for battered women on an Indian reservation in 1977 and has worked with energy and determination to prevent domestic abuse, provide counseling and empower women with the tools they need to succeed."
One of Tillie’s notable characteristics was her persistence. Her achievements came about after years of advocacy. Tillie’s persistence over so many years, ultimately achieving remedies for native women in major federal legislation, was strategic and measured. She was faithful to her native heritage and principles, in 2003 holding a Wiping of Tears ceremony at the Senate building.
Those of us who continue working in the field have much to learn from Tillie’s nearly forty year journey through human rights advocacy.