Wednesday, September 17, 2014
In two recent, provocative articles, Professor Sheldon Bernard Lyke of Whittier Law School seeks to draw deeper meaning from U.S. courts' reluctance to engage with foreign law, and conservative opposition to such engagement. The first article, Making Strange Laws, 35 U.Pa.J. Int'l L. 675 (2014), draws on a qualitative analysis that finds parallels between conservative views of illegal immigrants and conceptions of foreign law. The second article, Is Resistance to Foreign Law Rooted in Racism?, 109 Nw. U. L. Rev. Online 41 (Aug. 31, 2014), considers whether racism is at work in the U.S. Supreme Court's resistance to transnational judicial dialogue. These articles are not yet up on SSRN, but the latter article is available online.
Sheldon Bernard Lyke, Making Strange Laws, 35 U. Pa. J. Int’l L. 675 (2014)
The central argument of this Article is that conflict over the judicial practice to use foreign authority leads to the manufacture of foreign law into a dangerous stranger. Drawing on philosopher and sociologist Georg Simmel’s conceptualization of the stranger as a cultural object that sits on the border of the insider and outsider, I argue that there is a resistance to the use of foreign law in the United States. Foreign laws, like immigrants in the United States, are being constructed as tolerable illegals or threatening legals.
I perform an empirical qualitative content analysis of the senate confirmation hearings for Supreme Court nominees and their discussions of the practice of judicial citation of foreign law. The hearings of nominees Alito, Kagan, O’Connor, Roberts, and Sotomayor are studied. During these hearings, conservatives label foreign law as biased and dangerous. Most interestingly, however, are the ways in which foreign law emerges from these debates linked to otherness--particularly the otherness of disadvantaged gender and racial minorities. The Article connects the transformation of foreign law into a stranger to other conservative movements that have constructed foreign national immigrants as illegal strangers who should be feared. This work argues that foreign laws and decisions constitute a new American stranger.
Sheldon Bernard Lyke, Is Resistance to Foreign Law Rooted in Racism, 109 Nw. U. L. Rev. Online 41 (Aug. 31, 2014)
Racism and oppression inhibit society and its actors and institutions from understanding the intricacies of ethnicity and race. This inhibition makes it more difficult for society to find solutions and remedy oppression. This Essay examines racism in the specific context of “transjudicial communications.” Anne-Marie Slaughter coined this term to describe the practice of courts in one country citing to the opinions and decisions of courts in foreign countries. In the United States, domestic issues of race may shape how legal actors and institutions understand and utilize transjudicial communications. In numerous instances, lawmakers and judges have expressed resistance to foreign law while debating aspects of racial inequality and racism in the United States.
More specifically, racism may fuel myopia on the Supreme Court of the United States by blocking Justices from access to useful foreign legal decisions. As a result, the Justices’ learning process regarding ethnicity and race is stifled. This is a troubling issue, particularly where the perspective lent by transjudicial communications could have been helpful in the Court’s recent discussions of the constitutionality of both race-conscious admissions in higher education and bans on race-conscious affirmative action programs. Specifically, a recent Brazilian Supreme Federal Court decision could have shed light on how the U.S. Supreme Court should view the relation between diversity and equality, how universities might address the U.S. Supreme Court’s concern over applications that allow for self-identification without third-party review, and whether to characterize affirmative action programs as benignly discriminatory, as opposed to manifestations of substantive equality.
The goal of this Essay is to situate transjudicial communications and the backlash against foreign legal citations into a conversation about race and racism. The goal is not to try to prove that opposition to foreign law is racist. That claim is better left for future research. Rather, at a minimum, the resistance to foreign and international law has correlations to racism and is grounded in a racial narrative.
In discussing racism and transjudicial communications, this Essay begins with a working definition of the contested conceptualization of globalization because transjudicial communications are a specific example of globalization. Second, I provide a brief overview of transjudicial communications in the United States and discuss how resistance to this process is linked to oppression and racism. Finally, I argue how racially-rooted resistance to foreign legal citation inhibits the possibilities for U.S. Supreme Court Justices to learn about race in the context of race-conscious university admissions. I use the example of the Supreme Federal Court of Brazil’s landmark affirmative action decision issued in April 2012 as an example of a missed opportunity for the U.S. Supreme Court to learn about race and the crafting of appropriate race-conscious remedies.
Tuesday, September 16, 2014
With so many U.N. treaty body reviews of the U.S. going on this year, it may be difficult for U.S. human rights advocates to focus on much else. However, we are missing a very rare opportunity to push ratification of one of the most innovative human rights treaties available today: the U.N. Convention on the Rights of Persons with Disabilities (CRPD).
The CRPD is a breakthrough human rights treaty, recognizing and outlining an array of rights for people with disabilities and clearly acknowledging that disability is an evolving concept, subject to social context. The treaty itself includes reference to domestic civil rights, international development policy and classic intersectional human rights. For the U.S., ratification provides the opportunity to join – and lead – a community of more than 147 countries which have already ratified the CRPD, and leading by the very positive examples of the Americans with Disabilities Act (ADA) and other policies and practices already in place in the U.S.
There is a real possibility that the Senate may vote again this fall – and successfully ratify – the CRPD. In December 2012, the U.S. Senate failed by only five votes (61-38) to pass its advice and consent to ratify the CRPD. This was after a major coordinated push for ratification led by a broad coalition of national and international disability rights advocates (e.g. the U.S. International Council on Disabilities), veterans groups, and major political figures from both parties, including John Kerry, Bob Dole, and former Attorney General Richard Thornburgh.
The 2012 vote was very disappointing, but still it is remarkable how close the CRPD came to ratification by the U.S., especially when you consider the inactivity of the 112th Congress and the government shutdown of 2013. Moreover, if there was any worry that the then-pending Bond v. U.S. decision was somehow affecting the ratification of treaties by the senate, that cloud has been lifted.
Heavy opposition was mobilized against ratification of the CRPD, both on the basis of rejecting all international treaties (a trend among very conservative Senators) and a rejection of the CRPD based on powerfully persuasive misinformation (such as the idea that parents would no longer have the ability to homeschool their children with disabilities). It is important to bring the facts and benefits of the CRPD to the Senate: the CRPD is a crucial human rights treaty, recognizing the rights of persons with disabilities, focusing on areas of law where the U.S. is a global leader. This is where U.S. human rights advocates are particularly experienced, bringing human rights arguments and making them relevant to U.S. courts and lawmakers.
This July, the Senate Foreign Relations Committee again voted the CRPD out of committee and it looks quite possible that it may come up for a full Senate ratification vote again sometime this fall. U.S. human rights advocates were late to the game in the push to ratify the CRPD in 2012. We need to do more to support and promote ratification efforts now. While some advocates have been pushing for ratification of the CRPD during human rights consultations leading up to the Universal Periodic Review, it would be great to see more connections made between human rights and disability rights groups and a concerted effort by human rights experts to speak and publish about the CRPD and the benefits of ratification.
An easy but significant step U.S. human rights advocates can take to join the push to ratify the CRPD is to go to the U.S. International Council on Disabilities’ website http://disabilitytreaty.org/, join their mailing list to keep up with new developments, and follow their advice to take action by signing their petition of support, and calling, writing or tweeting at senators.
Monday, September 15, 2014
“A DEAFENING AND DEADLY SILENCE”
I was flooded with relief as I read NFL commentator Jim Brown’s remarks addressing violence against women. Most violence against women, including violence against those who identify as female, is perpetrated by men. Yet intimate partner abuse is often described as a woman’s problem.
Historically in our culture, women’s voices have been discounted. Without the active engagement of men in confronting abuse and other disrespectful behaviors toward women, the elimination of discrimination and abuse of women is unlikely to be achieved.
In his comments, Brown addressed the roots of violence against women in recognizing the systemic cultural problem of treating women disrespectfully. Brown's full remarks may be read and viewed here.
Framing freedom from domestic violence as a basic human right is a good start. That freedom cannot be accomplished through the efforts of women alone. Over the past thirty years more options for woman have developed, providing safer options for those who wish to leave an abusive situation. What has not changed is that at least one in four women in this country are being or have been abused by current or former intimate partners. 1500 women are killed each year by a current or former intimate partner.
Each time abuse against women and girls is ignored or minimized, the problem is perpetuated. Each time men fail to confront another man who disparages women, an opportunity is missed to change that behavior. Women are not without obligations in stopping discrimination against women. But the voices of men are more powerful, particularly when their words are addressed to other men.
As Brown states “…wouldn’t it be productive if this collective outrage, as my colleagues have said, could be channeled to truly hear and address the long-suffering cries for help by so many women?"
“When a guy says, ‘You throw the ball like a girl,’ or, ‘You’re a little sissy,’ it reflects an attitude that devalues women and attitudes will eventually manifest in some fashion.”
Friday, September 12, 2014
Earlier this year, the TED conglomerate was accused of deliberately avoiding speakers addressing abortion-related topics. In the initial coverage in the Nation and elsewhere, a TED spokesperson was quoted as saying that abortion is "more of a topical issue we wouldn’t take a position on," and doesn't fit into TED’s focus on “wider issues of justice, inequality and human rights.”
Within a few hours of the initial report, TED had backpedaled and indicated that abortion was certainly within its ambit. And it posted a request for speaker ideas. Of course, a number of folks immediately come to mind: from the academic ranks, perhaps Rebecca Cook and Joanna Erdman, co-authors of a new collection titled Abortion Law in Transnational Perspective, or Khiara Bridges, a law prof/anthropologist who has written about race and abortion; from the advocacy world, perhaps Nancy Northup or Janet Benshoof, both of whom work for abortion rights on the international stage. An on-line search suggests that none of these folks have had a chance to deliver a TED talk. Further, though the lag time between the speech's delivery and the talk's posting makes it hard to know what's happened since February 2014, it appears that there is still no abortion-focused talk up on the TED website. (Two abortion-related talks are posted on TEDx, but these are from local programs that operate independently of TED).
TED has done a better job of addressing other human rights issues, including US issues such as the justice system and economic inequality. Still, TED doesn't make it easy to find these talks, since there's no search category on its site for "human rights." Further, there are very few (and maybe no) talks with "human rights" in their title. Despite exciting developments on the U.S. human rights front, such as the growth of local human rights initiatives, it does not appear that a single one of the 1800+ TED talks has focused on these local responses to issues of "justice, inequality and human rights."
The U.S. human rights movement has an abundance of eloquent speakers and many compelling stories. Whatever you think of the TED format, it certainly reaches people. The most widely viewed TED talks are watched by millions; the highest viewership for a single video is 15 million.
TED solicits speaker nominations through an on-line nomination form, linked here.
How might TED respond if they had an influx of nominations of highly qualified speakers from the U.S. human rights movement? And how might raising the profile of the movement in the TED space stimulate attention to, and dialogue regarding, US human rights?
Thursday, September 11, 2014
In the wake of the Supreme Court's decision in Burwell v. Hobby Lobby Stores many advocates have expressed concern that the decision opens the door for religiously-couched discrimination based on sexual orientation. The New York Law Journal (Sept. 8) published Laura Redman's careful analysis of the pertinent decisions of the European Court of Human Rights (ECHR) balancing sexual orientation and religious rights. Not surprisingly, the ECHR has taken a different approach to this balancing than that suggested by the Hobby Lobby decision. Given that the Supreme Court has cited ECHR decisions for their persuasive value on several occasions, these decisions may be useful in U.S. advocacy as this issue continues to develop.
More analysis of Hobby Lobby from a human rights perspective is available here.
Wednesday, September 10, 2014
By Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute
With three major human rights treaty reviews happening in rapid succession this year, some U.S. advocates may be experiencing human rights reporting fatigue. And some may find themselves wondering whether they should participate in yet another human rights review, the upcoming Universal Periodic Review (UPR). It’s a good question. And the answer is yes. The UPR is different from the treaty reviews in important respects, and it offers distinct advantages for U.S. social justice advocates.
The UPR, a "peer review" conducted through the UN Human Rights Council, requires that the human rights record of each country belonging to the UN be reviewed once every four years. As a "peer review," representatives from every member of the UN have an opportunity to ask questions of and make recommendations to the country under review. The U.S.’ first UPR occurred in 2010. Round two is scheduled for spring of 2015.
U.S. civil society actively engaged in the U.S.’ first UPR. Advocates filed 103 stakeholder reports, similar to shadow reports submitted in conjunction with the treaty reviews. Advocates from over 70 NGOs traveled to Geneva for the review, at which more than 50 UN member countries engaged the U.S. government delegation on issues ranging from U.S. detention policy and the death penalty to the United States’ failure to ratify key human rights treaties and establish an independent human rights monitoring body. The review culminated in 228 recommendations for ways in which the U.S. can improve human rights conditions at home, many reflecting advocates' input.
But what’s really different about the UPR? After all, robust and effective engagement by U.S. civil society has become a hallmark of the human rights treaty reviews, as well.
One important distinction is that the UPR is based on the UN Charter and the UDHR, in addition to the human rights treaties a country has ratified and any voluntary pledges and commitments it has made. The U.S. UPR isn’t limited to issues that arise under the few human rights treaties the U.S. has ratified. For example, the UPR offers an important opportunity for U.S. advocates to raise issues related to housing, health care, education and other economic, social and cultural rights, regardless of whether and how they relate to the non-discrimination provisions of the CERD and ICCPR.
Also unlike the treaty body reviews, which are conducted by committees of independent experts, in the UPR, countries themselves get to ask questions and offer recommendations. The political nature of the review certainly has some downsides, opening the U.S. government to critique from those who see little value in its subjecting itself to a human rights review by some of the world’s worst human rights violators. Still, the process can place a different type of pressure on the U.S. and may uniquely influence the government’s actions and policies with respect to certain issues. Thus, the UPR can supplement the pressure that the expert treaty bodies exert when reviewing U.S. compliance with its human rights commitments.
Another important feature of the UPR is its requirement that governments engage “all relevant stakeholders, including non-governmental organizations” in the preparation of its report. The U.S. report is due on January 19th. In preparation, the United States has already conducted several thematic civil society consultations, including on access to justice, domestic implementation of human rights treaties, and indigenous issues. More are on the horizon, including a consultation on September 12th on immigration and labor issues and one on October 7th on the environment and human rights. Through these consultations, advocates can participate in substantively focused exchanges with relevant federal agency personnel to raise issues that have not been covered in the treaty reviews, to reinforce concerns recently voiced by the treaty bodies and other experts, to urge the government to address concerns that were raised in the 2010 UPR, or to address human rights concerns that have since emerged.
As with the treaty reviews, reports by U.S. civil society play an important role in the review. The UPR itself is based in part on a document prepared by the Office of the High Commissioner for Human Rights summarizing these “other stakeholder” reports.
But U.S. advocates who want to participate must act quickly. The deadline for filing a UPR stakeholder report for the U.S. review is this Monday, September 15. The good news is that the submissions are necessarily short, and there are many resources to assist advocates who wish to contribute. The US Human Rights Network has created a useful submissions template, and hosts a UPR listserv for interested advocates. The UN Office of the High Commissioner for Human Rights has developed guidance for NGOs participating in the review.
In addition to filing reports, organizations can work more informally to encourage UN representatives to question the U.S. on particular issues during the in-person review, for example by reaching out directly to UN mission representatives based in New York. Here, too, the UPR offers an advantage, since these representatives may be more accessible than the experts comprising the UN treaty bodies.
Finally, a distinct advantage of the UPR is that, at its conclusion, the U.S. is required to affirmatively accept or reject each recommendation that emerges from the review. These commitments, made on a very global and very public stage, offer unique and potentially powerful hooks for future advocacy efforts.
It’s been an extraordinary year of U.S. human rights reviews. Advocates have devoted a tremendous amount of time, energy and other resources to submitting civil society reports and, in some cases, traveling to Geneva to participate in the reviews. The UPR offers an important capstone. The challenge, as always, is making it relevant once everyone comes home.
Tuesday, September 9, 2014
The Hague Institute for Internationalisation of Law (HiiL) is currently running a exciting innovation challenge, this year including ideas about how to promote a living wage in the garment industry. You can review the best competing ideas, culled from many more submissions, and cast your vote for your top choice here.
Two additional HiiL Innovating Justice challenges are also human rights-related. One focuses on testing new ideas for expanding justice; the other addresses scaling up successful innovations that have already been through a testing phase. Now, I have to admit that I have a horse in this race. In the "new idea" category, the NuLawLab is working with both Connecticut and New Haven Legal Services to spearhead an innovative use of on-line gaming to assist unrepresented litigants in advocating for themselves. You can learn more about (and hopefully vote for) our proposal here. Voting ends September 17.
Based in the Netherlands, HiiL is an advisory and research institute for the justice sector. Its mission is to provide crucial knowledge to make law work for people and their organizations. The Innovating Justice Awards have been around for several years, and have generated considerable interest internationally, particularly by opening up dialogues between lawyers and innovators from other disciplines (such as game design). One of the 2013 awards was specifically directed at expanding human rights. It's an exciting model for stimulating policy innovation and social change across the spectrum of justice issues, including in the human rights field.
Monday, September 8, 2014
The recent CERD observations addressed violence against women and the state's need to address ongoing violence, particularly against minority women. Leigh Goodmark reminds us that private entities also play a significant role in perpetuating violence against women when they fail to impose significant sanctions against employees who batter. She writes:
The National Football League’s season started Thursday night, but the NFL has consistently been in the news since February, when Baltimore Raven Ray Rice knocked his then-fiancé unconscious in an Atlantic City casino elevator in February 2014. Following the furor over the NFL’s decision to suspend Rice for only two games, the NFL last week announced a new policy on player-involved domestic violence—a 6 week suspension for the first offense, and at least a year suspension for a second offense. Some have questioned whether the NFL’s stance is unreasonable in cases where criminal liability is not established. The NFL’s answer has been that the personal conduct policy does not require a finding of guilt beyond a reasonable doubt because players in the NFL are held to a “higher standard” of conduct. As well they should be. What is most troubling about the NFL’s historical lack of response is the failure to acknowledge that pro football bears some responsibility for the damage that its players are able to do to their partners. Professional football players are trained to be bigger, stronger, faster, and more aggressive than most elite athletes, let alone their partners. The league encourages men to be violent, pays men huge salaries to be violent, then fails to sanction them for using that violence off the field. The league allows quarterbacks to wear red jerseys during practice; those jerseys tell their teammates not to hit the quarterback too hard. Perhaps the partners of NFL players should be issued those jerseys as well (an idea that came from a long-time Jets fan).
The NFL already has an opportunity to show that it plans to take domestic violence seriously. Since the announcement of the new policy last week, two players, Ray McDonald of the 49ers, and Quincy Enunwa of the Jets, have been arrested for assaulting their partners. Clearly the new policy hasn’t yet served as a deterrent; time will tell whether the NFL’s strong, consistent application of the policy will.
Editor's Post Script: Following McDonald's arrest the 49's coach announced his intention to play McDonald at yesterday's game. He said that McDonald's due process rights were at play. Despite Goodall's earlier announcement that the resonable doubt standard is not applicable to the suspension of players, he did not override the coach's decision saying that he was not going "rush to judgment".
Friday, September 5, 2014
THE UNADDRESSED CONSEQUENCES OF SYSTEMIC RACISM FOR ABUSED WOMEN
Violence against women is recognized as a significant problem in U.S. culture. As is race. African American women face difficulties in seeking and obtaining remedies for intimate partner violence that come more easily to other women. Because of the gross over-representation of men of color, particularly African-American men, in the criminal justice system, women can be discouraged by their communities from seeking police help or cooperating with prosecution where the partner is someone of color. (See Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010) for her work on overrepresentation issues; and Lisa M. Martinson, The Effect of Racism on Domestic Violence Resources, 16 Wisconsin Women’s Law Journal (2001).
There are many substantial reasons why women may not wish to pursue criminal action against intimate partners, particularly when they have children in common with that partner or when prior police response has been dismissive or resulted in calls to child protective services.
Battered women seek police protection to stop the violence, not necessarily to effect arrest. However, when a woman of color is severely injured by an intimate partner, community pressure to prevent her access to state remedies can leave the survivor particularly vulnerable to further abuse. Discouraging any path of protection empowers abusers and encourages an escalation of abuse.
Lack of fairness in our criminal justice system has implications beyond the very real racial bias against men of color, who are much more likely to be arrested by police than their white counterparts and who are sentenced more harshly.
Because of the widespread injustice in arresting, prosecuting and sentencing men of color, women of color are discouraged from accessing some avenues of protection. The stakes are simply too high. Women know that if their perpetrators are men of color, the consequences of state involvement could be severe. Beth Ritchie in her 1996 book, Compelled to Crime, wrote of this constraint. “…[S]ome women abided by the culturally constructed perception that African American women’s role was to be protective of African American men who, indeed, were vulnerable to the effects of institutionalized racism.” And the problem of over-incarceration of men of color has only worsened since the publication of Richie's book two decades ago.
The imperitive to protect African-American men from the real dangers of hyperincaceration can create serious pressure for their abused partners, asking women to value their own needs less than the freedom of their abusers. When a woman is in danger of being killed or suffering other serious injury, should she be discouraged from seeking protection in whatever form she chooses? The subversion of safety needs to the protection of the abusive partner is a dilemma for battered women, particularly for women of color.
The preliminary Concluding Observations of CERD address both violence against women and the over incaceration of African Americans. The impact of this intersection is unaddressed. If the US wishes to commit to stopping violence against women and providing effective remedies, then systemic changes in how men of color are treated within the criminal justice system must be prioritized.
Thursday, September 4, 2014
On Friday, The UN Committee on the Elimination of Racial Discrimination (CERD) released its Concluding Observations, following its review of the United States on August 13 and 14. Northeastern Law student Hannah Adams represented PHRGE at the review and lobbied the committee on the issue of access to justice in civil cases, and the negative outcomes experienced disproportionately by people of color when unrepresented in civil matters where basic human needs are at stake. In their Concluding Observations the Committee made strong recommendations about this issue in Paragraph 23:
Access to Legal Aid
While welcoming the steps taken by the State party to improve access to justice by indigent persons, such as the Access to Justice Initiative launched in March 2010, the Committee remains concerned at the ongoing challenges faced by indigent persons belonging to racial and ethnic minorities to effectively access legal counsel in criminal proceedings in practice. It also reiterates its concern at the lack of a generally recognized right to counsel in civil proceedings (CERD/C/USA/CO/6, para.22), which disproportionately affects indigent persons belonging to racial and ethnic minorities to seek an effective remedy in matters such as evictions, foreclosures, domestic violence, discrimination in employment, termination of subsistence income or medical assistance, loss of child custody, and deportation (art. 6).
The Committee reiterates its previous recommendation that the State party adopt all necessary measures to eliminate the disproportionate impact of systemic inadequacies in criminal defence programmes on indigent defendants belonging to racial and ethnic minorities, including by improving the quality of legal representation provided to indigent defendants and ensuring that public legal aid systems are adequately funded and supervised. It also recommends that the State party allocate sufficient resources to ensure effective access to legal representation for indigent persons belonging to racial and ethnic minorities in civil proceedings, particularly with regard to proceedings that have serious consequences for their security and stability, such as evictions, foreclosures, domestic violence, discrimination in employment, termination of subsistence income or medical assistance, loss of child custody, and deportation proceedings.
The Committee also recommended that the U.S. provide for legal assistance in all immigration-related matters in Paragraph 18.
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Wednesday, September 3, 2014
CRC Committee to Focus on Social Media and Children’s Rights
On September 12, 2014, the UN Committee on the Rights of the Child will host a Day of General Discussion on "Digital Media and Children's Rights." Days of General Discussion can be important not only for the substantive information presented but also because they can spur the development of a new General Comment on an emerging or critical rights issue. Across a range of children’s rights issues—from education rights to trafficking and other forms of exploitation—technology and social media can be employed either to facilitate children’s rights violations or to help children realize their rights.
Although the media has received attention by human rights treaty bodies over the years—the CRC Committee held a day of general discussion on children and the media in 1996—rapid innovation in social media and information technology prompt important new questions. And as all of the major human rights instruments were drafted years or even decades before widespread use of the internet and social media, many of these questions are not addressed in the text of treaties.
Numerous rights enshrined in the Convention on the Rights of the Child are implicated by technology, including the principle of non-discrimination (Art. 2), the best interests of the child (Art. 3), the right to be heard (Art. 12); freedom of expression (Art. 11), freedom of association (Art. 15); the right to access information (Art. 17); freedom from violence (Art. 19); the right to education (Arts. 28 and 29); the right to rest, leisure, play and the right to enjoy one’s culture (Art. 31); protection from sexual exploitation and sexual abuse (Art. 34); protection from all forms of exploitation (Art. 36).
The CRC Day of General Discussion will include two working groups: (1) children’s equal and safe access to digital media and information and communications technology (ICT); and (2) children’s empowerment and engagement through digital media and ICT.
Harnessing technology to promote and sustain human rights, while simultaneously working to minimize harms associated with or facilitated by technology, must be on the agenda of all human rights organizations and treaty bodies. Thus, the outcomes of this Day of General Discussion merit attention by human rights advocates, regardless of their issue of focus.
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.