Monday, July 21, 2014
Last Wednesday, a federal judge in California declared the state's administration of the death penalty to be unconstitutional. Critical to the decision are the delays in exercise of the dealth penalty in California, which currently run up to 25 years after sentencing. Finding such delays to violate the 8th's amendment's prohibition on cruel and unusual punishment, the Court looks only to domestic precedent and does not explicitly address human rights law. However, as litigation of this issue continues in California and elsewhere, we can expect that the human rights arguments will gain wider attention.
The delays in California are well-documented and have even been the subject of human rights investigations. For example, in 2013, the International Federation of Human Rights Organizations (FIDH) and the Center for Constitutional Rights conducted a fact-finding mission in California and Louisiana to investigation human rights violations in administration of the death penalty. A section of the report specifically reviews the extraordinary delays in the California system, some of which are caused by the dearth of qualified attorneys to handle the prisoners' post-conviction appeals.
There is also substantial international jurisprudence on the human rights impact of prolonged time on death row. The European Court of Human Rights has found excessive delays in death penalty administration to constitute torture and inhumane treatment in violation of the European Convention of Human Rights. According to Columbia Professor Sarah Cleveland, quoted in the New York Times in 2011, “Although concerns about the human impact of excessive time spent on death row have received little attention in this country, the ‘death row phenomenon’ — including lengthy time on death row — has been recognized as inhuman punishment and illegal throughout Europe since the 1980s.” A number of scholarly articles and advocacy reports synthesize this research on the "death row phenomenon."
Past efforts to challenge delays in California have been unsuccessful, and state courts have repeatedly rejected assertions that the delays in death penalty administration violate federal, state and international human rights law. However, last Wednesday's ruling may signal a dramatic change in that posture. Importantly, the relevant international law makes clear that there's even more support for the District Court's position than is apparent on the face of the decision.
Friday, July 18, 2014
Sital Kalantry sends along her post which captures the promotion of misogyny through cultural stereotyping. This piece also appeared in Huffington Post.
In recent years, politicians in almost half the states in the country as well as a majority of the U.S. House of Representatives have tried to pass anti-abortion laws to, purportedly, address a bias against girl children among Asian Americans and eight states have passed such laws. At this moment, the Asian American population is the fastest-growing racial group in the country, in part due to the growing number of Asian immigrants -- which now surpasses the number of immigrants from Latin American countries. This legislation has been fueled by a combination of implicit bias, factual inaccuracies and harmful racial stereotypes that Asian Americans have a preference for sons. People assume that just because there are so many more boys than girls born in some Asian countries that when people from those countries migrate to the United States, they also abort female fetuses due to a preference for sons.
Setting aside abortion politicking, political ideology and religious dogma, we set out to closely examine the claims fueling legislation banning sex-selective abortion in the United States. Legal scholars from the University of Chicago Law School led a multidisciplinary team that undertook an exhaustive review of U.S. census data and conducted field-work in India, and recently published a new study that finally unravels the "evidence" fueling this anti-Asian campaign.
In our new report, Replacing Myths with Facts: Sex-Selective Abortion Laws in the United States, we find that this legislation is based on myths and misinformation. In fact, while sex-selective abortion bans have proliferated based on a supposed concern over Asian immigrant birth patterns, the reality is that Asian Americans tend to have more girls than white Americans.
The main empirical data on which legislators have relied to pass laws banning sex-selective abortion is a study of 15-year-old U.S. census data. In analyzing more recent U.S. census data from 2007 to 2011, our team of economists found that Asian Americans do not exhibit a preference for sons (or an aversion for daughters). These birthing patterns are very different than what is happening in India and China.
While it is true that certain foreign-born Asian American groups are more likely to have boys when they already have two girls, they are also more likely than white Americans to have girls when they already have two boys. When white American parents seek a baby of a certain sex so that their family has both boys and girls many consider that desire "family balancing." When Asian American parents act on the same desire, it's being called "gendercide."
Among the myths dispelled by the report is that the United States lags behind the rest of the world in prohibiting abortion motivated by sex selection. "Experts" in state after state have claimed that the United States is the only "advanced" country in the world that does not prohibit sex-selective abortion. That is flatly untrue. Only four countries other than the United States explicitly ban this practice: China, Kosovo, Nepal and Vietnam. Most countries that are concerned about sex selection have laws that ban the use of assisted reproductive technologies for sex selection purposes. None of the legislation introduced or enacted in the United States addresses the use of assisted reproductive technologies to sex select. This omission suggests that the primary motivation behind sex-selective abortion bans is to limit access to abortion generally.
In all, our report identifies six major myths being used to promote sex-selective abortion bans in the United States. Once these myths are exposed and the facts are brought to light, all that remains in support of these laws are harmful stereotypes about Asian Americans. We do not support sex selection, but we oppose laws that are passed based on racial stereotypes.
Co-Author: Miriam Yeung, Executive Director, National Asian Pacific Women's Forum
Thursday, July 17, 2014
Is There a Scientist in the House?
by Risa Kaufman
I just returned from a meeting of the American Association for the Advancement of Science’s Science and Human Rights Coalition. This Coalition of the AAAS is a network of engaged scientists and scientific and engineering organizations dedicated to promoting and protecting human rights. At the meeting, I learned about “On-call Scientists,” a project of AAAS’s Scientific Responsibility, Human Rights & Law Program. On-call Scientists is a remarkable resource for the domestic human rights legal advocacy community. Through it, AAAS matches volunteer scientists from a broad spectrum of disciplines (including statistics, psychiatry, public health, sociology, geography, economics, engineering, and mathematics), with human rights organizations needing specific scientific expertise. The volunteers provide technical assistance to human rights organizations in all aspects of advocacy, such as monitoring and reporting, survey design, and litigation. Imagine the possibilities: a seasoned geographer mapping housing segregation; a public health expert helping to craft recommendations to effectuate the right to health; an economist analyzing government expenditures on education. AAAS facilitates the relationship by matching host organizations with volunteers. Human rights organizations interested in availing themselves of this unique and valuable service begin by filling out an on-line form. The full process can be found here. I encourage domestic human rights advocates to share examples of successful collaborations.
Wednesday, July 16, 2014
A few weeks ago, a consortium of international activists convened in Geneva to launch a global Campaign the End Sex Discrimination in Nationality Laws. The campaign announcement followed on a report issued by Equality Now earlier this year chronicling sex-based inequities in citizenship laws as well as attention to the issue by the UN Refugee Agency. The U.S., which treats foreign-born out-of-wedlock children differently depending upon whether their citizen parent is a mother or a father, is one of the countries targeted for reform by the Equality Now campaign.
The U.S. Supreme Court most recently upheld this sex-based treatment in Flores-Villar v. United States, and in Nguyen v. INS, 533 U.S. 53 (2001), the majority (5-4) of the Supreme Court opined that the sex-based distinction was justified by innate biological differences between men and women. Justice O'Connor offered a pointed dissent, joined by Justices Ginsburg, Breyer and Souter. The dissenters' position is now strengthened by an excellent article by Professor Kristin A. Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L. J. 2134 (2014), which draws on close readings and careful analysis to powerfully challenge that Supreme Court majority's conclusion -- and the perpetuation of sex-based citizenship distinctions -- on historical grounds.
According to the article abstract:
The citizenship status of children born to American parents outside the United States is governed by a complex set of statutes. When the parents of such children are not married, these statutes encumber the transmission of citizenship between father and child while readily recognizing the child of an American mother as a citizen. Much of the debate concerning the propriety and constitutionality of those laws has centered on the extent to which they reflect gender-traditional understandings of fathers’ and mothers’ respective parental roles, or instead reflect “real difference.” Based on extensive archival research, this Article demonstrates that an important yet overlooked reason for the development of gender- and marriage-based derivative citizenship law—jus sanguinis citizenship—was officials’ felt need to enforce the racially nativist policies that were a core component of American nationality law for over 150 years. The complex interaction of gender, race, family law, and nationality law charted here demonstrates that gender-based jus sanguinis citizenship is not a biologically inevitable feature of American nationality law, as has been argued, but is in important respects the product of choices made by officials engaged in a racially nativist nation-building project. This history also suggests that what is at stake in modern challenges to gender-based citizenship laws is not only the constitutionality of those statutes, but a mode of reasoning about citizenship, family, gender, and race that continues to shape the practice and politics of citizenship in ways that are often obscured in modern citizenship debates.
Tuesday, July 15, 2014
Proposals for Civil Society to Help Improve Human Rights Consultations with the U.S. Government
About a decade ago, a broad group of human rights advocates in the U.S. began actively engaging the U.S. Government through human rights consultations. These consultations are designed to provide an opportunity for civil society to engage the U.S. Government directly about its international human rights obligations and commitments. Under the Universal Periodic Review process, these consultations between government and civil society are specifically “encouraged” by the U.N. Human Rights Council. For example, in 2010 human rights consultations have included a series of consultations documented on the humanrights.gov website including the consultation on access to justice previously mentioned on this blog, a consultation on indigenous human rights issues held in Oklahoma, and the racial discrimination consultations held earlier this week.
There has been quite a bit of advocacy by human rights advocates with U.S. government officials organizing the consultations, including by the U.S. Human Rights Network in particular, to improve the efficiency and efficacy of the consultations. That advocacy has let to substantial changes, including but not limited to the addition of oral responses by government officials to civil society presentations during consultations, the inclusion of some local and state officials as well as federal officials present at consultations, and some consultations being held outside of D.C.
However, there is still room for improvement. Many of us leave these meetings feeling like our time could have been spent more effectively elsewhere. It is more or less the same cast of characters advocating for the same issues on the civil society side. On the government side, it is a lot of the same officials listening to the same presentations, though there are some new officials at each meeting. Often the government reports and responses at the human rights reviews in Geneva are not, or only somewhat, responsive to the civil society presentations at these consultations and other meetings.
With the perfect storm of U.N. human rights reviews taking place this year, there will be many additional human rights consultations with the U.S. Government in the months ahead. With more than a decade of experience with these consultations behind us, I propose that human rights advocates in the U.S. step back, take stock, and look at what we could be doing differently, towards more effective and impactful consultations and advocacy in general.
Below, I propose just a few steps that civil society should take. These proposals aim to bring the consultations more in line with the human rights framework and human rights principles, such as the rights to civic participation, equality, and self-determination. I also want to encourage others to weigh in with their own proposals, as well.
Towards more effective and impactful human rights consultations with the U.S. Government, civil society should:
1) Prioritize supporting persons directly affected by human rights issues to speak during the consultations. Too often the civil society presenters are academics, students, lawyers, and others speaking on behalf of persons directly affected. We, as civil society, need to do a better job of making sure that the voices of the people directly affected are brought to the table. Not only because presentations made by persons directly affected are more impactful, but because it is empowering and fulfilling for the people presenting. Presentations by persons directly affected can be recorded and played during the consultation, video conferencing technology should be available, and, as a last resort, testimony can be read aloud if travel is impossible and technology fails.
2) Offer to host human rights review consultations outside of D.C. The U.S. Government should be organizing most, if not all, human rights consultations outside of D.C. Persons directly affected by the human rights issues are most often not in D.C. and it is difficult and expensive to have civil society travel to D.C. Moreover, technology is available to live stream consultations to government offices in D.C., making travel for the government officials less of a problem. To encourage consultations to be held outside of D.C., civil society should offer to host the consultations. For example, universities across the U.S. could host the human rights consultations. Universities have large event spaces that go largely under used during the summer months, as well as the necessary communications technology to live stream the events. Universities also have an interest in having their students benefit from observing and participating in these consultations.
3) Make thoughtful and tangible recommendations and asks of the government. Civil society presenters can do a better job of making requests that keep in mind which government agencies are participating in the consultation and what policies are within their reach to change or effect. We may not know exactly which government officials are present, but we should know which agencies are present and recent advocacy by civil society has led to a broad group of agencies and high-level officials being present at consultations. Presenters can tailor requests keeping in mind the audience. Requests in shadow reports and written submissions can be and should be broader, but with many civil society members desiring to present and limited time for presenting, requests made during consultations should be relevant to the officials in the room.
Monday, July 14, 2014
Two new publications (one authored by, and one edited by, Austin Sarat) offer perspectives on two important human rights issues facing the U.S.: the death penalty, and efforts to rebuild New Orleans post-Katrina.
On the death penalty: Austin Sarat's new book Gruesome Spectacles: Botched Executions and America's Death Penalty (Stanford UP 2014) is noted here. Sarat's investigation, a careful historical analysis, uncovers that "about three in a hundred American executions over the past century or so have gone badly wrong." The botched execution in Oklahoma is perhaps the most recent example. Note that the above book link includes a fascinating, in-depth interview with Sarat about the book and his investigation.
On Katrina issues, Austin Sarat is the editor of Studies in Law, Politics, and Society (Volume 63), Emerald Group Publishing Limited. Jean Carmalt's contribution to this volume, Human Rights in Context: International Law and Spatial Injustice in New Orleans, Louisiana, describes the impact of NGO advocacy post-Katrina in shaping UN official's understanding of the relationship between geography and human rights, and the spatial dimensions of the human rights violations. Carmalt previously wrote on the uses of geography in human rights work in the Human Rights Quarterly, here.
Friday, July 11, 2014
In case you missed it, the Atlantic ran a terrific essay on May 28 titled Companies Commit Human-Rights Abuses in America, Too: And Yet Americans Tend Not to Describe the Exploitation that Way, by Christine Bader. We could call this another instance of American exceptionalism - and the comments posted to Bader's article bear out the idea that many readers find minimum wage violations, work exploitation and even trafficking unworthy of the "human rights violation" appellation when the abuses happen in the U.S.
In the weeks since this article appeared, the UN has approved negotiation of a binding treaty on business and human rights for transnational corporations. However, exceptionalism appears to run deep. The U.S. voted against initiating these negotiations and has urged other nations to boycott the process. The European Union is also opposing the treaty proposal. For a fascinating, in-depth look on where things stand with this contentious process, see this July 10 article by reporter Carey Biron.
Meanwhile, many transnational companies -- such as Sodexo and Christine Bader's former employer BP -- have embraced human rights language and the existing Guiding Principles on Business and Human Rights (plus public pressure) have clearly had some impact in encouraging and promulgating such analyses. The question is not whether businesses have identified the human rights issues that intersect with their work, it's accountability.
One of the U.S.'s arguments against the treaty is that there are legal difficulties with holding a private party accountable under international law, which generally binds nations rather than private actors. But there are no such impediments to implementing human rights standards in domestic law, or -- on the international level -- to holding nations accountable for establishing and enforcing such binding domestic standards. The U.S. resistance to a binding treaty suggests, in fact, the the government is fully aware of the many corporate human rights violations in the U.S. that would come to light with more rigorous domestic enforcement of human rights standands. And that more rigorous scrutiny and enforcement might frustrate the modus operandi of many companies in the manufacturing sector and others.
Maybe the U.S. position is not a case of American exceptionalism, after all, but more accurately, corporate protectionism.
Thursday, July 10, 2014
Wednesday, July 9, 2014
Co-editor Brian Howe discusses the lengthy US history of racial discrimination in jury pool selection and the contemporary consequences of actual and threatened denial of a racially balanced jury to defendants of color. Writes Brian:
The impact of race on the US criminal justice system has been one of the most significant human rights issues in our country's history.
Tuesday, July 8, 2014
In just a few months, on September 20, 2014, Canada will open its new Human Rights Museum, reputedly the first museum of its kind in the world. Located in Winnipeg, the Canadian Museum for Human Rights is supported by private donations, the national Canadian government, the provincial government of Manitoba and the city government of Winnipeg. The Museum was created through national legislation passed in 2008, with the purpose of exploring "the subject of human rights, with special but not exclusive reference to Canada, in order to enhance the public's understanding of human rights, to promote respect for others and to encourage reflection and dialogue."
At a time when "human-centered design thinking" is in vogue, the museum is putting those principles into practice in designing its educational exhibits. A major focus of the initial exhibits will be storytelling, and thousands of interviews were conducted around the country in preparation for mounting these exhibits. The museum's website promises, for example, that "equality rights are relayed through stories about Indigenous Peoples, women, children, persons with disabilities and the LGBTTQ* community."
The museum has not been completely without controversy, however. A number of groups have expressed concern that the exhibits will privilege some human rights violations over others, through the placement and relative size of the exhibits. Recently, First Nation groups in Winnipeg have criticized the museum's reliance on a water source traditionally used by native tribes; the museum has responded that the city of Winnipeg made that choice, not the museum.
Should there be a space on the Washington Mall for a U.S. counterpart to this Canadian innovation? Is it preferable to leave human rights to be addressed through private, independent museum initiatives such as the planned Armenian Genocide Museum of America, which can be more openly critical of the U.S. government's actions? Or are U.S. human rights issues already adequately addressed through the Holocaust Memorial Museum and the National Museum of the American Indian, among other national institutions?
Monday, July 7, 2014
The Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc. is an affront to all women’s human rights, but may pose particular challenges for women subjected to two particular forms of intimate partner abuse—economic abuse and reproductive abuse. Huge numbers of women subjected to abuse report that their partners restrict their access to economic resources. Reproductive abuse—which includes denying women access to birth control—is a lesser known but powerful form of abuse. As Alyssa Peterson at the Center for American Progress explains (http://talkpoverty.org/2014/07/03/hobby-lobby-supreme-court-harms-survivors-domestic-violence-low-income-women/), for those women who are denied access to economic resources, an employer’s refusal to cover contraception as part of their insurance plan may mean that those women are unable to access contraception at all. As the Court recognized in Planned Parenthood v. Casey, and as Justice Ginsburg began her dissent in Hobby Lobby, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 856 (1992). The Court’s decision in Hobby Lobby will operate to deny some women subjected to both economic and reproductive abuse the rights of full citizenship.
Friday, July 4, 2014
On this July 4, it's appropriate to note that founder John Adams' influence persists today, and supports U.S. examination of comparative and international law.
In late 2013, the Massachusetts Supreme Judicial Court decided Diatchenko v. District Attorney. The issue in the case was whether the U.S. Supreme Court's decision in Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), was retroactive. In Miller, the Court held that imposition of a mandatory sentence of life in prison without parole on individuals who were under the age of eighteen at the time they committed murder is contrary to the prohibition on "cruel and unusual punishments" in the federal Constitution's Eighth Amendment.
Determining that the Miller ruling was substantive, the Massachusetts court accorded retroactive effect to the U.S. Supreme Court's decision in Miller. And in footnote 16 of its retroactivity decision, the Massachusetts SJC put the Diatchenko opinion in an international and historic context:
"In concluding that the imposition of a sentence of life in prison without the possibility of parole on juveniles under the age of eighteen violates the constitutional prohibition against "cruel or unusual punishment" in art. 26, we join a world community that has broadly condemned such punishment for juveniles. The United Nations Convention on the Rights of the Child, "ratified by every nation except the United States and Somalia, prohibits the imposition of life imprisonment without the possibility of release . . . for offences committed by persons below eighteen years of age" (quotations omitted). Graham v. Florida, 560 U.S. at 81, quoting United Nations Convention on the Rights of the Child, art. 37 (a), Nov. 20, 1989, 1577 U.N.T.S. 3. As John Adams recognized over 215 years ago, we belong to an international community that tinkers toward a more perfect government by learning from the successes and failures of our own structures and those of other nations. See J. Adams, Preface, A Defence of the Constitutions of Government of the United States of America (1797)."
Thursday, July 3, 2014
How can localities move beyond symbolic human rights measures to ensure actual implementation and results? Co-editor Mariah McGill reports on a promising new development in living wage enforcement that may provide a model for others. Writes Mariah:
As Fran Quigley recently noted, the issue of a livable wage is being raised in communities throughout the United States. In recent months, a variety of states and cities have passed laws and ordinances establishing higher minimum wages to address high costs of living and increasing inequality across the country.
The City of Burlington, Vermont passed just such an ordinance in 2001. Under the ordinance, employers who have contracts with the City of Burlington must pay a minimum hourly wage of almost $14 per hour if they offer employer-sponsored health insurance and almost $16 per hour if no health insurance benefits are offered.
While the goals of the Burlington ordinance were laudable, the measure was “mainly symbolic.” According to a 2013 report, the City of Burlington largely failed to enforce the ordinance for the first twelve years of its existence. In light of the new report, Burlington recently revised its ordinance to create and fund an independent accountability monitor that would educate employees about their rights under the ordinance, staff an employee hotline, investigate complaints and refer legitimate employee complaints to the City Attorney. On Monday, June 23rd, the Burlington City Council appointed the Vermont Workers’ Center (VWC) as the Designated Accountability Monitor for the livable wage ordinance for one year.
The Center is a grassroots organization who has adopted a human rights framework for their organizing and advocacy efforts and has played a pivotal role in a number of progressive legislative victories including single-payer health care and universal pre-school. VWC played a role in getting the original ordinance passed and in updating the ordinance in 2014. Given their commitment to the livable wage issue and the strong grassroots network they already have in place, the Workers’ Center is poised to help finally ensure compliance.
As Burlington’s experience indicates, the passage of a livable wage ordinance is not sufficient to protect peoples’ economic rights. Currently, only a few of the municipalities with livable wage ordinances on the books actually monitor compliance. Upon conclusion of its one year contract with the City of Burlington, the VWC must submit a report to the City reporting its progress in monitoring compliance with the ordinance. It will be interesting to see whether an independent monitor actually results in more employers complying with the ordinance and whether the Center successfully incorporates the human rights framework into the trainings, outreach and other activities. Burlington’s experience may prove helpful for other communities who want to ensure that the livable wage ordinances they pass actually work as promised.
Wednesday, July 2, 2014
The reporting process under human rights treaties is undervalued in the United States. Critics of the international human rights regime simultaneously criticize the reporting process as weak and ineffective and as an intrusion on sovereignty. When it works well, however, the reporting process not only is valuable but in fact is a reaffirmation of a state’s sovereignty.
In a new article, A Child Rights Framework for Addressing Trafficking of Children, I review the U.S. experience reporting to the UN Committee on the Rights of the Child under the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography. The US government has been reviewed twice – in 2008 and 2013 – by the CRC Committee on its compliance with the Optional Protocol on the Sale of Children and the Optional Protocol to the CRC on the Involvement of Children in Armed Conflict, both of which the US ratified in 2002 under then President Bush.
Following its first review of the US, the UN Committee on the Rights of the Child issued its Concluding Observations, which included a number of recommendations pressed for by US-based NGOs. Subsequent to that, Carol Smolenski, Executive Director of ECPAT-USA, and I did a mini “roadshow” in various cities in the US, reporting on the process and the Committee’s recommendations. This led to congressional briefings in the House and Senate, and following that ECPAT-USA (the lead NGO for the alternative report to the CRC Committee) met with then-Senator Biden’s office. Biden then sponsored a bill that became the PROTECT Our Children Act of 2008. While that piece of legislation didn’t solve everything, it advanced efforts to respond to child trafficking in the US. And it included provisions that were responsive to the Concluding Observations, including the Committee’s call for the US to develop a national plan of action.
That review under the Optional Protocol on the Sale of Children reinforces several important points about the human rights treaty reporting process. First, the Concluding Observations need to be seen not as the end of the process, but rather as the beginning of a critical stage. Advocates need to be active in bringing the message home and strategizing about how to address gaps in human rights practices at home that are identified during the review process.
Second, sovereignty is not only intact, it’s strengthened through this process. Child advocates working on the ground in the US on issues covered by the Optional Protocol had significant input in the process. And after the Concluding Observations were issued, it was the US government that had full authority to decide how it would implement those recommendations. All of this demonstrates that the review process is most of all a process for policymakers and advocates in the country being reviewed.
Third, ultimately the reporting process is just a formal mechanism for monitoring and evaluation of one’s own practices. Evaluating what you are doing on any issue (human rights, public health, education, etc.) is essential. It’s how we know the difference between doing something and doing something effective. And having outside input makes sense, because we all know that self-evaluations can miss critical opportunities. In short, the human rights treaty reporting process facilitates our ability to identify best practices for ensuring the rights of every individual.
For all these reasons, the reporting process should be welcomed and supported by all levels of government as well as civil society.
Tuesday, July 1, 2014
Guest blogger Erin Smith of the Columbia Law School Human Rights Institute posts today on a new report chronicling the domestic campaign to end the sentence of "juvenile life without parole" (JLWOP). Writes Erin:
In the United States, what role do human rights frameworks and strategies play in changing domestic policy? What does it mean to do “human rights work” in the U.S.? And how does conceiving of domestic social justice advocacy issues in human rights terms add value? Columbia Law School’s Human Rights Institute has released a case study exploring these questions in the context of efforts to end the practice of sentencing children to life in prison without the possibility of parole. The case study is based on interviews with a number of leading advocates and experts working on the issue.
Juvenile life without parole—or “JLWOP,” as it is often called—has been universally condemned in international human rights instruments, and the United States is the only country in the world to allow the practice. A number of advocates, including private attorneys, academics, and advocates focused on human rights, criminal justice, racial equality, and children’s rights, have been working across the U.S. to bring an end to the practice. They have applied a broad range of human rights strategies in their work, and they have met with success in recent years, through both courts and legislatures.
The case study describes and provides examples of each of the following human rights strategies at work against JLWOP: (1) citing to foreign and international practice, both in courts and with policymakers and the media, (2) challenging JLWOP in regional and international forums, including the Inter-American Commission on Human Rights and U.N. treaty bodies, (3) documenting the scale, scope, and racial disparities in the imposition of JLWOP in the U.S., and, in more personal terms, describing its impacts on individuals, families, and communities, (4) reframing JLWOP as an issue of children’s rights, fairness, dignity, and redemption, rather than merely a juvenile justice problem, (5) working with crime victims and family members of crime victims, and (6) talking with incarcerated individuals about human rights and their relevance to JLWOP.
In the past ten years, these human rights strategies have played an important role in challenging states’ use of JLWOP. Human rights have contributed to increased media attention on the issue, two U.S. Supreme Court decisions limiting the practice, and legislative changes at the state level. Using human rights standards and strategies has also had the additional benefit of helping advocates to identify new partners and to build new coalitions and alliances, including with faith-based groups and victims’ groups. These strategies and frameworks will continue to play a role as advocates advance their work on this issue in the coming years.
Looking beyond juvenile life without parole, we hope that this case study will provide advocates with a better view of the value that human rights can provide in supporting and advancing domestic social justice advocacy in the United States.
Monday, June 30, 2014
Co-editor Fran Quigley reports from Indiana on a human rights issue -- the lack of living wages -- that faces workers across the country. As Fran describes, some workers are organizing effectively to raise wages across sectors, and some academics see a historic opportunity to reduce the wealth gap, but to date, the impacts are uneven. Writes Fran:
Not long ago, I was speaking with a woman who works as a housekeeper at a downtown Indianapolis hotel. The job is demanding, and she has done it well for nearly seven years. Yet, even with the occasional tip, she usually earns under ten dollars an hour.
That amount is far below any estimate of a living wage in our community. Among the many things this worker cannot afford is health insurance. An unexpected medical bill had resulted in the garnishing of her already meager paycheck.
She does not mind the hard work of scrubbing toilets and changing sheets. She just wants a paycheck she can survive on. "I have always seen housekeeping as a noble profession," she says. "Someday, I want to be one of those moms who can send kids to college and have all the bills paid. Why can't I do that as a housekeeper?"
It is an important question. And she is not the only one asking it.
The good news is that the national economy has been steadily adding jobs since the recession ended in 2009. The bad news is that many of the new jobs are in the low-wage service sector. Many of the new jobs pay so poorly that some pundits have taken to using the term “McRecovery.”
Indiana is an unfortunate example of the trend. A recent report from the Indiana Institute for Working Families points out that our state has been leading the region in adding jobs that pay poverty-level wages.
But, if we are adding jobs like janitors and dishwashers and cashiers because we need those roles filled in our 21st century economy, is it inevitable that they be low-paying jobs?
The answer is no, according to Zeynep Ton, an MIT Sloan School of Management professor. Ton argues in her book, The Good Jobs Strategy: How the Smartest Companies Invest in Employees to Lower Costs and Boost Profits, that service-oriented businesses benefit by paying good wages to their workers. Costco is often held up as a shining example of this phenomenon. But every community, including Indianapolis, has plenty of locally-owned businesses proving the same point. They pay their workers a living wage, and reap a skilled, stable workforce in return.
The famed urban studies academic and writer Richard Florida sees an historical opportunity in such arrangements, saying that the upgrading of U.S. low-wage service jobs can follow the 20th century path of manufacturing jobs becoming more secure, better-paying work. Former U.S. Secretary of Labor Robert Reich echoes the point, saying that our country’s growing wealth gap can be addressed by better pay in service occupations that are resistant to global competition and labor-replacing technologies.
There are multiple ways to achieve that goal. Manufacturing workers in the early 20th century improved their jobs in large part due to unionization. That can work for service sector employees, too.
In just the past few years, food service workers at IUPUI, Butler University, Marian University, and the Indianapolis International Airport have all raised their wages by banding together to join the union UNITE HERE. Security guards and janitors here are doing the same through the Service Employees International Union (SEIU). Research shows that unionization in the service sector raises wages and increases access to benefits.
A more sweeping solution is to decouple health insurance from employment, and the Affordable Care Act is an important step in that direction. The most direct answer is to raise the minimum wage, which has already been accomplished in over 140 communities across the country. Raise the Wage Indiana coalition members are organizing around this issue across our state, and President Obama and Congressional Democrats are pushing hard for a federal increase.
Americans in general, and Hoosiers in particular, are justifiably proud of the role that our collective work ethic has played in the development of our communities. But that legacy is in jeopardy if the only jobs available do not offer wages that are sufficient to make ends meet. For those of our neighbors who are working long hours cooking and cleaning and keeping us safe, it is time to make all work pay a living wage.
Sunday, June 29, 2014
Last week, a coalition of groups filed a complaint with the UN Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation charging Detroit with violating the human right to water. Within a few days, UN officials responded in a joint statement of three Special Rapporteurs: the Special Rapporteur on the Right to Water, the Special Rapporteur on the Right to Adequate Housing, and the Special Rapporteur on Extreme Poverty and Human Rights. Catarina de Albuquerque, the human right to water Special Rapporteur, stated definitively that “Disconnections due to non-payment are only permissible if it can be shown that the resident is able to pay but is not paying. In other words, when there is genuine inability to pay, human rights simply forbids disconnections.”
de Albuquerque is the first individual to serve as the UN Special Rapporteur on the Right to Safe Drinking Water and Sanitation. Appointed in 2008, she has been indefatigable in defining the contours of the newly articulated -- but long implicit -- right. In particular, she has been ready to scrutinize high income countries such as the U.S. for their shortcomings while also urging more explicit incorporation of human rights norms into the U.N.'s Millennium Development Goals.
As de Albuquerque nears the end of her six-year tenure, a process is in place for naming her successor. New applicants for the position must file their materials in the next few days, and a new appointment will be made in September.
In the meantime, however, the current Rapporteur has effectively ensured continuity in the review and monitoring of the Detroit situation by reaching out to the two other Special Rapporteurs, both of whom were appointed in 2014. This collective attention to the Detroit situation not only adds weight to the UN's scrutiny, but also ensures that the issue will remain on the front burner even as the Human Right to Water rapporteurship transitions over the next few months.
Friday, June 27, 2014
During its upcoming Universal Periodic Review in 2015, the U.S. will report on its overall human rights record under the principles of the Universal Declaration of Human Rights, as well as its compliance with specific treaty obligations. Though the U.S. has not ratified CEDAW, principles of equality and the importance of supporting families are pertinent under the UDHR.
The World Policy Forum, an excellent source of authoritative data on issues relating to family, work, and inequality, posts this dramatic map showing just how isolated the U.S. is in its failure, at the national level, to provide ANY paid leave to mothers of infants. The U.S. shares this distinction with Suriname and Papua New Guinea; every other country in the world provides at least some assurance of paid leave to mothers, if not to both parents.
The U.S. is also isolated in its failure to ratify CEDAW. Only seven countries in the world -- the U.S., Sudan, South Sudan, Somalia, Iran, Palau and Tonga -- have failed to ratify the treaty. Earlier this week, the Senate Foreign Relations Committee's Subcommittee on International Operations and Organizations, Human Rights, Democracy and Global Women's Issues held an important hearing on combatting violence and discrimination against women. An unprecedented number of Senators, both men and women, participated in the hearing and called for ratification of CEDAW as a tool to address violence against women and girls across the globe.
The upcoming UPR process will provide an important occasion to assess U.S. policies relating to gender equality against international human rights standards. While CEDAW ratification would help the U.S. provide leadership in combatting violence against women globally, the World Policy Forum's data provides dramatic evidence of the work that CEDAW could do to further women's rights at home.
Thursday, June 26, 2014
On June 24, Columbia Law Professor Sarah Cleveland was elected to the UN Human Rights Committee, according to official UN sources. Professor Cleveland was nominated by the United States Government in March to succeed Harvard Law Professor Gerald Neuman. She will take up her new position in 2015 for a four year term.
Active in implementation of human rights both domestically and internationally, Professor Cleveland has played a particular leadership role in domestic human rights implementation. Notably, in addition to her scholarship, Professor Cleveland appeared as an amicus in the recent U.S. Supreme Court case of Bond v. U.S., arguing that the Offenses Clause of the Constitution provided authority for enactment of the statute at issue in that case. She was also an amicus participant in Hollingsworth v. Perry, arguing that comparative jurisprudence could aid the Supreme Court's decisionmaking on marriage equality.
By the terms of its governing treaty, the Human Rights Committee comprises 18 independent experts of "high moral character and recognized competence in the field of human rights." At a time when U.S. activists are increasingly adding international advocacy to their toolkit, Sarah Cleveland is a spectacular addition to the HRC.
Wednesday, June 25, 2014
The Winter 2014 issue of the Duquesne Law Review, Volume 52 is a trove of commentary on the relevance of comparative law to U.S. jurisprudence. Focused on Harvard Professor Mary Ann Glendon's work on comparative law, the issue begins with an essay by Professor Glendon titled Comparative Law in the Age of Globalization. Glendon's article examines a series of well-known Supreme Court cases (Lawrence, Roper, Graham) relying on comparative law, and also includes a discussion of the uses of comparative law in legislative drafting by, for example, the American Law Institute.
Glendon strikes an optimistic note, hoping that obstacles to uses of comparative law "can be surmounted, and that the future of international legal studies will be marked by fruitful collaboration and interaction among comparatists, public international lawyers, international business law specialists, and all who labor on behalf of human rights."
However, contributor Kenneth Anderson writes in his essay, Through Our Glass Darkly, that the trend toward citation of foreign law in U.S. constitutional adjudication "seemed to be gathering steam in US courts between the early-1990s and mid-2000s, but by the late-2000s, it appeared to be stalled as a practice, notwithstanding the intense scholarly interest throughout this period."
In the abstract of his article, Anderson writes "[p]ractical politics within the US have a lot to do with this, of course. But other reasons, rooted in global politics, are perhaps now starting to be reflected in the US Supreme Court's jurisprudence regarding a body of otherwise doctrinally quite distinct legal topics -- the Alien Tort Statute, jurisdiction by US courts over acts and actors taking place outside US territory, among others, as well as the de facto trend away from foreign citation in constitutional cases. It has been widely noticed that the US Supreme Court has taken steps in these areas mostly to pull back, constrain, and condition the extraterritorial reach of US courts, at least in the absence of clear legislative direction. The occasional use foreign law by US courts in constitutional adjudication represented the flip side of the reach to universalism that the Court now appears be reining in."
While you're at the Duquesne Law Review site, check out Professor Cheryl Hanna's article on Violence Against Women and human rights in the current Summer issue. Reviewing the legacy of U.S. v. Morrison and Castle Rock v. Gonzales, Professor Hanna then looks to the InterAmerican Commission's critique of U.S. law. As if acting on the hopes for the future articulated in Glendon's essay -- and breaking free of a narrow focus on U.S. Supreme Court jurisprudence -- Professor Hanna writes that "now when people ask what kind of work I do, what does my scholarship involve, I’ve stopped saying I do women’s rights or violence against women, and I just say, “I’m a human rights worker. I work in human rights in the United States.”