Wednesday, August 9, 2017
John Pollock of the National Coalition for a Civil Right to Counsel recently informed members that results of a national survey conducted by Lake Research Partners and ASO Communications on access to the civil justice system were available. The research results were reported by Voices for Civil Justice, and included a finding that most responders believe that access to the civil justice system is a right, not a privilege. This finding reflects a significant advance for human rights perception within the US.
Highlights of the findings are:
The full report, Building a Civil Justice System that Delivers Justice for All, may be read here. You may listen to the primary researchers, Celinda Lake and Anat Shenker-Osorio announcing the results here.
Wednesday, July 19, 2017
The animal welfare and animal rights movement in the US has accelerated during the past two decades. But the US is not close to expanding legal rights to animals as has been done elsewhere.
In 2008, the Spanish parliament extended rights to chimpanzees, gorillas, orangutans and bonobos. This animal measure was not the first for members of the European Union. In 2002, Germany extended rights to animals through its constitution. In 1999, New Zealand passed measures granting protective rights for apes. While some argue that legal rights should not be limited to human-like species, there is no question that these measures are light years ahead of any US initiatives.
Most of the US protections of animals comes from a perspective of correcting cruel human behaviors toward them. Statutes reflect the intention to restrain human actions toward animals, but they do not reflect the perspective that, like humans, animals have inalienable rights. Struggling to preserve the rights that we have, it is unlikely that rights for humans will expand during the next few years. Any movement to recognize, on a formal basis, inherent rights of animals is not likely to be successful in the near future.
In a 2014 essay, William Shultz, former director of the ACLU, acknowledged that he was wrong when he earlier argued that "no rational person would believe that animals could claim the same kinds of rights as humans." He called upon us to examine which creatures should have a claim to rights.
Given the current lack of understanding of human rights on the federal level, animal rights advocates, like human rights advocates, will continue to be most effective on the international and local levels.
At the recent G-20 meeting, for example, the leaders adopted "High Level Principles on Combatting Corruption Related to Illegal Trade in Wildlife and Wildlife Products". While again the principals seek to protect animals from human cruelties, continued recognition of their need for protection may lead to the dialogue on whether protective action is at the same time acknowledging innate legal rights of animals.
Wednesday, July 12, 2017
We note two significant local human rights developments in recent weeks, NEITHER of them from the coasts:
First, on July 5, Dallas County became the first county in Texas, and only the second county in the United States, to declare itself a Human Rights County. According to Dallas County Judge Clay Jenkins, sponsor of the measure, “Human Rights abuses occur in our community, our country and our world every day. We must lead at the local level. We can’t do everything but we can all do something.” Dr. Rick Halperin, director of SMU's human rights program, added “The action taken by the county commissioners will mark a historic turning point in this County’s recognition of Human Dignity and Human Rights for all those who live, work, and visit here. This really puts us on the road to being the global jurisdiction we purport to be.” The resolution came one year after a historic Human Rights Dallas meeting, where local leaders met at SMU to discuss how human rights approaches might improve the welfare of Dallas residents, and how Dallas might take national leadership in expanding human rights,
Second, in May 2017, Athens, Ohio hosted its first ever "Ohio Human Rights Tribunal," addressing the human rights issues raised by fracking. Four judges heard over six hours of testimony from the community. Another tribunal hearing is expected in Ohio later in July. These hearings are held under the auspices of the Permanent Peoples' Tribunal on Fracking, which is gathering testimony to submit to the United Nations.
Tuesday, July 11, 2017
Any exploration of changing human rights advocacy starts with exploring the intentions of the advocate.
Most of my clients have experienced gender violence. Most typically my clients have additional barriers due to color, immigration status, disability and poverty. Their lives are burdened in ways that I can only imagine.
I, on the other hand, live very differently. Being a law school professor is a privileged life. I have the additional freedoms that whiteness brings. While empathy is important, effective advocacy for those unlike ourselves requires more.
I must be careful not to bring any arrogance to my advocacy; particularly where clients may not challenge me for fear of alienating the person who can navigate them through a complex and often hostile system.
So how has my advocacy changed? I am more mindful than ever to reflect on my own motivations. I am more mindful of the consequences of my actions, including my advice to clients. I must consider the newly changed circumstances of my clients' lives. My clients have become even more vulnerable. Immigrants are presumed to be undocumented and even those who are not experience harassment and violence. Risk of deportation has multiplied since January. Gender harassment has increased, as it has for all less powerful social groups. But what is causing much increase in my clients' underlying fear is that harassment and abuse are gaining acceptance as a cultural norm.
Fear in some form has been a near constant in my clients' lives. But the fear was more targeted: fear of reprisal from an estranged intimate partner or fear of being deported should they engage the legal system. While specific fears remain, a more generalized fear has sprouted from the uncertainty that the cultural shift has brought. Increased street harassment is a good example of one source of heightened generalized fear. So I must be mindful not to judge my clients' decisions made in light of these concerns and I must listen even more carefully to their words. Advising clients of what is or is not a reasonable fear has become more difficult. All of our experiences are shifting in the face of this unleashed hostility and incivility.
Mindfulness has never been more important in human rights advocacy.
Monday, July 10, 2017
Editor's Note: This is the second post in our Scholarly Voices symposium on the current state of human rights advocacy.
Sital Kalantry writes 'On Tyrany Lessons from the Twentieth Century"
Many people have read or heard about history scholar Timothy Snyder’s popular book, On Tyranny: Twenty Lessons from the Twentieth Century. Drawing largely from the history of the Nazi regime’s rise to power and brutal genocide campaign, he created a list of twenty concrete actions that can be taken by people living under regimes bordering on authoritarianism. Among other things, he invites readers to seek out the truth (both online and offline), be aware of dangerous language, defend institutions, and not obey the government in advance.
These are all pertinent lessons for us today. Most of his lessons are directed towards people in the “majority” group who would oppose an authoritarian government. For example, his Lesson #12 is that people should “Make eye contact and small talk.” Here Professor Snyder’s point is that during Nazi Germany and when fascism prevailed in Italy, oppressed groups reacted to how their neighbors treated them. Therefore, he advises his readers to “affirm everyone” because you cannot be sure “who feels threatened in the United States.”
Although Professor Snyder offers advice for the group of people who will not be the targets of the authoritarian regime, I would like to offer advice to those who will be. For immigrants, of whom I am one, I think we should “interact and educate.” Many Americans today fear that immigrants are taking away their jobs and committing crimes. Through broad executive action, many immigrants are being deported and foreigners denied entry into the United States. Most people who support the executive’s policies may never have met with or talked to an immigrant. However, many anti-immigration proponents resist deportation when their own community members are involved. Stories abound like the one involving a Trump-voting community that rallied around an undocumented restaurant owner who was threatened with deportation. It is easy to demonize people you do not know, but harder to demonize people you do know. While I would have resisted this burden at another point in my life, I believe today that we have to use every opportunity we can to positively interact and educate others in our communities to help breakdown stereotypes. I live in a diverse and liberal college community surrounded by rural New York. While I do not always follow this principle in my daily life, it is a goal to which I aspire. I think it will help to bridge the voids that divide our country.
Sunday, July 9, 2017
Editors' Note: This week we run a brief symposium on changes in human rights advocacy in the new era. We encourage contributions from additional law professors on this topic. We begin with this contribution from Lauren Bartlett.
Threats to human rights have reached a crisis point in the United States, especially for our most vulnerable communities. Recently, more than thirty “Anti-Sharia” or “Anti-Muslim” marches were held across the U.S., the Trump Administration threatened to withdraw from the U.N. Human Rights Council, and ICE raids continue at an alarming rate.
It is difficult to be strategic while attempting to function in crisis mode. There is too much to digest and react to on a daily basis, both on a professional and personal level. Moreover, many U.S. human rights advocates are central players in advocacy organizations and larger movements concentrating on specific legal issues and agendas. Repeatedly having to face daily emergencies creates immediate demands on advocates’ time and pulls resources away from a human rights focus.
Regardless of, and because of, these pressures, U.S. human rights advocates need to take the time to strategize about where to focus their limited time and resources in the coming months and the year ahead. Some advocates have been theorizing and writing on this topic. Yet there does not seem to be any consensus so far.
Some questions to consider in developing human rights advocacy priorities could be:
- What does effective advocacy for human rights in the U.S. look like in 2017—18?
- Which human rights strategies and methodologies will be most effective in the current environment?
- What should be the priorities in terms of collaboration among lawyers and other advocates?
- Which best practices and lessons learned are most useful in the current environment? Will the lessons learned from 2008-2016 be applicable, or would it be better to go further back and examine lessons learned during the reviews in 2005-2007 with the Bush Administration?
Below are my preliminary thoughts in response to these questions.
Priority should be given to lifting up the voices of those directly affected by human rights violations and continuing to build the human rights movement through education and advocacy campaigns. In addition, it is likely that the most effective human rights advocacy will occur at the local and state level.
The Trump Administration and the U.S. Congress are likely to ignore all recommendations from human rights bodies, and it is not likely that any Federal agency will embrace human rights, as was seen previously. On the other hand, civil society movements may flourish (with community education, leadership, and resources) around Federal rejection of the issues or recommendations. In addition to civil society, some city and state governments are showing a willingness to embrace international obligations and resist the Federal Government’s rejection of international obligations, which is a testament to the terrific groundwork laid by human rights advocates and others in recent years.
In terms of my immediate plans for my own human rights advocacy, physically situated as I am at a small law school in a small town in the heart of the conservative Midwest, I plan to focus on human rights education of law students, colleagues and courts, using the language and principles of human rights when citation to human rights instruments and laws is too off-putting. I will also focus on giving voice to those directly affected, through court cases and other advocacy, as well as building solidarity with individual clients and local community groups.
What are your human rights advocacy priorities for the coming months and why? It would be great to hear from a chorus of others.
Wednesday, June 28, 2017
In February 2016, this blog highlighted an exciting development for Vermont dairy workers: Ben & Jerry’s made a formal agreement to cooperate with dairy workers, led by Migrant Justice, to join a worker driven social responsibility (WSR) program, known as Milk with Dignity. That commitment was made in 2015 – over two years ago. Yet, Milk in Dignity is not yet in place. Migrant Justice and Ben & Jerry’s continue to negotiate the terms, but the process has been slow, and progress is lacking.
The stakes continue to be high for farmworkers in Vermont. Farm hours are long, and sometimes workers get no days off. Many workers are not even afforded eight consecutive hours off at a time. Pay is abysmal. Housing is substandard and injuries are common. Indeed, Migrant Justice was founded in response to the death of dairy worker, José Obeth Santiz Cruz. In 2009, Cruz died in a workplace accident when his clothes got stuck in a machine and strangled him. In response, dairy workers decided to take collective action to prevent similar travesties from occurring in the future, and improve overall farm conditions. One Migrant Justice member recently offered a compelling and personal snapshot of what dairy work can be like, and his motivation to advocate for change:
“My dad taught me how to milk cows. My first time in the barn, I thought I would pass out from the stench. It was scary working among the cows, getting knocked around by huge animals. Because there were no jobs available at the farm where my dad worked, I had to find work at a farm an hour away. At just 17, I was living and working by myself in a small farm on a back road in an unknown country, facing my first Vermont winter. Waking up at 3 a.m. to start my first shift, I’ve never felt so isolated. The farmer had me working 12 to 15 hours a day, with no day off. At the end of my first week, my body aching from over 80 hours of hard labor, I received my first paycheck and couldn’t believe what I saw: $350, or just over $4 per hour. At that time, I had no idea what the minimum wage was, but I knew that it wasn’t fair pay for the work I had done.”
Migrant Justice sees the Milk with Dignity Program as the key means to improve conditions so that dairy workers can live and work with dignity. Key components of the Program, which are calibrated to foster transformative change, are spelled out in a legally binding agreement, and include:
- workers’ central role in designing the program to best protects workers’ human rights, including through a detailed code of conduct for farms;
- continuous and independent monitoring to encourage compliance and ensure that breaches of the code are effectively investigated and addressed, coupled with farmworker education about their rights;
- accountability mechanisms to remedy violations of the code of conduct, with concrete market consequences where farms fail to make improvements;
- economic incentives for farmer participation: Ben & Jerry’s pays a premium to farms in good standing with the Code of Conduct, and this benefits the farm owners and farmworkers.
Over a dozen human rights organizations, including the ACLU, the Center for Constitutional Rights, the Coalition for Immokalee Workers, the, FIDH, and Human Rights Watch, Robert F. Kennedy Human Rights have endorsed the key elements of the Milk With Dignity Program, in a recent letter calling on Ben & Jerry’s to join the Milk with Dignity Program and describing how the Milk with Dignity Program implements human rights principles.
Last weekend, on the two year anniversary of Ben & Jerry’s initial agreement to cooperate, Migrant Justice and allies from across the country held a day of action to demand that Ben & Jerry’s make good on its commitment and put the Milk with Dignity Program into practice. More than 100 supporters made a 13 mile trek through Vermont, ending at Ben & Jerry’s Factory, where they delivered the human rights letter.
The March was a success. It drew broad support, received some excellent media coverage, and may be an important catalyst for progress implementing the Milk with Dignity Program. Unfortunately, celebration was cut short by the news that two of the marchers were arrested by Immigration and Customs Enforcement (ICE) on their way back to the farm where they work. Sadly, this scenario is becoming somewhat routine for Migrant Justice. Just last month two other prominent Migrant Justice members were arrested by ICE and served 10 days in jail before being released.
Routine border patrol stops, and the arrests of Vermont dairy workers put in sharp relief the precarious position of many farmworkers, and the challenges to worker advocacy. Farmworkers lack basic legal protections, and were intentionally excluded from the rights to organize and collectively bargain at the federal and state levels, meaning they have few avenues to vindicate their rights. This has always impeded efforts to improve conditions on farms. In recent months, the obstacles that farmworkers face have increased, with a sharp rise in federal targeting of communities perceived to be immigrant, Latino, and non-English speaking, of which ICE arrests are just one example.
As a colleague and I described in an op-ed : in the current political climate, it is even more important that corporations leverage their power and resources to fulfill their human rights responsibilities. I hope that Ben & Jerry’s is ready to step up - it would create a great model and an incentive for further positive corporate action.
Friday, June 16, 2017
The 2017 International Human Rights Clinicial Conference was hosted by Cornell Law School in Ithaca, N.Y. In April 28 and April 29th of this year. A working group consisting of Sital Kalantry, Elizabeth Brundige, Sandra Babcock, Sarah Knuckey, Jayne Huckerby, and Sarah Paoletti drafted a statement in response to the events we are witnessing in the United States
today. Participants of the conference discussed and revised the statements in small groups. Based on the feedback of the conference participants, the working group revised and finalized the statement. While the statement reflects the position of human rights clinicians and people who operate centers, we have opened it up for signature to anyone who supports the content of the statement.
The statement begins:
"We are law school educators who teach in clinics and operate centers and institutes that work with and on behalf of individuals, organizations, and communities to promote human rights. We believe in the inherent dignity and equality of all human beings. We are deeply concerned that the recent rhetoric and actions of many leaders in the United States government are harming people and damaging decades of effort and progress in promoting respect for human rights."
The statement goes on to list commitments by the signatories to preserve and promote human rights globally as well as within the US.
For example the educators pledge to "promoting the values that inspired the Universal Declaration of Human Rights and the rights and obligations set forth in international human rights treaties."
To read the full statement or to sign on, click here.
Monday, June 5, 2017
Much discussion among judges and lawyers these days is devoted to access to justice. The growing divide in the US between those with resources and those without is particularly apparent in access to legal services. Hourly billing at rates of $400.00 and up are unaffordable even for those previously considered middle class. In many cases, Judges report litigants self-representing in up to 80% of cases that involve family law and housing. More and more of those in need of legal services to protect basic human needs are unable to find legal help. Particularly hard pressed are those who do not qualify for help from Legal Services organizations and those who do not have funds for significant retainers.
Addressing the need for affordable legal services is part of the education of human rights lawyers. When viewed through a human rights lens, adjusting ones practice to provide low cost, yet competent representation, permits clients to secure the principles voiced in the Universal Declaration of Human Rights.
The ability to make a living while protecting clients' human rights must be incorporated into legal education. Technology permits lawyers to reduce overhead in many ways, including the ability to work from home and renting a conference room as needed. Technology also broadens the geographical range one can build a client base, now that video conferencing is routine. Technology has made the delivery of services to those of limited means a realistic option. One way to create Human Rights lawyers is to show students and new graduates how to have a practice that will address crucial human rights and sustain them financially. Bill Henderson and others have written extensively on changing the delivery of legal services. His arguments and advice also support human rights lawyering.
Thursday, May 25, 2017
Editors' Note: Guest blogger Prof. Ariel Dulitzsy and graduate fellow Scott Squires describe their successful efforts to request that CERD investigate the impact of the proposed border wall on indigenous people.
In a letter issued May 17, the UN Committee on the Elimination of Racial Discrimination asked that the U.S. Government provide information on the Trump administration’s expansion of the border wall and its effects on indigenous peoples living along the U.S.-Mexico border.
Under its early warning and urgent action procedure, CERD requested that the U.S. provide the information to address concerns that the expansion of the wall—as outlined in the Trump Administration’s executive order issued January 25th —will discriminate against indigenous groups living in the border region.
Specifically, the letter asked that the U.S. Government provide information regarding the impact of the executive order on indigenous peoples’ rights to access their land and resources, ways in which the government plans to limit the adverse effects of the wall on those people’s rights, and measures taken by the U.S. Government to ensure the free prior and informed consent of those peoples in decisions affecting them.
CERD submitted the letter after the University of Texas at Austin School of Law’s Human Rights Clinic requested last February that the Committee re-consider the situation of indigenous and poor Latino communities along the US-Mexico border in light of the executive order. The Clinic, Dr. Margo Tamez (Lipan Apache Band of Texas) and the Lipan Apache Women Defense, an Indigenous Peoples’ Organization initially submitted a complaint to CERD in 2013 alleging the discriminatory impacts that wall would have on the Kikapoo, Ysleta del Sur Pueblo and Lipan Apache communities living along Texas’ border with Mexico. CERD, at that time, was concerned that the border wall has been constructed without the free, prior and informed consent of the affected communities.
The wall’s discriminatory effects on those groups have not been remediated, according to the Committee. And because Trump’s executive order intends to expand the wall along the entirety of the U.S.-Mexico border, CERD is now concerned that the construction of the wall will more broadly “hinder the full enjoyment” of the rights of indigenous peoples living in the border region.
The U.S. Government has until July 17, 2017 to respond to the request.
Monday, May 15, 2017
by JoAnn Kamuf Ward, Columbia Law School Human Rights Institute
In the wake of the U.S. failure to appear at the Inter-American hearings on the U.S. in March, human rights advocates, scholars, and a number of journalists tried to read the tea leaves to determine the significance of this move for U.S. human rights engagement globally and regionally. Of course, the implications of the United States’ direct engagement with human rights institutions (or lack thereof), can’t be viewed in isolation from whether and how U.S. dollars flow towards these institutions, or divorced from how U.S. foreign policy prerogatives impact human rights globally. But U.S. engagement and public positions offer important starting points for advocacy to strengthen human rights protections.
As Louis Henkin aptly noted in 1979, the United States has historically been “more like a flying buttress than a pillar” in the cathedral of human rights. Yet, these days, the U.S. appears to be chipping away at the foundation.
Of course, even when past Administrations articulated human rights as a foundation of U.S. policy, the reality at home and abroad has often significantly deviated from the rhetoric employed. U.S. human rights advocates have been among the chorus of voices consistently urging the United States to prioritize human rights in global engagement and domestic policymaking. Under the Obama Administration, progress was made in strengthening engagement with the United Nations and the Inter-American Commission, premised on the belief that representative democracies, along with “respect for human rights and civil society, and independent judiciaries and the rule of law,” are important foundations for human progress, and principles to which the United States was committed, at home and abroad.
While they have certainly been imperfect and under-realized, past presidential administrations’ commitments to human rights have provided an important grounding for advocacy. These commitments signaled that human rights were priorities to be advanced consistently and progressively over time. Such commitments also provided a starting point to hold the U.S. accountable to the ideals it espoused, and indicated dedication to the institutions that monitor and implement human rights. They offered a common language and opened up spaces for civil society dialogue.
But today, the common ground of human rights has all but disappeared. Even a veneer that human rights matter seems to have fallen away. This should not be surprising given the egregious policies this Administration has rolled out at home. Communities of color have been targeted with particular vehemence, but the safeguards in place to preserve the environment, meet fundamental needs like health and housing, and protect the basic civil rights of all of us are under assault. The Administration’s frontal attacks on human rights domestically, as well as beyond our borders are being tracked here in real time.
In this moment, we must continue to fight against efforts to sideline and ignore human rights. We must ensure that this Administration, the State Department, the White House, federal agencies, and Congress understand their human rights obligations, and we must demand that human rights are put into practice.
In one step in this direction, 50 U.S. human and civil rights organizations and individuals sent a letter to Secretary Tillerson last week, calling on the United States to prioritize U.S. leadership on human rights in its engagement with Inter-American Human Rights System and the OAS. Responding to the U.S. failure to appear at the March hearings, the letter emphasizes that leadership requires constructive U.S. participation in Inter-American proceedings, with the ultimate aim of bringing U.S. policies in line with international and regional human rights commitments. It highlights, as well, the need for ongoing U.S. resources and support for the Inter-American Commission and the OAS.
The upcoming June OAS General Assembly and the forthcoming IACHR periods of sessions are opportunities for the U.S. to demonstrate, and commit to, human rights. The world will be watching.
Tuesday, April 11, 2017
While much discussion centers on the need for trauma based interviewing and advocacy, insufficient discussion addresses the trauma experienced by advocates for those whose human rights are violated.
A new blog series brings awareness to the mental health risks that human rights advocates face. "Resilience as resistance: Mental Health and well-being in human rights work" introduces the topic:
"The mental health and well-being of advocates has often been neglected by human rights organizations, funders, and advocates themselves. Recently, however, activists and mental health professionals have begun giving the issue more attention, exploring what risks advocates face and how they might be mitigated. Human rights organizations increasingly want to bolster the resilience and creativity of their staff and constituents. Defenders increasingly see their own well-being as an imperative for sustainable movements."
An early post was written by Meg Satterthwaite, of NYU's Human Rights Institute. Evidence of trauma: The impact of human rights work on advocates is an excellent discussion of the need for addressing front line trauma based upon evidence based research. In Sattherthwaite's report are findings from a study showing a high rate of PTSD among those who engage the work. These posts are recommended for all engaged in human rights advocacy. Often, we are deep into trauma before we recognize its impact on ourselves and those with whom we work. Recognizing early warning signs may be the best education we can provide to our students and others beginning to engage with human rights advocacy.
Here is a wonderful list of resources for staying healthy, brought to you by Windcall Institute.
Wednesday, February 8, 2017
There are signs that President Trump is right. He will make America great again.
For the first time in decades, Americans have revived the art of demonstration and protest. The Women's march brought out an estimated 5 million demonstrators worldwide. The demonstrations have empowered others to protest.
Since then, there have been daily protests triggered by the President's immigration executive orders. Other actions have been successful. Women messaged Nordstrom that they would no longer shop at the chain because the store sold Ivanka Trump products. The store announced that it will no longer sell Trump goods due to declining sales. (In further evidence that everything is personal with this president, he tweeted the unfairness of Nordstrom's decision.)
Protesters stopped using Uber because its CEO, Travis Kalanick, agreed to be part of Trump's economic advisory council. Employees challenged Kalanick, asking what it would take for him to leave the advisory council. Apparently, it took over 200,000 customers deleting their Uber accounts while New York taxi drivers advertised Uber's connections to Trump. Uber drivers, particularly immigrant drivers, made known their unhappiness while Uber's competitor, Lyft, pledged to donate $1,000,000 to the ACLU.
Many Americans are waking up to preserve democracy. Despite the accepted belief that politicians lie, many are unwilling to accept "alternative facts" and hate mongering.
Judges entered temporary restraining orders, barring implementation of Trump's immigration executive orders, the latest one entering a national ban on the travel ban.
So for now, many Americans have risen to the crisis. That has made America great again.
Here is the challenge. Americans have responded to crisis - to the outrageous and the dramatic. Will they sustain activism when the dramatic subsides and the constitutional threats are more subtle?
Tuesday, January 31, 2017
Risa Kaufman & JoAnn Kamuf Ward, Columbia Law School Human Rights Institute
State and local officials can be a bulwark against the Trump administration’s efforts to undermine human rights. Their potential was on full display during Trump’s first weeks in office.
With immigrants as his prime target, President Trump signed a sweeping executive order temporarily suspending refugee admissions, indefinitely banning refugee admissions from Syria, and imposing severe restrictions for 90-days on immigration from seven Muslim-majority countries. Earlier, he issued an order to begin construction on a border wall between the U.S. and Mexico and ramp up immigration enforcement within the United States. For those “sanctuary jurisdictions” that resist this crack down on their residents by limiting cooperation with federal authorities on immigration enforcement, Trump ordered withholding of federal funding, thus carrying out a promise made on the campaign trail.
In the midst of these assaults on human rights, we’ve seen massive nation-wide organizing and public protests, remarkable collaboration to develop swift legal challenges, and courageous resistance and dissent from within the federal government. State and local officials from many jurisdictions are stepping in and stepping up, as well, vowing to protect local communities.
State and local efforts to protect human rights, particularly in the context of immigration, are not new. In recent years, sanctuary jurisdictions have emerged as a response to the over-enforcement of draconian federal immigration restrictions which separate families and disrupt lives and livelihoods. New York, Seattle, Boston, Los Angeles, Philadelphia, Chicago, and Washington, D.C. are among the 39 cities that have declared that they will not share information with federal authorities on immigration status or turn their citizens over to federal immigration authorities for minor infractions. Four states (California, Connecticut, Vermont, and Rhode Island) and hundreds of counties make up the ranks, as well. Jurisdictions take wide ranging and differing approaches to their sanctuary policies. What they share, however, is a principled commitment to keeping immigrant communities safe and to ensuring equal treatment of individuals.
In this new era, the stakes are increasingly high. Indeed, in the wake of the executive order threatening loss of funding, some sanctuary jurisdictions are rethinking their approach. Miami-Dade’s mayor ordered county jails to comply with federal immigration detention requests, citing the over 300 million dollars of federal funding at stake.
But others are standing firm. New York Mayor Bill De Blasio vowed to prioritize city policies that foster positive ties between law enforcement and immigrant communities. And he suggested that the City would sue the federal government if it withholds funding pursuant to the new executive order. Boston Mayor Marty Walsh said that Boston would not be intimidated by threatened federal cuts. New York State Attorney General Eric Schneiderman issued a guidance for local authorities on how to limit participation in immigration enforcement, and suggested model sanctuary provisions. California’s Governor Jerry Brown, too, has spoken out strongly about his state’s commitment to “defend everybody – every man, woman and child – who has come here for a better life and has contributed to the well-being of our state."
Other examples of state and local resistance to the Trump agenda have emerged. In response to the January 27th executive order halting refugee admissions and imposing a 90-day ban on entry of immigrants from seven Muslim-majority countries, sixteen state Attorney’s General issued a joint statement condemning the order as "unconstitutional, un-American and unlawful," and vowing to challenge the order in court. As of this writing, the Governor and Attorney General of Washington announced plans to file broad-based litigation seeking to invalidate the order, and the Attorney General of Massachusetts announced the intention to join in litigation brought by the ACLU.
The emergence of vocal state and local leaders, speaking out for foundational human rights principles of equality and non-discrimination, regardless of citizenship status, illustrates the critical role that state and local governments play in safeguarding human rights, particularly where the federal government fails to do so. Notably, a number of sanctuary jurisdictions have also made express commitments to promote and protect human rights. Boston and Seattle are among the eleven self-proclaimed “Human Rights Cities” in the United States – a number that continues to grow. Los Angeles and San Francisco have enacted ordinances based explicitly on international human rights treaties. Chicago has likewise committed to address domestic violence and children’s rights as human rights issues. Add to these examples innovative efforts by mayors, legislatures, and state and local agencies across the United States to incorporate human rights into local law and policy.
As these actions by mayors, governors, and Attorneys Generals illustrate, human rights do, indeed, begin in small places, close to home. And state and local officials will have an increasingly vital role to play in ensuring that the United States protects and respects human rights in the age of Trump.
Monday, December 19, 2016
Editor's note: Prof. Francisco Rivera guest blogs to give us a first-hand account of bringing the Human Right City resolution to Mountain View, CA.
As Martha Davis posted, the City Council of Mountain View, CA passed a resolution last week adopting the UN Universal Declaration of Human Rights as guiding principles and designating Mountain View as a Human Rights City. Students in the International Human Rights Clinic at Santa Clara Law provided technical assistance to the city throughout the process. Ultimately, as Martha mentioned, the resolution passed, but not unanimously. In the clinic’s press release, we highlighted positive comments from the mayor and other councilmembers who voted in favor of the resolution. What we did not mention were the comments from the two councilmembers who voted against it. I think it is important for us to become familiar with those arguments so that we can be better prepared to address them.
A video recording of the City Council’s session can be accessed here, with the relevant discussion taking place from the 4hr 31min mark through the 5hr 28min mark.
Consider the following exchange between Councilmember John Inks and Councilmember Ken Rosenberg (the person primarily responsible for this resolution):
- Councilmember Inks: “I guess I am biased by my American history and the principles that we have in this country, which are based on liberty and freedom, including economic freedom. […] This resolution […] is a springboard for a UN-style sort of governance and economic policy. […] Basically it is a manifesto for socialism, as opposed to the American tradition, which is based on constitutional principles, rule of law, economic liberty, and personal freedom, and not what is in the UN document (the UDHR).”
- Councilmember Rosenberg: “Are you saying this (the UDHR and the resolution) subverts our laws?”
- Councilmember Inks: “It is contrary to American tradition.”
- Councilmember Rosenberg: “American tradition supports human rights.”
- Councilmember Inks: “Ultimately, the UN principles get down to designing the desired political system, which is a socialist system, so I won’t be supporting the resolution.”
The frustration on Councilmember Rosenberg’s face was unmistakable.
Councilmember (and former mayor) John McAlister also voted against the resolution. He said, “This UN deal […] for me, it’s too much. There could be some unknowns in there, and I have a feeling this could come bite us in the rear end sometime. […] I will not be supporting the idea of becoming a Human Rights City, but I would be willing to recommend that we consider implementing some framework –not necessarily a human rights framework – but a policy that incorporates human dignity and respect for all.”
For me, these exchanges highlight how the human rights message is often misunderstood, particularly by those in government. We must do better to address these misconceptions. In response to similar concerns raised by the City Council and by the Human Relations Commission, our students prepared a FAQs document on Human Rights Cities. Maybe we should collectively engage in similar efforts to frame responses to common criticisms of the applicability and relevance of the human rights framework in the US.
Sunday, August 28, 2016
Go to Laurence Tribe’s Twitter site and you will read the famous constitutional professor’s byline: "Descartes last words: I think not."
Apparently Prof. Tribe was not thinking when he made this recent twitter post: I have notes of when Trump phoned me for legal advice in 1996. I'm now figuring out whether our talk was privileged.
Really? @trump_democrat does not disclose if the writer is a lawyer, however the author’s response seems to summarize the concern quite nicely. “You just said for legal advice. Sounds privileged to me.” Well, almost.
Before I discuss the reasons why Prof. Tribe might better have restrained himself from making this particular post, let me address a fundamental ethics misunderstanding. The communication between Prof. Tribe and Mr. Trump was not privileged. The communication was confidential. Privilege applies during a hearing before a tribunal or other process to which a lawyer may be subpoenaed. Otherwise the communication is confidential. Now that I have the annoyance of a professor teaching Professional Responsibility out of the way, let’s get to the real issue.
Unless in Prof. Tribe’s notes there is a release from Mr. Trump acknowledging that the telephone consult was not confidential, or Mr. Trump gave permission for the current disclosure, yes- the information is confidential. Is the fact that Mr. Trump contacted Prof. Tribe in the first instance confidential? In most cases yes, and definitely in this case. I am curious why Mr. Trump would need the advice of a constitutional scholar. If the call was made to a construction law expert, the communication would not create any ripples. Are you at least a bit inquisitive? Are some of you speculating? That is why this information should be confidential. And under any circumstances, the notes are confidential. ABA Model Rules of Professional Conduct Rule 1. 18 (b): Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information (the stated exceptions do not apply in this case). (Mass. Rule 1.6 addresses confidentiality).
Making matters worse from an integrity prospective, Prof. Tribe later tweeted: I did wonder whether disclosing my notes of that call would be improper, thought that raising that question in a tweet might help me think the issue through, decided that it wouldn’t be improper in any technical sense but concluded that I wouldn’t disclose the notes in any event. People who doubt the propriety of my even having mentioned that Mr. Trump sought my counsel assume that the very fact of his call was some kind of secret. I don’t know for sure, but I have no reason to doubt that he let others know that he was calling me.j
In other words, I don’t think I violated ethics, because I am guessing that Donald Trump told others that he called me, making the fact of the call not confidential. I am guessing that Prof. Tribe just jumped further into the proverbial ethics fire.
It is unfortunate that Prof. Tribe's response mimics Mr. Trump's favored approach – denial and supposition. So much better would have been a response that he may have acted too quickly and would have done well to walk down the hall and consult a legal ethics professor prior to writing the post.
Earlier, Attorney Thomas Wells of New Jersey, wrote a Huffington Post piece that raised similar concerns. The piece, entitled Donald Trump Hired Me As An Attorney. Please Don’t Support Him For President. Attorney Wells seems to have less concern than Prof. Tribe in revealing confidential information. Attorney Wells proclaims such sweeping generalities as “The man lies all the time”. The fact that many have already formed that conclusion does not excuse the statement. Has Attorney Wells never heard of loyalty to a client? The fact that Attorney Wells discloses no information that would shock the public at this point does not excuse the disclosures.
Fellas, this is what representing unpopular clients is all about.
Why am I reporting this? Abandoning the fundamental rules governing lawyer conduct is dangerous. In an age when government attempts to limit attorney client privilege and restrict fundamental lawyering principles, what we do not need is lawyers failing to honor long standing ethics prohibitions because their egos compel them to disclose confidences in a public forum. Lawyers are most often at the forefront of effective Human Rights advocacy. Human Rights principles look to eliminate pretext and substitute dignity. We do not need lawyers discrediting the profession with the pretext of protecting the public.
Tuesday, August 2, 2016
I planned for today's post to be exclusively about the documentary Hooligan Sparrow, which I was privileged to see last evening as part of the Woods Hole (MA) Film Festival. But in an amazing sequence of events, dramatic changes have happened regarding Wang Yu, the human rights lawyer featured in the film.
This week the American Bar Association holds it annual meeting in San Francisco. In July, the ABA announced that it would honor Wang Yu with its first International Human Rights Award. The ABA announced that because Wang Yu was held in detention, another Chinese human rights activist, Liu Wei , would accept the award on her behalf.
Remarkably, today the Chinese government announced Wang Yu's release on bail, which was conditioned upon her renouncement of her profession and on the condition that she not accept any awards for her advocacy efforts from foreign entities. In her recorded statement, Ms. Yu said that she is Chinese and only accepts the Chinese government's leadership. The statement is assumed by human rights activists to be given under pressure.
We will wait to see how long Wang Yu remains free. While on bail, she is not permitted to see friends and family, including her teenage son. Her husband was arrested in the same sweep of legal advocates.
Hooligan Sparrow is a documentary filmed ,sometimes surreptitiously, by a Chinese and American filmmaker. The film follows Ye Haiyan, known by film's title, as she leads protests against the rape of young girls by their school principal and another education official. The demonstrations were successful, but the demonstrators paid a price. The demonstrators, including Sparrow, were detained by police for varying lengths of time, but even when living in society, they were constantly harassed by those police paid to harass the protestors.
The film is powerful and Ms. Yu is featured as the legal narrator of the film.
Nanfu Wang, the NY based filmmaker, deserves her own award for courage. The film documents Ms. Wang's own harassment by the authorities, directly and indirectly, as she documents Sparrow's advocacy. Ms. Wang was brave and creative in recording even in the face of police harassment.
The film will deepen your understanding of why persistent human rights advocacy is critical in the U.S. We observe advocates making small inroads in a culture that has consistently suppressed human rights. In the US, we have statutory civil rights with case law that is slowly evolving to include human rights. What we are reminded by this film is that whenever their is a void in human rights advocacy the government will fill it- and not always in compliance with human rights principles.
Thursday, July 14, 2016
No doubt many of you read Just Mercy: A Story of Justice and Redemption by Bryan Stevenson. Today I completed this powerful book authored by a remarkable man. Mr. Stevenson is the founder of the Equal Justice Initiative located in Montgomery, Alabama. Mr. Stevenson and his colleagues at EJI represent incarcerated men and women who have been mistreated by the justice system in horrific ways. Many of the Initiative's clients live on death row. The stories of the incarcerated men and women were sad, outrageous and inspiring. But the lawyering work is painful and heartbreaking.
I will not be a spoiler and give details, but in one instance Mr. Stevenson describes a personal and professional crisis moment that followed a conversation with one of his death row clients. A reflective man, Mr. Stevenson wondered if he could continue the work. He describes the moment when he realizes that not only are his clients, the legal system and its players broken, but he is as well. How does one continue the work after realizing that "We've submitted to the harsh instinct to crush those among us whose brokenness is most visible." Mr. Stevenson realizes that we are all broken. Maybe we were broken in different ways, but we are all broken.
Not only did these passages bring me to tears, but they made me feel for all of us who engage in human rights work. I admire all of you. While we celebrate our victories and support each other's work, rarely do we stop to discuss the pain that accompanies our work.
Bryan Stevenson ultimately, and rather quickly, found strength in recognizing this shared vulnerability. He recognized that "When you experience mercy, you learn things that are hard to learn otherwise. You begin to recognize the humanity that resides in all of us." He imagines what the world would be like if we all acknowledged our fear, our weaknesses and our brokenness.
Dr. Brian Williams, who treated the shot Dallas police officers has begun that conversation by acknowledging his fear. In one interview Dr. Williams, who is black, said that when he sees a police officer he often thanks them for their work so that his daughter will learn not to be afraid of police. Because, he said, "I am afraid". Former Seattle Police Chief Norm Stamper addressed the way in which police officers are trained to be afraid and to view their community members as enemy.
What is missing are police officers willing to discuss their vulnerabilities that are at the heart of their biases and overreactions to perceived threats.
I think of how vital this acknowledgment is to resolving our race crisis. Both sides are filled with fear, but one side cannot engage that conversation. Until that happens, change will remain out of reach.
Thursday, June 23, 2016
Editors Note: Prof. Irene Scharf is in attendance at the annual meeting of the American Immigration Lawyers Association where over 2,000 immigration lawyers are in attendance. As the per curium decision in US v Texas was announced, Prof. Scharf blogged reaction to the decision including comments from counsel from the three mothers named as intervenors:This morning, the United States Supreme Court, in a deadlocked 4 - 4 vote reflecting Congress's failure to fill the seat created upon Justice Scalia's death, failed to reach majority in the government's challenge to the Fifth Circuit's injunction against implementation of Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). As a result, the Circuit court's injunction against the President's use of executive action stands.While the ruling does not impact the original DACA program launched in 2012, it is a searing loss for immigrant families and their supporters. "It’s bad for American communities, workers and the economy. ... the nation needs a permanent solution to our outdated immigration system, and that must come from Congress. 'The fight will continue" reflected the American Immigration Council. Danny Cendejas, Organizing Director of Detention Watch Network, noted that “[t]he U.S. Supreme Court’s inability to reach a decision today leaves the lives of millions hanging in the balance. As a result, immigrants will continue to be targeted by the unjust detention and deportation machine fueled by unconstitutional raids and police and Immigration and Customs Enforcement (ICE) collaboration. With today’s ruling, people will still be subject to the inhumane detention system – putting their lives in jeopardy. It’s plain and simple; the U.S. government must end its reliance on immigration detention.”In comments this morning before attendees of the American Immigration Lawyers' Association's annual meeting in Las Vegas, Thomas Saenz, President and General Counsel of the Mexican American Legal Defense and Education Fund, who represented the three mother-intervenors, indicated that this litigation, initiated by Texas but followed by governors of 25 additional states, was "wholly political," but it is ongoing and will be judicially resolved. In addition, he noted that the adverse effects on the many residents of these 26 states will surely be rendered politically. Saenz was optimistic in the face of this temporary loss, reminding the immigration lawyers that "even in defeat you win."Stay tuned.
Friday, June 3, 2016
Among this term’s cases that were not deadlocked due to a missing 9th justice, is Foster v. Chatman.
Mr. Foster is a cognitively challenged black man who has been imprisoned nearly thirty years waiting execution following a murder conviction. The issue before the court was whether Mr. Foster's right to trial before a jury of his peers was defeated through the prosecution’s manipulation of the juror selection process. Mr. Foster, who is African American, argued that the prosecutor impermissibly eliminated black jurors thus creating a biased jury pool. The court, in a seven to one opinion, determined that the prosecution demonstrated racial bias in jury selection and remanded the case to the lower court.
The legal impact of the decision will be limited. Mr. Foster’s lawyers gained access to the thirty-year-old prosecutor’s file which showed, among other discriminatory evidence, a “b” written next to the names of the black prospective jurors. Such blatant evidence is rarely available. With progressively more focus on criminal justice practices that limit or deny civil rights protection to people of color, it is likely that written documentation of exclusionary jury practices no longer appear in prosecutor’s notes. The case is unlikely to influence future discrimination cases except in one regard: it is possible that some judges will scrutinize more closely the Batson claims of prosecutors that there were “ legitimate reasons” for eliminating black jurors. But under the current status of case law favoring prosecutors even enhanced scrutiny is not likely to change discriminatory practices.
In addition, two justices noted, there may be procedural barriers beyond the bias issue that prevent Mr. Foster from receiving a new trial.
But will the prosecutor in question benefit from the passage of time thereby avoiding disciplinary action?
ABA Model Rule 3.8 emphasizes the special duty of prosecutors to assure justice, in addition to their duties to be competent lawyers on behalf of the state. Under the rule, prosecutors have a duty to seek and preserve justice as well as to prosecute individuals deemed a threat to the public. Commentary to the rule reads in part: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate." This includes an obligation to ensure that the defendant receives "procedural justice".
Unlike other model rules, as adopted by the various states, there are relatively few disciplinary decisions sanctioning prosecutors for behavior that frustrates or thwarts justice. The apparent lack of discipline for prosecutors (think of the lack of discipline for the now notorious prosecutor in Making of A Murderer) ignites vigorous law classroom debate. Many disciplinary complaints allege conduct as concerning as that found in the documentary. But even when the facts of the complaint are acknowledged, often no or mild discipline follows.
The ethics discussion typically progresses from one concerning individual cases to the larger problem of whether or not the lack of discipline results from a bias to protect the state. What is the fear behind disciplining wayward prosecutors? Are ethics boards concerned about a flood of complaints that might result in a mirroring of the justice systems overcrowded dockets? If so, that fear must be insufficient to prevent disciplinary boards from applying their independent judgment. Adverse collateral consequences to legal systems must not be a factor in determining whether justice has been manipulated by a key state actor.
My prediction is that among the consequences of holding prosecutors to their dual obligations will be the cheering of those many prosecutors who take their larger responsibilities of ensuring justice to heart.