Wednesday, July 12, 2017

Growing Local Commitments to Human Rights

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. 

July 12, 2017 in Advocacy, Martha F. Davis | Permalink | Comments (0)

Monday, June 12, 2017

Sessions v. Morales-Santana: Two Cheers for Equality

On Monday, June 12, the Supreme Court released its opinion in Sessions v. Morales-Santana, an equal protection challenge to sex-based distinctions in citizenship law -- specifically, differential requirements regarding physical presence in the US of the citizen parents seeking to transmit citizenship to an out of wedlock, foreign born child.   The 6-2 opinion by Justice Ginsburg striking down the sex-based distinctions runs through the full litany of the Court's sex discrimination cases, most of which the Justice had a hand in one way or another -- from Reed v. Reed, where she argued as amicus, to U.S. v. Virginia, which she wrote as a justice.  Justices Thomas and Alito dissented, arguing that the Court should not have reached the merits.

Importantly for US human rights activists, the opinion took human rights law seriously.  For example, the government had argued that sex-based distinctions in US citizenship law were needed in order to avoid statelessness for some mothers.  The opinion rejects that rationale, citing at length the campaign of the UN High Commissioner on Refugees to address sex-discrimination in nationality laws as a component of its campaign against statelessness:

     "In 2014, the United Nations High Commissioner for Refugees (UNHCR) undertook a ten-year project to eliminate statelessness by 2024.  Cogni­zant that discrimination against either mothers or fathers in citizenship and nationality laws is a major cause of statelessness, the Commissioner has made a key compo­nent of its project the elimination of gender discrimination in such laws. " (citations omitted)
 
According to the Court, "[i]n this light, we cannot countenance risk of statelessness as a reason to uphold, rather than strike out, differential treatment of unmarried women and men with regard to transmission of citizenship to their children."  In addition, the Court cited the amicus brief filed by Equality Now and Human Rights Watch, et al., which provided comparative analysis of other nations' treatment of these issues.  It's significant that this was an opinion joined by Chief Justice Roberts, who has been more circumspect than the other justices in the majority in his support for comparative analyses.
 
Still, it was hard to celebrate this victory on the equal protection claim when  the remedial portion of the ruling denied any relief to the individual litigant -- and indeed, stripped future mothers of a benefit.  Instead of expanding benefits for men, as the Court noted was the "customary" relief in such cases, the Court chose to constrict future relief by holding mothers to the higher physical presence standard that currently applies to men. Now, rather than requiring one year of physical presence for citizen mothers in this situation, five or ten years, depending on the date of the birth, will be required.  It's an ominous result for future equal protection litigation and Morales-Santana goes home empty-handed, despite his clear victory on the equal protection claims.
 
Editors' Note:  This posting is part of a Scholarly Voices symposium on this case.  Nancy Dowd's analysis of Morales-Santana and fatherhood is here.  For Deborah Brake's insightful analysis of the remedial issue in the case, look here and here.  Rachel Rosenbloom's expert analysis from an immigration perspective is here.
 

 

June 12, 2017 in Immigration, Martha F. Davis | Permalink | Comments (0)

Monday, February 20, 2017

A Timely New Book: Human Rights and Personal Self-Defense

Image1

Hot off the presses is an interesting new book by Dr. Jan Arno Hessebruegge, Human Rights and Personal Self-Defense in International Law (Oxford 2017).  If you're in the Philadelphia area, note that Dr. Hessebruegge will be speaking about his new publication at Temple Law School at 12 noon on Tuesday, Feb. 21.  More information is available here.

According to the publisher's website:

"While an abundance of literature covers the right of states to defend themselves against external aggression, this is the first book dedicated to the right to personal self-defense in international law. Drawing on his extensive experience as a human rights practitioner and scholar, Dr. Hessbruegge sets out in careful detail the strict requirements that human rights impose on defensive force by law enforcement authorities, especially police killings in self-defense. The book also discusses the exceptional application of the right to personal self-defense in military-led operations, notably to contain violent civilians who do not directly participate in hostilities." 

Dr. Hessebruegge's work explores a number of examples of direct relevance to the US, including:  
  • the Michael Brown case as one instance where compliance with human rights standards on the use of self-defense is doubtful (because the officer in question shot to kill, instead of trying to incapacitate);

        - "stand your ground" laws in Florida and other jurisdictions;

        - so-called "Make my day" or castle doctrine laws in Colorado, Texas and other jurisdictions that presume the legality of lethal self-defense in cases of unlawful entry into homes or even business premises or motor vehicles; 

        - questions concerning the burden of proof. In particular, Ohio still places the full burden of proof for self-defense on the defendant, which is irreconcilable with the presumption of innocence; and

            - human rights and the pro-gun lobby.

A human rights practitioner and blogger, Dr. Hessebruegge currently works for the New York Office of the UN High Commissioner for Human Rights.

 

 

February 20, 2017 in Books and articles, Martha F. Davis | Permalink | Comments (1)

Tuesday, December 27, 2016

Educating Mr. Trump

One hundred forty characters is not really enough to do justice to the wide-ranging work of the United Nations.  But that didn't stop President-elect Trump from trying to use his twitter account to do just that, calling the UN "just a club for people to have a good time."  It's unfortunate that the President-elect doesn't have a better understanding of the UN's work and the US role in this international body.

First, it's worth noting that there is great depth of popular support for the UN within the United States.  When the Pew Foundation conducted an in-depth study just this past spring, it found that 64 percent of Americans had a favorable view of the United Nations.  While this number masked a significant partisan divide, with Democrats much more likely than Republicans to support the UN, the president-elect would do well to note that one of the key constituencies in his electoral college victory, Independents, also registered 64 percent support. 

Second, the President-elect may be unaware of the importance of UN, and US, leadership in furthering human rights worldwide.  For all of the internal critiques of the Obama administration's human rights record, the Administration's engagement with UN agencies over eight years has certainly increased global awareness of the positive aspects of US human rights achievements.  Under Obama, the United States has regularly submitted reports to UN bodies concerning its human rights record and goals, a practice that then gives our country additional credibility when we criticize human rights failings elsewhere.  Further, the current Administration has begun using the human rights reporting process to engage our own state and local governments in achieving -- and highlighting -- national human rights goals.  Yes, we may use this platform to tout our own achievements (Obamacare is one of them), but these UN treaty monitoring bodies are far from feel-good social clubs. The international human rights dialogue moderated by these bodies is real and constructive, and the US would lose  both stature and credibility it if scaled back its robust participation.

Finally, the incoming Administration's tweets do nothing to address the growing concern across America -- in states of all hues -- that human rights are of little import to the President-elect.  This year's Human Rights Day on December 9 was accompanied by columns, op eds and protests around the country from concerned citizens.  In 2008, even before he took the oath of office, the incoming President Obama issued a stirring statement on human rights day signalling US commitment to these issues.  The President issued similar statements each year during his two terms, concluding with the Presidential Proclamation commemorating human rights week in 2016.  Sadly, to date we've had only tweets from the incoming administration. 

December 27, 2016 in Martha F. Davis, United Nations | Permalink | Comments (0)

Thursday, December 8, 2016

The Life of Hope Lewis: Activist, Scholar, Teacher

We are saddened to report the passing of Hope Lewis, Professor at Northeastern University School of Law.  Professor Lewis was a passionate voice for human rights at home and abroad, and a leading scholar on economic, social and cultural rights.  Hope's colleague, Professor Margaret Woo, contributes to this account of Professor Lewis' life and her many accomplishments.  

L. Hope Lewis passed away on December 6, 2016 after a long and courageous battle with illness. Beloved daughter, treasured friend to many, champion of the poor and disadvantaged around the globe.

Born on May 14, 1962, Professor Lewis was a graduate of the Bronx High School of Science, Harvard College, and Harvard Law School. She joined the Northeastern University School of Law faculty in 1992. A passionate champion of the poor and disadvantaged, Hope focused her teaching and scholarly work on human rights and economic rights in the global economy. She was a founder of the law school’s Program on Human Rights and the Global Economy and served as the faculty director of the law school’s Global Legal Studies.

An internationally recognized legal scholar and commentator on human rights, she authored numerous articles and co-authored the seminal textbook Human Rights & the Global Marketplace: Economic, Social, and Cultural Dimensions (Brill, 2005). Professor Lewis was a co-drafter and compiler of the "Boston Principles on the Economic, Social, and Cultural Rights of Non-citizens," a project of the law school’s Program on Human Rights and the Global Economy. She was a founding co-chair of the American Society of International Law (ASIL) International Disability Rights Interest Group and served on the ASIL executive council between 2010 and 2013. She served on the board of governors of the Society of American Law Teachers and the executive committee of the Association of American Law Schools Section on Minority Groups.

The Society of American Law Teachers (SALT) honored Professor Lewis in 2015 with the Shanara Gilbert Human Rights Award. She was the 2014 Kate Stoneman Visiting Professor of Law and Democracy at Albany Law School. Professor Lewis was a 2008 Sheila Biddle Fellow (Ford Foundation) of the W.E.B. DuBois Institute for African & African-American Research at Harvard University.

Apart from her scholarship and activism, Professor Lewis was well known for her commitment to her teaching and to her students. In recognition of her extensive work in mentoring students and colleagues, she was awarded the 2001 Haywood Burns/Shanara Gilbert Award at the Northeast Regional People of Color Legal Scholarship Conference and the 2012 American Bar Association’s Mayre Rasmussen Award for Mentorship of Women in International Law. Legally blind, she was also a recipient of the 2011 Thomas J. Carroll Award from the Carroll Center for the Blind and the Massachusetts Commission for the Blind.

 

Professor Lewis will be missed by her family, colleagues, students, and all of those who knew and loved her.

For more information on services and to sign the guestbook, click here

 

December 8, 2016 in Global Human Rights, Martha F. Davis | Permalink | Comments (0)

Thursday, October 27, 2016

The Rise of Human Rights Cities

Martha Davis has edited a book with Barbara Oomen (University of Utrecht) and Michele Griglio (Nottingham Trent University) Global Urban Justice - The Rise of Human Rights Cities.  Released this summer, the book examines the process of becoming a human rights city, imagining human rights cities and exploring the challenges and possibilities among other topics. 

Published by Cambridge University Press the book's website says:

"Cities increasingly base their local policies on human rights.  Human rights cities promise to forge new alliances between urban actors and international organizations, to enable the 'translation' of the abstract language of human rights to the local level, and to develop new practices designed to bring about global urban justice.  This book brings together academics and practitioners at the forefront of human rights cities and the 'right to the city' movement to critically discuss their history and also the potential that human rights cities hold for global urban justice."

The topic will be explored at a December conference, Global Justice Goes Local: The Emergence of the Human Rights Cities. Martha Davis will keynote the event to be held at Northeastern Law School and sponsored by the Program on Human Rights and the Global Economy.   More information about the conference may be found here.

October 27, 2016 in Books and articles, Margaret Drew, Martha F. Davis | Permalink | Comments (0)

Thursday, August 25, 2016

Standing Rock Sioux Seek UN Assistance

The Standing Rock Sioux and the International Indian Treaty Council opposing the Dakota Access Pipeline have asked four UN Special Rapporteurs to intervene to stop the work on the project.  According to a report in Indian Country Today, the groups cited  “ongoing threats and violations to the human rights of the Tribe, its members and its future generations.”  The urgent communication was submitted to UN Special Rapporteurs on the situation of human rights defenders, the Rights of Indigenous Peoples, the human right to safe drinking water and sanitation, and Environment and Human Rights, as well as the Office of the UN High Commissioner for Human Rights.  A more detailed description of the communication is available here.  Pipeline construction was halted pending resolution of a court proceeding, with the hearing now scheduled for September 8.

 

 

 

August 25, 2016 in Environment, Martha F. Davis, Native American | Permalink | Comments (0)

Monday, March 14, 2016

Hacking for Human Rights

Since 2013, "Diplohacks" have been held once or twice a year in locations around the world to "creatively 'hack' real world problems — to explore innovative ideas that leverage new technologies to solve old challenges."  Diplohackers include diplomats, techies, social entrepreneurs, academics, civil society representatives and human rights activists.  

In February 2016, Diplohackers met in Geneva and took on a list of challenges presented by the Office of the High Commissioner for Human Rights.  Specifically,  the hackers spent 48 hours developing new ways to gather and verify evidence of human rights abuses.  Read the full report and see the video here.  For a description of one team's solution to the problem, check out this link

For more information on innovative approaches to human rights methodology in the US, follow the progress of the newly launched Human Rights Methodology Lab, co-sponsored by the NYU Center for Human Rights, Global Justice and Columbia Law School's Human Rights Institute, and Human Rights Watch.

March 14, 2016 in Martha F. Davis | Permalink | Comments (0)

Saturday, February 27, 2016

From the Human Rights Bookshelf: Gender-Based Asylum and US Immigration Policies

Meghana Nayak, a political scientist at Pace University, has written a new book published by Oxford University Press, titled:  Who is Worthy of Protection: Gender-Based Asylum and U.S. Immigration Policies.  Here's the publisher's description:

A surprisingly understudied topic in international relations is that of gender-based asylum, even though the tactic has been adopted in an increasing number of countries in the global north and west. Those adjudicating gender-based asylum cases must investicate the specific category of gender violence committed against the asylum-seeker, as well as the role of the asylum-seeker's home state in being complicit with such violence. As Nayak argues, it matters not just that but how we respond to gender violence and persecution. Feminist advocates, U.S. governmental officials, and asylum adjudicators have articulated different "frames" for different types of gender violence, promoting ideas about how to categorize violence, its causes, and who counts as its victims. These frames, in turn, may be used successfully to grant asylum to persecuted migrants; however, the frames are also very narrow and limited. This is because the U.S. must negotiate the tension between immigration restriction and human rights obligations to protect refugees from persecution. The effects of the asylum frames are two-fold. First, they leave out or distort the stories and experiences of asylum-seekers who do not "fit" the frames. Second, the frames reflect but also serve as an entry point to deepen, strengthen, and shape the U.S. position of power relative to other countries, international organizations, and immigrant communities. This book explores the politics of gender-based asylum through a comparative examination of asylum policy and cases regarding domestic violence, female circumcision, rape, trafficking, coercive sterilization/abortion, and persecution based on sexual and gender identity.

M. Bob Kao reviewed the book on-line for the London School of Economics Review of Books, calling it an "important contribution."

February 27, 2016 in Gender, Immigration, Martha F. Davis | Permalink | Comments (0)

Monday, February 22, 2016

The US Influence on the Human Rights Council

The Jacob Blaustein Institute for the Advancement of Human Rights (JBI Human Rights) has published a study of changes to the UN Human Rights Council's operations during the US membership from the Council, 2009-2015.  This year, per the Council's rules, the US is off the body, but it need stay off only one year and it has indicated that it will see re-election next year.  Meanwhile, JRI Human Rights concludes that the US influence has been largely positive, resulting in more country specific resolutions and more special procedures.  It urges the HRC to maintain those gains during the coming year. 

February 22, 2016 in Martha F. Davis | Permalink | Comments (0)

Wednesday, February 17, 2016

Upcoming Human Rights Events

Check out these three upcoming human rights events:

Human Rights, Borders and Barriers Symposium, Feb. 22-24, 6-9 p.m. for three successive evenings, sponsored by the University of Arizona Foundation.  This free symposium will feature speakers talking about such topics as human rights, migration flows in the US, Europe, and Africa, terrorism, war conflicts, and freedom of expression.  Lectures and discussions will focus on contemporary national and transnational issues such as Ferguson, Charleston, Baltimore, Charlie Hebdo, Paris attacks, and the global refugee crisis

The George Washington University Law School is hosting an International Law Review Symposium on the Identity and Future of Human Rights. The symposium will be held on Saturday, April 9, 2016 from 9:00am-4:15pm (EST).  The organizers write:

The modern human rights project began with the passage of the Universal Declaration of Human Rights and the drafting of the two Covenants on Civil and Political and Economic, Social and Cultural Rights. Following this, special agreements started being drafted, applicable specifically to groups such as racial minorities, women, migrants, and others. Are these special agreements simply a reflection of special interest politics that undermine the notion of universal human rights or do they reinforce universal norms? How much do these specific treaties call for accommodation or exemptions from otherwise applicable laws? Are regional systems part of the subdivision of human rights to reflect regional identity or do they provide effective means to enforce global standards?

BU School of Public Health hosts (Public) Health and Human Rights, April 6, 9 a.m. - 3 p.m. , with speakers Juan Mendez and  Dainius Pūras.  According to the symposium website:

             The right to health both defines a “health in all policies” agenda and prohibits state cruelty. The UN rapporteurs on             the right to health and torture will help us set a forward-looking health and human rights strategy.

February 17, 2016 in Martha F. Davis | Permalink | Comments (0)

Tuesday, February 16, 2016

The Human Right to Sanitation

Inga Winkler, a scholar in residence at NYU Law School, is a leading thinker and writer on the human right to water and sanitation.  Her definitive book, The Human Right to Water, appeared in 2012.  Now, she has contributed a companion analysis of the human right to sanitation: The Human Right to Sanitation, forthcoming in 37 U. Penn J. Int'l L. (2016).  The article is currently available on SSRN.  Here is the abstract: 

Abstract:     

Sanitation is a very personal and private matter, inextricably linked to human dignity. At the same time, sanitation has an important public health dimension. In this regard, sanitation is not only about an individual’s right to have access to a toilet or latrine. Inadequate sanitation leads to contamination of the environment, of public spaces and water bodies through feces and wastewater and therefore has a negative impact on public health and the life and well-being of everyone in the community, affecting their human rights to health, life, food, and a healthy environment. This multitude of rights concerned makes sanitation complex to understand and address through the lens of human rights.

The Article provides background on the lack of access to sanitation faced by billions of people and highlights, in particular, inequalities in access to sanitation. It discusses how sanitation has long been, and continues to be, a neglected issue and how it is slowly gaining more and more attention, including in the context of human rights. The Article traces the steps that led to the political recognition of the human right to sanitation, and then discusses the legal status of the right to sanitation: is sanitation a “new” human right? Or has it rather been an implicit component of existing human rights guarantees that has only recently started receiving increasing attention? The Article argues that sanitation has a legal basis in existing human rights law and is best understood as a distinct human right (also distinct from the human right to water) as a component of the human right to an adequate standard of living. It provides clarification on the definition and specification of the right to sanitation through the criteria of availability, accessibility, affordability, quality and hygiene, and acceptability.

Finally, the Article discusses the complexity of realizing the right to sanitation and related human rights combining the aspects of individual dignity and public health. It acknowledges that sanitation is largely a matter of individual responsibility, but argues that states have a significant role to play in creating the environment that enables individuals to practice adequate sanitation as well as in ensuring public health.

 

February 16, 2016 in Health, Martha F. Davis | Permalink | Comments (0)

Wednesday, January 13, 2016

The State of the Human Rights Union

by Margaret Drew and Martha Davis

Last night President Obama gave what was billed as his last State of the Union Address.  We review that speech to consider how deeply President Obama incorporated human rights themes into his vision of the American future.  

Franklin D. Roosevelt set a high bar for State of the Union speeches in 1941 with his "Four Freedoms" speech.  In that speech, President Roosevelt went beyond the Four Freedoms to also identify the foundations of a healthy and strong America:  "Equality of opportunity for youth and for others.  Jobs for those who can work.  Security for those who need it.  The ending of special privilege for the few.  The preservation of civil liberties for all." 

Sound familiar?  In large part, the identical foundations were sounded by President Obama, who acknowledged Roosevelt during his own speech.  An important difference is that Roosevelt's address was delivered at the beginning of his 3rd term, laying out an agenda that he would champion during the coming years.  In contrast, President Obama largely presented these themes as challenges for the future, for the next 5 to 10 years, with few specifics about what his own administration's affirmative contributions might be over the next 12 months.   

On the specific human rights challenges facing the nation, the speech was mixed.  On one hand, the President identified some human rights goals that were accomplished, such as the Affordable Care Act -- certainly with its flaws, but on a path toward realization of the human right to health.  He also praised the nation's contributions to ending the Ebola crisis and moves toward clean energy that help preserve human rights in the long run.

On the other hand, he identified several human rights goals that remain unachieved in the final year of his presidency.  He cited the failure to close Guantanamo, as he has in all but one of his State of the Union addresses, but with no new ideas about how to gain its closure.  The President also identified criminal justice reform and substance addictions as among the social issues yet to be tackled.  A State of the Union address may not be the time for details, but some of President Obama's calls for human rights-related reforms were particularly blurry.  For example, what does immigration "reform" encompass?  Will fair processes be assured?  Will meaningful legal representation be part of reform?

In the speech itself, President Obama followed President Roosevelt's 1941 outline.  The first set of future challenges he addressed centered on equality of opportunity.  He cited universal pre-K and more affordable higher education, key components of children's human rights and the human right to education.  On the second major issue, economic opportunity, the president spoke of wage equity, portability of benefits, paid leave and a higher minimum wage as needed reforms to address a changing workforce and to ensure freedom from want.  

Discussing security, President Obama focused internationally rather than domestically.  Here, he departed from President Roosevelt's focus on wartime preparations and instead commented on international developments that have a profound effect on international human rights implementation, and indeed, the viability of the international human rights system.  He decried isolationism, but at the same time observed that the role of the nation state has declined, and "the international system built after World War II is struggling to keep pace."  Again, without offering any specifics, he urged that it is "up to the United States to remake that system."  Yet in describing his administration's efforts to eliminate Osama Bin Laden and other terrorist groups and individuals, President Obama glossed over any human rights issues that his approach might raise.

Finally, in perhaps the most effective portion of the address, President Obama followed Roosevelt's lead and turned to "ending the special privilege for the few," and "preserving civil liberties for all."  With veiled references to the Koch brothers, the president called for bipartisan efforts to reform campaign finance laws and ensure that elections are not controlled by a few wealthy families.  He called on all Americans to champion the fundamental right to vote.  And he decried broad political rhetoric that brands individuals based on religion and curbs civil liberties.

There were some notable omissions from President Obama's address.  He did not, for example, dwell on issues of race, even though this was a year of significant racial tension in American cities.  And he did not utter the phrase "human rights" even one time, though many of the themes that he sounded resonated in human rights terms. 

In his first innaugural address, President Roosevelt delivered the famous admonition that "the only thing we have to fear is fear itself."  President Obama's speech, though short on specifics, directly challenged the fears that motivate so many current debates over borders, voting, religious freedom and even social supports and climate change.  America's economy is strong, he said, and our military is unsurpassed.  President Obama urged us to reject fear, arguing that we are resourceful and creative, and we need not fear diversity.  This effort to replace fear with hope as a basis for American domestic and foreign policy may be the biggest contribution that the 2016 State of the Union speech made to the cause of US human rights.    

 

 

 

January 13, 2016 in Global Human Rights, Margaret Drew, Martha F. Davis | Permalink | Comments (0)

Tuesday, December 29, 2015

Human Rights 2015 Top 5 Countdown Continues

We continue our review of the top Human Rights at Home stories of 2015.   In the 4th place spot for 2015 is Gay McDougall's moving commentary on the movie Selma, posted January 12. 2015.   Growing up in the segregated south, McDougall attested to the basic truths depicted in the film.  In the weeks and months following McDougall's commentary, the movie continued to encourage discussion of race and human rights in the U.S., with a highpoint at the Academy Awards.  Though nominated, Selma did not win Best Picture.  However, when Selma composer John Legend accepted the Academy Award for best song (for "Glory"),  he took the opportunity to observe before an international viewing audience that "[t]here are more black men under correctional control today than there were under slavery in 1850."  Along the same lines, Kairos Center Director Larry Cox has used Selma as a starting point for an analyzing the challenges of moving from civil rights to human rights.

McDougall's own work on human rights and civil rights also continues apace, and in July 2015, she was confirmed as a member of the UN Committee on the Elimination of All Forms of Racial Discrimination.

Turning to the news of the day: the Food Labor Research Center, the Berkeley International Human Rights Law Clinic, and the Restaurant Opportunities Centers United have released a comprehensive new report titled Working Below the Line: How the Subminimum Wage for Tipped Restaurant Workers Violates International Human Rights Standards.  With case studies and in-depth analysis of the history of tipping and contemporary employment laws, the report makes a strong case for reform on the local and national levels.

Tomorrow, we highlight the blog entry in the #3 spot for 2015 -- check back!

 

 

December 29, 2015 in Martha F. Davis | Permalink | Comments (0)

Monday, December 28, 2015

Human Rights 2015 Top Five Countdown

What were the big US human rights stories of 2015?  This week, in addition to reporting on breaking US human rights news, we will be looking back over the Human Rights at Home blog entries from the past 12 months that garnered the highest readership.  As we review these top stories, we'll also provide updates. 

Human Rights Countdown: #5

Tied for fifth place are two postings in November.  One of the postings, the Human Cost of the Refugee Backlash, relates current refugee debates to the similar issues arising before and during World War II.  At the time the post was written, several European nations were speaking out against border controls.  Now, however, even Norway and Sweden have imposed border controls, and Germany, with Chancellor Angela Merkel at the helm, is leading European efforts to address the refugee issue in humanitarian terms.  Merkel's singular leadership on the refugee issue was among the factors leading to her designation as the Time Person of the Year for 2015.

The second blog tied for 5th place is Utah and the Dignity Discussion, by Jeremiah Ho.  The blog analyzes several attacks on same-sex relationships through the prism of Justice Kennedy's dignity and animus discussions in Obergefell v. Hodges.  In the wake of this posting, a Utah man filed a federal lawsuit charging that he was discriminated against in his workplace based on his same-sex relationship.  In his post, Ho argues that these incidents provide further opportunities for discussion, organizing and progress on equality. 

In current news -- kudos to Professor Sarah Paoletti and her student team from the Transnational Legal Clinic who recently released a new video, Isolated By Force: Denying Migrant Farmworkers Access to Services.   To view this powerful film, a model for both creative lawyering and innovative teaching, click here.

Come back tomorrow for more news, and to continue the Human Rights Top 5 Countdown with the #4 blog of 2015!

 

 

December 28, 2015 in Martha F. Davis | Permalink | Comments (0)

Thursday, November 26, 2015

Extradition Denied based on Concerns about U.S. Human Rights

The Public Interest Law Alliance of Ireland reports that the widespread use of civil commitment in the US is frustrating efforts to gain extraditions.  According to PILA, reporting on a decision issued in October 2015:

"The British High Court has upheld a denial of the United States government’s extradition request concerning a US citizen charged with a number of serious sexual offences. The charges relate to allegations of sexual abuse committed by Roger Giese against a 14 year old boy over a 4 year period from 1998 in California. Giese fled to England while on bail preparing to stand trial, establishing a new identity and remaining undetected by US authorities until 2014.

The High Court upheld the denial of the extradition request because of the ‘real risk’ Giese faced upon return to California that he would be subjected to a procedure known as civil commitment. Civil commitment allows for the indefinite detention of people who have served prison sentences for certain types of sexual offences but are still deemed to be ‘mentally ill and dangerous’ by State-appointed medical experts. It is practised in 20 States in the US, but each State adheres to its own guidelines.

The Court held that civil commitment would constitute a ‘flagrant denial’ of rights protected by the European Convention on Human Rights (ECHR). Though the Court recognised that Article 5 of the ECHR permits the deprivation of liberty in cases which include the lawful detention of persons of unsound mind, it took issue with the overly broad scope of the approach taken by California in its civil commitment procedure. That ‘the net is cast widely’ by those medical professionals responsible for identifying who should be subjected to civil commitment means that those with a mental diagnosis which falls ‘far short of unsound mind’ are likely to be committed. Persons who do not ‘think correctly’ or ‘make the wrong decision’ may also be committed. As such, the Court ruled that the extradition request should be denied given the real risk that Giese may be subjected to civil commitment and thus carrying out the extradition would be inconsistent with his rights under Article 5 of the ECHR.

The case marks the second time British judges have refused extradition requests from US authorities on the grounds that civil commitment of sex offenders constitutes a breach of human rights under the ECHR. The process of civil commitment has also been declared to be unconstitutional by federal judges in the US, in Missouri and Minnesota."

The case received some attention in the US press, with one journalist calling it a striking referendum on the practice.  The U.S. Supreme Court most recently upheld the practice of civil commitment in U.S. v. Comstock, 560 U.S. 126 (2010).  For a scholarly history of civil commitment practices in the U.S., click here.

November 26, 2015 in Global Human Rights, Martha F. Davis | Permalink | Comments (1)

Friday, November 6, 2015

More Learning from Denmark

Courts and administrative agencies that fail to note the relevance of human rights to their work?  Administrators who refuse to cite on-point human rights law and focus only on domestic precedents?  Welcome to Denmark! 

But while Danish adjudicators' approaches to human rights seem remarkably similar to those in the U.S., one professor has developed a new and promising critique of these blindered practices.  Professor Ayo Naesborg-Andersen of the University of Southern Denmark has written a fascinating new study titled Human Rights in National Administrative Law: Dissemination of Knowledge of Human Rights through Administrative Decisions (Djof Publishing 2015), that takes the Danish administrative system to task, not because they are ignoring the law, but because they are failing in their responsibility to enhance the legal capability of their constituents.

In highly readable prose, Professor Naesborg-Andersen argues that human rights law entails not just dry, legal treaty text, but is also intended to enhance individual and group capacity toward legal capability and empowerment.  Many treaties and other aspects of international human rights law explicitly mandate human rights education as part of the law's implementation.  Indeed, the UDHR itself admonishes in its final paragraph that "every individual and every organ of society . . . shall strive by teaching and education to promote respect for these rights and freedoms . . . "  Professor Naesborg-Andersen deftly ties these provisions to broader concepts of empowerment, including capability theory.  She argues that ratification of human rights treaties necessarily entails communication with the populace concerning the treaties' protections as part of this empowerment process.  Among other things, she reviews the large-scale English and Welsh Social Justice Survey, which concluded, not surprisingly, that "Knowing your rights is not particularly important for achieving the desired object, if you obtain relevant advice.  But those who know their rights beforehand are more likely to obtain relevant advice than those who do not know their rights."

Having developed a theoretical underpinning to support integration of human rights norms into domestic law as a tool for expanding legal capacity, Naesborg-Andersen then conducts an exhaustive analysis of several aspects of Danish administrative law, specifically the decisions of the Danish Parliamentary Ombudsman and the Danish Equality Board.  She develops a series of criteria to aid in searching the relevant decisions, and applies those criteria through several levels of analysis.

Among her observations is that the failure to acknowledge relevant human rights creates a vicious cycle.  For example, the more the Ombudsman fails to cite human rights, the less relevant these rights seem to future litigants, and the less knowledge is built up within the Ombudsman's own office regarding these rights.

At the end of the day, Naesborg-Andersen has to acknowledge that the fault for lack of comprehensive human rights knowledge in Danish society does not fall exclusively on the administrative justice system.  Parliamentary debate, news stories, school lessons, could all further human rights knowledge and capability.  But, she concludes, the Ombudsman and the Equality Board have a special obligation to "educate the general population about their work," and "an integral part of their work is to further the legal capability of Denmark."  Unfortunately, as we have also seen in the U.S., the "lack of knowledge about human rights visible in the judgments can in itself suppress human rights from being considered applicable."  By considering the obligation of administrative agencies to enhance legal capability, Professor Naesborg-Andersen has pointed a route out of this disempowering loop.

November 6, 2015 in Martha F. Davis | Permalink | Comments (0)

Wednesday, November 4, 2015

A Long View of the Torture Memos

I had some misgivings as my trip to Trondheim, Norway approached.  I was scheduled to speak to students and faculty at the Norwegian University of Science and Technology about the Torture Memos and detainee treatment at Guantanamo -- not comfortable topics for an American abroad.   How I would have preferred to discuss some of the other, more positive topics covered in this blog -- how US mayors are stepping up to implement human rights norms locally, or how the social movement for marriage equality succeeded in changing the law and lives.  But the Norwegian students had just read Guantanamo Diary, and they were anxious to talk with an American lawyer about the range of issues raised by that book -- torture, indefinite detention, censorship and so on.

I touched on all of those topics, but framed my remarks around the legal ethics issues that I'm most familiar with, and argued that on top of everything else, the organized bar failed to adequately respond to the Torture Memos.  The audience was knowledgeable and tough, and asked more than once why there was so little accountability for the torture policies at the highest levels of US government.

The day after my talk, I had the opportunity to visit the Falstad Memorial and Human Rights Centre about an hour's train ride outside of Trondheim.  Falstad was built as a special school for delinquent boys but starting in 1941, it served as the Falstad SS prison camp during the German occupation of Norway.  Political prisoners en route to concentration camps, Jews headed for Auschwitz and others passed through the camp.  Not everyone left.  Some were tortured.  Hundreds of prisoners were shot point blank and buried in unmarked, mass graves in the stately pine forest nearby.

The Falstad Centre is open about its history.  Its original function, our guide told us, could be characterized as a work house for low income children.  When it became an SS camp, it was not only occupying Germans who carried out the barbaric acts there; some of the guards and collaborators were local Norwegians.  And of course, on a national scale, the Norwegian puppet government provided cover for German policies during the war.

When the Falstad Centre formally opened in 2006, the foreign Minister of Norway suggested that Falstad could served as a counterweight to the already internationally notorious US torture and detention policies.  The Falstad Centre, he argued, by marking the graves and naming those who passed through the camp, attempts to restore the identity and humanity of the otherwise faceless victims.  It shows, he said, why no individual or government should be excused from honoring basic human rights and permitted to torture or suspend the Geneva Conventions.

While I certainly agree, I took a slightly different lesson from my visit -- and that is, the importance of speaking out about human rights violations, even when it is uncomfortable to do so.  The Falstad Centre's impact is all the more powerful because it confronts the reality of Norwegian collaboration and collective responsibility, as well as the humanity of the occupying forces, though it cannot be a popular to do so -- and indeed, the Falstad exhibit has provoked a wide-ranging debate in Norway.  Though I had mixed feelings about hosting a frank conversation about the Torture Memos in Trondheim, I came away from Falstad feeling that holding such uncomfortable conversations in all quarters is an important aspect of addressing human rights abuses and, in the long run, finally relegating the violations of the Torture Memos and Guantanamo detentions to history.

 

November 4, 2015 in Convention Against Torture, Martha F. Davis | Permalink | Comments (0)

Friday, September 18, 2015

A Tale of Two Judges: Confronting Water Issues in Michigan

by Martha Davis

Yesterday, in a decision that has not yet been widely reported, the federal district court in Detroit affirmed the bankruptcy court's dismissal of a citizen challenge to the city's water shutoffs.   With the charged atmosphere around water in Detroit, it is perhaps no wonder that the judge deciding the case did not hold oral argument.  However, the absence of an oral argument on the issue compounded feelings that the result was inevitable and that the court had its mind made up before the papers were even filed.

In general, the court repeated and reaffirmed the lower court's conclusions.  However, the district court spent considerable time discussing whether a delinquent commercial customer is "similarly situated" to a human being for purposes of an equal protection claim.  The plaintiffs had alleged that the dissimilar treatment between corporations and individuals constituted an equal protection violation.  According to the court, however, the comparison must be made between an individual and another individual, not between a commercial entity and an individual -- this despite the extensive and growing case law concerning corporate "personhood" for purposes of the Bill of Rights.  Though amici to the plaintiffs had submitted an extensive brief on the relevant international law and its persuasive significance, the decision did not even mention that issue.

The plaintiffs must now decide whether to seek further review before the 6th Circuit Court of Appeals. In the meantime, local activists continue to push for adoption of an affordability plan -- an effort that becomes even more important in the wake of this federal district court decision. 

Interestingly, a decision from a local Michigan judge in early August took a completely different approach.  Considering the water rate crisis in Flint, Michigan, the court there ruled that rate hikes must be rolled back and enjoined further water terminations.  At the end of August, the judge allowed the case to go forward as a class action, a move which reportedly brought Flint officials to the settlement table for the first time.  On September 17, the state appellate court denied the city's request for a stay of the initial order, essentially establishing a moratorium on water terminations.

A foundational principle of federal courts is that they can transcend local politics and render unbiased rulings.  But in Michigan, it appears to be the state court judge rather than the federal one, applying the law fairly but also responsive to the people and savvy to the politics, who is able to move toward justice.

September 18, 2015 in Martha F. Davis, Water | Permalink | Comments (1)

Monday, September 7, 2015

California Moves Ahead on Equal Pay

On Monday, August 31, the California Senate passed the California Fair Pay Act, a law that will take a significant and unprecedented (in the US) step towards workplace equality.  While a number of states and municipalities have adopted "comparable worth" as the standard for measuring wage fairness in public sector jobs, California's new law will extend that standard to the private sector as well.  

Notably, California's Fair Pay Act has the effect of further implementing, on the subnational level, the provisions of CEDAW, the Women's Rights Convention adopted by San Francisco and endorsed by many other California municipalities.  CEDAW specifically accords women"[t]he right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value," a principle reflected in the California Fair Pay Act language.  

Unfortunately, the U.S. government continues to register its opposition to this approach. Indeed, one of the U.S. draft reservations intended to restrict CEDAW’s domestic impact if and when it is ratified by the U.S. is to CEDAW's provision on "equal pay for the work of equal value."  California's bold move should encourage the federal government to re-evaluate this position and join with its peer nations in ratifying CEDAW.

 

September 7, 2015 in Economic Justice, Martha F. Davis, Workplace | Permalink | Comments (0)