Friday, October 24, 2014

Campus Violence, Part One

In 2011, Vice President Biden delivered his “Dear Colleague” letter to college campuses across the nation.  The letter reminded campus administrators of their obligations to protect and provide services to those who experience gender discrimination, including relationship violence.  The letter referenced specific protections and obligations incumbent upon colleges and universities to make known to students, including the school’s resources and processes in the event a student experiences violence. Subsequently, the Department of Education announced the investigation of over 50 campuses that may have inadequate campus responses to gender violence.  Non-compliance can range from deficient web posting of Title IX resources to failure to provide fair hearings for sexual assault survivors seeking remedies through their schools.

3900 campus sexual assaults were reported in 2012. Many schools saw an increase in reporting which is attributed to more responsive efforts on the part of colleges and universities following announcement of the government investigations including more accurate reporting of campus crime.  Nonetheless, sexual assault victims continue to report disrespectful hearings and ineffective resources  in both finding help as well as suitable remedies through the university systems.

Student participants in university hearings more often than not describe dissatisfaction with the pre-hearing process and the process itself.  Hearings officers may not understand violence and others who dismiss the seriousness of an assault.  Same sex students and students of color have complaints that echo victims' complaints of negative experience when they engage the criminal justice system.  Stereotypes can permeate the process or enhance of distrust of the process.  While many students fail to report sexual assault, under reporting is particularly high with students of color and and gender variant students. 

Part two of this post will address recent discussions on how to address campus violence in ways that respect  and are meaningful for all targets of campus violence.







October 24, 2014 | Permalink | Comments (0)

Thursday, October 23, 2014

A Human Rights Lab

More and more social entrepreneurs and innovators seek to break out of the boxes of established institutions by creating "labs," that promise creative spaces, relatively less hierarchy, engagement with technology, and the possibility of social transformation.  Building on this trend, in 2013, the United Nations Development Programme offices in Europe and the Commonwealth of Independent States established the first-of-its-kind Human Rights Lab

According to its website, HuRiLab "is a platform to promote innovative concepts into the Rule of Law, Human Rights, and Justice programming. We seek to facilitate collaboration with institutions and youth/ civil society organizations in order to develop more responsive and effective projects that can address persistent challenges posed by vulnerability, marginalization, and exclusion."

HuRiLab's on-line "idea box" is a place where human rights activists can initiate dialogue about their nascent ideas for transformative social change.  Projects to date include several focused on disabilities and one of particular interest to lawyers, "How can innovation and technology help deliver legal aid more effectively?"

Several of HuRiLab's post-graduate fellows are addressing this access to justice issue during their fellowship year, by setting up access to Skype consultations, for example, and developing the use of mobile tools to access legal information.  The fellows' "microblogs" chronicle their successes and challenges during the year.

The human rights lab model has much to recommend it as a source for both ideas and implementation.  As U.S. advocates work closely with local human rights commissions, and continue the long struggle to establish a national human rights body, perhaps we should also be borrowing a page from HuRiLab and consciously developing new approaches to encourage human rights innovation. 





October 23, 2014 | Permalink | Comments (0)

Wednesday, October 22, 2014

Human Rights Conference Round-up: Education, Immigration, and Children's Rights

It's conference season, and human rights issues are the focus for many upcoming events.  Here are three that are worth a look:

On November 6-7, 2014, the Program on Human Rights and the Global Economy (PHRGE) of Northeastern University School of Law (NUSL) will host its annual Human Rights Institute at NUSL in Boston.  This year’s Institute, titled Rethinking Education Reform: A Human Rights Perspective, will analyze and evaluate the combination of initiatives known as “public education reform.” It will do so with an eye toward identifying policies that will help promote and support the human right to education (alongside all other human rights) for all U.S. school children.  The 2014 Institute will focus on three themes: (1) the charter school movement and the broader trend toward the private provision of public education services; (2) the emergence of “no excuses/zero tolerance” discipline policies resulting in the exclusion of students from school; and (3) the continued expansion of high-stakes testing as the principal means of motivating and measuring educational achievement in public schools, alongside related efforts to further standardize public school curricula.  For more information and to register, click here.

The 20th Annual Herbert Rubin and Justice Rose Luttan Rubin International Law Symposium will be held on November 6, 2014, at NYU Law School.  The Symposium, entitled “The Human Rights of Migrants: From Treaty to Reality,” will examine the potency of international human rights law within the United States. In particular, it will focus on how international human rights perspectives could help the U.S. and other nations reframe national immigration debates to find more humane and functional societal solutions than those currently in place.  More information is available here.

Finally, for a comparative perspective, check out Conference 25 Years CRC, part of a multi-day celebration of the 25th Anniversary of the Children's Rights Convention in Leidin, The Netherlands, from November 17 - 20, 2014.  As part of the festivities, Leidin Law School will host the two-day conference, November 17-18, bringing together children’s rights academics, professionals and students from the four corners of the globe, for a program full of discussion and reflection on the past and future impact of the CRC on topical issues of the children's rights agenda.  The week's events will also include the Leiden Children’s Rights Summit on Universal Children’s Day, 20 November 2014, the Leiden Freedom Lecture, an international moot court competition on children’s rights for students, and the inaugural lecture of Prof Julia Sloth-Nielsen on the 17th of November 2014.  Among the keynote speakers is Bernadine Dohrn, retired clinical professor at Northwestern University and champion of U.S. children's rights and human rights.  More information is available here.

October 22, 2014 | Permalink | Comments (0)

Tuesday, October 21, 2014

New Resource on Inter-American Court of Human Rights

The Inter-American Court of Human Rights (IACHR) Project of the Loyola of Los Angeles International and Comparative Law Review has released its Inter-American Court of Human Rights Database. This freely-available database produced by the editors and staff of the IACHR Project under the supervision of Professor Cesare Romano allows users to search Inter-American Court decisions by case name, country, and topic. Advanced search features include the ability to search by specific violation of various Inter-American Conventions.

Search results include a brief description of the case, information on judges, and violations found by the Inter-American Court. When available, the database includes a link to a detailed case summary which includes case facts, procedural history, merits, and state compliance with the Inter-American Court's judgment. To date, 74 detailed case summaries are available.



October 21, 2014 | Permalink | Comments (0)

Monday, October 20, 2014

Next Steps in Detroit: UN Special Rapporteurs Vindicate The Rights to Water and Human Dignity

On October 20, 2014, the UN Special Rapporteur on the right to adequate housing and the UN Special Rapporteur on the right to safe drinking water issued a joint statement at the close of their informal visit to Detroit,.  While there, the two UN officials investigated the impacts of the city's aggressive policies of shutting off water to 27,000 individuals unable to pay their water bills.

According to the Rapporteurs' joint statement, "[d]isconnections of water due to non-payment are permissible if it can be shown that the resident is able to pay but is not paying. When people are genuinely unable to pay the bill, it is the State’s obligation to provide urgent measures, including financial assistance, a specially low tariff or subsidies, to ensure access to essential water and sanitation for all. Not doing so amounts to a human rights violation."  

 Mindful of the fact that the US has not ratified the International Covenant on Economic, Social and Cultural Rights, the two Rapporteurs framed their concerns around the US's binding obligations under the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racism, as well as the Universal Declaration of Human Rights.  For example, the joint statement pointed out that access to water is a prerequisite to achieving the "right to life" and dignity guaranteed under the ICCPR, and noted that residents who were shut off had no recourse to lawyers to challenge such determinations.  Further, the Rapporteurs raised questions about racial impact of the cut-offs, in light of US obligations under CERD, and called for a federal investigation of these disparate racial impacts. 

Interestingly, the joint statement stresses that the responsibility for ensuring the human rights to water and adequate housing must be implemented at every level of government.  The Special Rapporteurs' recommendations are leveled not only at Detroit, but also at the State of Michigan and federal authorities.  For example, the UN officials recommend that the state and federal government utilize their spending powers to condition funding on the city's provision of adequate water to residents.   The City of Detroit, they recommend, should have in place emergency services for those who are cut off.   And expanding on a recommendation made by the Special Rapporteur on the right to water in 2011, the two officials assert that the United States Government, the State of Michigan and the City of Detroit should adopt a mandatory federal minimum standard on affordability for water and sanitation.

Though the Special Rapporteurs visited the city at the  behest of civil society organizations, they met with the Mayor and City Council of Detroit as well as members of civil society.   Last summer, Michigan Senator John Conyers reached out to President Obama and the Secretary of HHS to seek greater federal oversight and involvement.  However, to date the federal presence has been felt most keenly in the form of the U.S. bankruptcy judge who has ruled that Detroit residents have no right to water, and that the cut-offs can continue.  The Special Rapporteurs' statement took pains to point out that federal courts, like the other branches, are also bound by international human rights obligations.


October 20, 2014 | Permalink | Comments (0)

The Fundamental Nature of Title VII

Professor Maria Linda Ontiveros of the University of San Francisco School of Law has just posted a new article, The Fundamental Nature of Title VII, on SSRN.  In the article, Professor Ontiveros models the relevance of human rights law to domestic legal analysis, arguing that the treatment of employment discrimination under human rights law should be a factor informing the understanding and construction of the "fundamental nature" of Title VII.  The article is slated for publication in the Ohio State Law Journal.  Here is the Abstract:


This article explores the fundamental nature of Title VII and argues that Title VII is a statute designed to protect the right to own and use one's own labor free from discrimination in order to provide meaningful economic opportunity and participation. This conclusion is based upon three different types of analysis: the elements approach; the super statute approach and the human rights approach. The "elements approach" places Title VII in context and argues that it cannot be interpreted in isolation because it is only one element of the Civil Rights Act of 1964. The "super statute approach" argues that Title VII embodies the fundamental principle, originally found in the Thirteenth Amendment to the U.S. Constitution, that individuals have the right to own and use their own labor free of discrimination, in order to have meaningful economic opportunity. This conclusion is supported by a historical analysis which ties together the Fair Employment Practices Commission (which served as the direct predecessor to Title VII); the work of the Civil Rights Section of Roosevelt's Justice Department; and the Thirteenth Amendment and Anti-Peonage Act jurisprudence to show the connection between Title VII and the principles underlying the Thirteenth Amendment. The "human rights approach" shows that international law also categorizes and interprets employment nondiscrimination provisions in this way. The article uses this analysis to explain why the U.S. Supreme Court's recent moves to categorize and interpret Title VII as a tort are incorrect. Finally, it suggests that, if tort analysis were to be imported into Title VII, the doctrine of duty could be used to argue that Title VII creates an affirmative duty for employers to provide a workplace where all employees have a right to meaningful economic opportunity.

October 20, 2014 | Permalink | Comments (0)

Friday, October 17, 2014

Affirmative Action in South Africa

On our sister Human Rights blog, the Oxford Human Rights Hub, Barrister Andrew Wheeler recently published an interesting analysis of South African Police Service v. Solidarity obo  Barnard, a decision of the South African Constitutional Court.  The specific question considered by the court was, essentially, what measures constitute affirmative action and what standard applies to determine whether someone has violated Rule 9(2) of the South African Constitution, which specifies that affirmative action is permitted under South African law.

Comparative examination of affirmative action is not foreign in the U.S.  In her concurrence in Grutter v. Bollinger, Justice Ginsburg noted that affirmative action is an accepted concept under international law and under the laws of many other countries.  In recent years, affirmative action cases before the Supreme Court have often been accompanied by amicus briefs detailing the ways in which peer nations employ affirmative action measures, from quotas to preferences.  This new South African case extends, and perhaps complicates, the comparative jurisprudence in this hotly contested area.  


October 17, 2014 | Permalink | Comments (0)

Thursday, October 16, 2014

Vanita Gupta and Human Rights

Vanita Gupta, the newly appointed (and soon to be formally nominated) Acting Director of the Civil Rights Division of the Department of Justice, will likely have an important role to play in the upcoming Universal Periodic Review of the U.S. conducted under the auspices of the UN Human Rights Council.  Past Civil Rights chiefs and staffs have often served as spokespersons before UN bodies monitoring US compliance with human rights norms, and have contributed to civil society dialogues before and after the reviews.  Happily, Vanita Gupta is one of a new generation of domestic civil rights lawyers who will bring a deep understanding of human rights to the position. 

Gupta has worked on human rights internationally, consulting with the Open Society Institute, for example.   But she has also framed domestic advocacy in human rights terms.  She has served on the U.S. Advisory Board for Human Rights Watch, contributing to that organization’s attention to domestic human rights violations.  And earlier in her career, in 2008, she authored an article entitled “Blazing a Path from Civil Rights to Human Rights: The Pioneering Career of Gay McDougall,” published in Bringing Human Rights Home: A History of Human Rights in the United States, which I co-edited with Cynthia Soohoo and Catherine Albisa.  In that piece, which reproduced an in-depth interview with Gay McDougall, Gupta noted that McDougall “has fundamentally changed the way U.S. civil rights, activists, and lawyers engage with human rights both domestically and globally,” blazing a path for “countless civil rights lawyers in the United States to expand the struggle both in terms of what rights are as well as where and how rights can be affirmed and promoted.”  Gupta’s own record of work on racial justice, immigrant rights, criminal justice reform and other critical U.S. human rights issues exemplifies such a path-breaking approach. 

Vanita Gupta’s appointment and pending nomination have already been praised in many quarters, crossing political divides.  U.S. human rights lawyers and activists also have reason to be encouraged by this nomination.

October 16, 2014 | Permalink | Comments (0)

Civil Debate

Judges, lawyers and others in the profession have been troubled for at least the past decade over the decline in lawyers' civil behavior.  Judges were among the first to observe this phenomenon.  Lawyers appearing before them were becoming more rude to both the judges and opposing counsel.  Lawyers reported similarly disrespectful behavior in professional interactions with opposing counsel. Commentators speculate as to causes of this behavior.  In their book, The Good Lawyer, Seeking Quality in the Practice of Law, authors Linder and Levitt report the opinion that the more impersonal the practice becomes, the less civil lawyer behavior can be.  When electronic communication replaces in person discussion, there are fewer consequences to offensive behavior.  Relative anonynimity can lead to a decrease in civil boundaries.  Without the consequences of confrontation or professional and social ostracism that can result when lawyers behave badly in a small community, there is less incentive for the so inclined to incorporate respectful boundaries into their daily discourse.

So it was with interest that I followed the debate that resulted from the Ford Foundation's publication of responses to its posed question   "When Markets Lead, Will Justice Follow?"  On October 8th, Cathy Albisa, executive director of the National Economic and Social Rights Initiative (NESRI) wrote a response posted on this blog.   The response, in the words of one commentator, "is not an attempt to target or bash Ford Foundation. Instead, it is a carefully calibrated response to the foundation's position."   In an age when civility can be set aside during debate, Ms. Albisa's response is a reminder that those who disagree on important social and humanitarian issues can do so through civil debate.

October 16, 2014 | Permalink | Comments (0)

Wednesday, October 15, 2014

New Human Rights Casebook Focuses on Advocacy in the U.S.

There's a new casebook in town!  Joining the roster of excellent texts on international human rights law is a new and unique law school textbook focused (like this blog) on bringing human rights home to the U.S.:
Human Rights Advocacy in the United States, by Martha F. Davis, Johanna Kalb and Risa E. Kaufman (West Oct. 2014) 
A link to the West webpage on the book is here.  A Teacher's Manual will be available in November. 
According to the publisher:
This pedagogically innovative book is the first of its kind to focus on human rights advocacy in the United States, illuminating a range of important theoretical and doctrinal issues while equipping students to thoughtfully engage these tools in their own practice of law. Readings and case studies expose students to the history, tools, and critiques of the domestic human rights movement and the legal and practical challenges of human rights implementation in the United States. Skills exercises introduce practice-oriented approaches to engaging human rights-based strategies, including practice before international treaty bodies as well as domestic policymakers. Additionally, the appendices offer the text of relevant human rights treaties.

Appropriate for introductory and advanced seminars, as well as clinical and other experiential offerings, the materials engage students on a remarkable range of issues, including immigration, rights of indigenous peoples, counterterrorism and human rights, disparities in access to health care, and the right to housing, while also exploring fundamental issues of federalism, sovereignty, judicial review and legal ethics. 

October 15, 2014 | Permalink | Comments (1)

Tuesday, October 14, 2014

Upcoming Human Rights Conferences

This year marks the This year is the 25th anniversary of the adoption of the UN Convention on the Rights of the Child.  Children's Rights Connect and is hosting an online tactical dialogue,  Improving Access to Justice for Children and Teens from October 13th to 17th, 2014. 

The conversation sponsors make the following observations:

"...[C]hildren often face additional obstacles to those encountered by adults because of their dependent status and lack of standing, the potential conflict of interest with their legal representative(s), the lack of information that is available to them, or simply because they are not taken seriously when they need to seek remedies because their rights are violated.

Making justice systems accessible for children takes work at the local, national, regional and international levels, and needs to include children's opinions in the process. In addition to challenges, we will discuss ideas for facilitating children’s access to justice, such as collective complaints, positive representation of children by NGOs or others and protection of the identities of child victims."

Here is more information for those who wish to join the conversations. HRAH Blogger Jonathan Todres will be one of the conversation leaders.

Rutgers University-New Brunswick will host a one-day conference on the consequences of rising income inequality.  The conference, Income Inequality and U.S. Politics and Culture,     ers will include speakers such as Lisa Miller, Helaine Olin, Vanessa Williamson, Mike Konczal and Beverly Moran.  The conference announcements states:

    Since the 1970s, the United States has witnessed a sharp divergence in economic fortunes, as the     incomes of the wealthiest Americans have exploded while middle-class incomes have largely     stagnated. This conference considers the effects of growing income inequality on the worldviews,     policy ideas, and institutional practices of major U.S. political parties, electoral campaigns, and     social movements.

The conference will be held from 10-4 on October 24, 2014.  More information may be obtained here


October 14, 2014 | Permalink | Comments (0)

Monday, October 13, 2014

A Human Rights Code of Conduct

 By Lauren E. Bartlett

 For the past three years, I have been directing the Local Human Rights Lawyering Project at the Center for Human Rights & Humanitarian Law at American University Washington College of Law.  The Project aims to normalize international human rights law at the local level by incorporating the use of the international human rights framework into the everyday work of legal aid attorneys in the U.S.  The Project has a goal of not only integrating human rights arguments into advocacy, but also using the human rights framework to create shifts in internal office systems and staff-client relationships at legal aid organizations.  I want to share with you what our office has done to this end, as well as what Maryland Legal Aid, one of our Project Partners, has done.

 In our initial discussions with legal aid offices about integrating human rights into office systems and the client-staff relationship, it became clear that there was a need to both articulate the specific human rights principles that could apply and clearly explain how they might apply in the legal aid context.  We wanted to focus on simple, yet ambitious and aspirational principles, such as treating all people with respect and as an equal at all times. Moreover, we wanted the principles to apply to everyone involved in legal aid work: clients, attorneys, administrative staff, supervisors, interns, etc.—the legal aid office as a whole.  In the end, it seemed that a draft code of conduct might be the best way to practically lay all of this out.  Using a number of social work codes of ethics which integrate and/or reflect human rights principles as models, I drafted the following, which I called ‘Human Rights Principles for Legal Aid’:

 1.  Human Dignity

Treat all people with respect, not as a gesture of charity but as an act of justice. Respect the inherent worth of each individual, each family and their communities. Be patient, kind, and on time. Listen with empathy.  Communicate with understanding and honesty. Keep private information private. 


2.   Participation and Self-Determination

Meaningfully involve clients in identifying problems, goals, planning and case strategy. Empower clients to tell their own story and advocate for themselves. Clearly and simply explain the law and process, clients’ rights, the role of Legal Aid, and the role of the client.

 3.   Equality

Respect all others as your equal. Recognize strength in diversity. Take responsibility for discrimination based on your own beliefs, including but not limited to discrimination based on mental health, sexual orientation, homelessness, education level, age, political opinion, culture, source of income, and place of origin. Work to end all discriminatory acts in your office, as well as in your community. 

 4.   Solidarity

Foster teamwork among clients and staff. Constantly challenge the traditional power structure of the client-staff relationship. Recognize your strengths and your client’s strengths and invest those strengths in shared responsibilities. Stand with your clients and fellow staff members to fight poverty and expand rights for the most vulnerable.

5.   Innovation

Pursue creative remedies towards shared goals. Litigation is only one option among many. Ask what more you can do to counsel, educate, and advocate for your clients and their communities. Encourage your client to use other tools including community education, organizing, legislation and civic participation. Consider using international and regional mechanisms such as special rapporteurs, United Nations treaty-body monitoring committees and the Inter-American Commission on Human Rights.

 While discussing these draft principles with my colleagues, our Advisory Board, and our legal aid project partners, it became clear that thinking about human rights principles and office behavior could shift dramatically during the course of the conversation.  For example, in one conversation I had, an advocate went from thinking that there was no reason to include the principle of human dignity because it was too obvious, to seeing that principle as the key part of the whole document.  It seemed that involving staff members in the process of discussing the human rights principles and being involved in drafting the written code might be just as important as the final product. 

In 2012, Maryland Legal Aid decided to draft their own human rights code and dedicated their yearly all-staff human rights training day to the process.  During that training, staff from each office broke into small groups and went through the Universal Declaration of Human Rights to pull out key human rights and language that they thought were most important to the conduct of Maryland Legal Aid staff towards clients.  An organization-wide subcommittee was later formed which compiled all of the notes from the all-staff training and eventually developed the Maryland Legal Aid Guiding Principles for Staff-Client Relationships. That document was also shared with clients for input, and once it was finalized, it was turned into a poster that now hangs in Maryland Legal Aid offices across the state.

 Last year, the Center for Human Rights and Humanitarian Law also developed a human rights code that guides our interactions and work.  The Center is much smaller than Maryland Legal Aid and our staff members are all very familiar with human rights framework on the whole. Therefore, we were able to sit down together and in a single afternoon we put together a draft, which we then reviewed with students, faculty and colleagues at American University Washington College of Law.  We finalized our guiding human rights principles document late last year and it is now posted in our offices and on our website.  We also periodically review the principles at staff meetings and when we face big decisions regarding staffing or outside conflicts.  For us, this process underlined the fact that we should not only advocate for the application and expansion of human rights law, but also practice applying human rights principles to daily decision-making and interpersonal relationships, to truly be a human rights attorney.

 I am sharing this with you all because I think this has been a great exercise for us and for Maryland Legal Aid.  This could be a great process for students, as well as other offices.  For more information on the human rights principles above and a comparison of the human principles to the American Bar Association’s Model Rules of Professional Conduct, please see Section 3.6 of our Human Rights in the U.S. Handbook for Legal Aid Attorneys.

October 13, 2014 | Permalink | Comments (0)

Friday, October 10, 2014

Sustainable Development Goals and U.S. Human Rights

 By Risa E. Kaufman, Columbia Law School Human Rights Institute

 Late September was a busy time at UN headquarters in New York. The 69th Session of the UN General Assembly opened on September 16, bringing together the world’s leaders for discussion of such heady topics as global terrorism, nuclear disarmament and the prevention of armed conflict.  Also on the agenda was discussion of the Sustainable Development Goals, or SDGs.  It’s a conversation that U.S. human rights advocates should pay attention to. 

The SDGs will replace the eight Millennium Development Goals (MDGs), which were adopted by the UN back in 2000 to alleviate global poverty.  The MDGs, which expire in September 2015, have accomplished a great deal, by some measures halving the number of people in the world living in extreme poverty and improving access to clean water, health care and education.  But they have fallen short in other areas and been roundly criticized by many international human rights advocates and organizations for ignoring the interrelated nature of rights and failing to address systemic barriers and underlying inequities and disparities.

Expiration of the MDGs has inspired a robust conversation within the human rights community about what a more universal and holistic set of goals to eradicate poverty might look like.  Groups including the Center for Economic and Social Rights, the Center for Reproductive Rights and CIVICUS have formed a post-2015 Human Rights Caucus and developed a human rights “litmus test” for the SDGs.  The Caucus calls for the SDGs to align with, and explicitly reference, relevant human rights standards; secure the full spectrum of rights; combat inequality and commit to end discrimination; and support the human rights of women and girls.  In addition, the Caucus calls for the SDGs to be premised on universality, indivisibility and interdependence; to ensure transparency and meaningful participation of all people; and to ensure human rights accountability of all actors, including in the private sector.

Civil society, including many international human rights NGOs, have been active participants in the initial conversations about the post-2015 development agenda, including through participation in Rio +20, the UN Conference on Sustainable Development which took place in June 2012 in Rio de Janeiro, Brazil.  In July 2014, building off of the outcomes from Rio +20, the Open Working Group for Sustainable Development Goals issued a Proposal, which is intended as a starting point for the state-level discussions on the SDGs that will take place over the course of the coming year.  But now negotiation and drafting of the final goals rests with the member countries of the UN, in what will largely be a political process. 

What does this all mean for the U.S. human rights community?  While the content and text of the SDGs won’t be final until September 2015, there appears to be fairly broad consensus that they will be premised on the understanding of universality.  The goals will apply to developing and developed countries alike.  Thus, the United States will be accountable for achieving the goals to the same extent as all other countries.  And while they may not explicitly reference human rights, if the Open Working Group’s Proposal is any indication, they are likely to address a more comprehensive set of issues than the MDGs, including access to justice, inequality within and among countries, and climate change. So, it’s an issue worth following, and indeed deserving of some deep thinking.  Just as U.S. advocates are developing creative approaches to hold the U.S. accountable for its international human rights treaty commitments, we should consider, too, how to make the SDGs real and meaningful close to home. 

October 10, 2014 | Permalink | Comments (0)

Thursday, October 9, 2014

De Facto Imprisonment and the Right to a Speedy Trial

by Brian Howe

There is not much available in the way of a comprehensive drafting history for the US Bill of Rights.  It is sometimes difficult or impossible to divine the specific intent of the framers when it comes to any particular clause.  You have to think, though, that when the right to speedy trial was inserted in the Sixth Amendment, Kalief Browder's case was the kind of case the framers had in mind.

Browder was a high school junior when he was arrested on robbery charges for allegedly punching a random passerby and stealing his backpack.  He proclaimed his innocence and pleaded not guilty, but could not afford bond.  Because of repeated delays, he would sit in jail for the next three years without a trial.  Much of that time was spent in solitary confinement, and Browder tried to commit suicide several times.  Twice he was offered a quick or immediate release if he would plead guilty.  Browder refused both times, steadfastly maintained his innocence, and continued to insist on a trial.  He would never get one.  Over 900 days after he was arrested, on his thirty first pretrial court date, prosecutors simply dismissed the charges and Browder was released.  He had just turned 20 years old.
The US Supreme Court has left some ambiguity as to the specifics of the Constitution's guarantee for a speedy trial.  And states can and should have flexibility necessary to set their own procedures within some broad boundaries.  But New York's system is broken.  According to a recent New Yorker article about Browder's case:
"The Bronx courts are so clogged that when a lawyer asks for a one-week adjournment the next court date usually doesn’t happen for six weeks or more. As long as a prosecutor has filed a Notice of Readiness, however, delays caused by court congestion don’t count toward the number of days that are officially held to have elapsed. Every time a prosecutor stood before a judge in Browder’s case, requested a one-week adjournment, and got six weeks instead, this counted as only one week against the six-month deadline. Meanwhile, Browder remained on Rikers, where six weeks still felt like six weeks—and often much longer."
There is  no reasonable explanation for why a prosecutor would request a one week delay to prepare, receive a two month extension, and then still be unprepared-- much less for this to continue for over two dozen hearings.   Browder's attorney in his pending civil suit suggests the delay here was intentional, that prosecutors knew they couldn't produce their witness and were trying to leverage a guilty plea.  Intentional or not, what happened to Browder appears to be extreme but indicative of a larger trend in NY's system, where a large majority of felonies sit for longer than 6 months before trial.
These lengthy pretrial detentions are not limited to New York.  Last month, the ACLU filed a class action suit on behalf of inmates held in Scott County jail in Mississippi, for up to a year without even being appointed an attorney.  
In Mississippi, the delay appears to be caused by the fact that only three grand juries are empaneled per year, and the state courts do not start their clock on speedy trial, or even appoint an attorney, until a formal indictment is issued.  So suspects are arrested, and given a bail hearing without a lawyer, and then wait up to 3-5 months for a grand jury.  If the case isn't brought to the grand jury at that time, then the arrestee just waits another 3-5 months for the next grand jury.  At no point prior to an actual indictment are indigent suspects appointed an attorney who could challenge improper bail, investigate their case, or begin negotiating with prosecutors. As a result, one plaintiff spent over three of the past five years detained in Scott County jail, awaiting trial on three separate charges.  According to the complaint, "he has only been indicted once, he has been to trial once, and he has never been convicted."
 It is hard to imagine a more serious human rights issue than de facto imprisonment without trial.  And it is hard to imagine the Supreme Court would find either of these cases constitutional.  But without strict and vigilant enforcement, the pressures on state systems will always be for greater pretrial delay and less access to appointed counsel.  Even absent any malicious intent from prosecutors, many state legal systems are chronically underfunded, and there is pressure to make the current case load work with as minimal staffing as possible.  Some of these systems could not function without lengthy delays, and these realities almost certainly influence states' own perception of their Sixth Amendment obligations.  The only effective remedy is repeated and strict enforcement from federal courts, which may be soon forthcoming in New York and Mississippi.

October 9, 2014 | Permalink | Comments (0)

Wednesday, October 8, 2014

"Where Markets Lead, Will Justice Follow?": A Response to the Ford Foundation

On October 1, the Ford Foundation published a Ford Forum focused on the question: "Where Markets Lead, Will Justice Follow?"  The Foundation asked eight "changemakers" -- including Raymond Offenheiser of Oxfam America and Judith Samuelson of the Aspen Institute -- to reflect on this question and circulated their essays widely via e-mail and the web.  Other commentators have also published their analyses. 

Cathy Albisa, Executive Director of the National Economic and Social Rights Initiative, offers her critique of, and reflections on, Ford's question here:

The Ford Foundation posed the question “Where Markets Lead, Will Justice Follow?” to leaders in their fields.  Their responses varied in how they framed the market, the role of government, and the need for public goods.  But examining the question seems as important as reflecting on the answer. Why should markets lead? Markets are inherently undemocratic. Markets, as noted by some of the commentators, are only for those with the money to participate in them. And even if almost everyone participates in some aspect of the market, they remain profoundly undemocratic as your “vote” grows or shrinks depending on the amount of money you have. While we know democracy alone does not guarantee human rights, democracy remains an essential part of their character and practice, in particular given the centrality of the human right to participation in the systems, institutions and decision-making that determine basic rights. Is it then not the case that if markets lead in arenas that demand democratic processes, justice has already been compromised?

 Amartya Sen famously wrote “to be generically against markets would be almost as odd as being generically against conversations between people,” arguing that people will always exchange goods and services. I believe this is likely to be true, and probably a good thing. But the evidence does not support the premise that markets consistently distribute those goods and services in an optimal way. On the contrary, there are profoundly important markets that do anything but that. Healthcare is a market – albeit a heavily subsidized one – in the United States that allows thousands to die due to lack of care while costing more than publicly financed systems with better outcomes. Our private healthcare financing system has perverse incentives to deny care, although clearly the goal of a healthcare sector should be to provide care. Care and profit are desperately at odds in a private insurance system. Housing is a profoundly important market to our economy – yet we have three times as many empty homes as homeless people. And these are but a few of the market arenas in which human rights are seriously at risk. Clearly something is amiss.

 The questions we ask are often more important than the answers. They point to the paths we allow ourselves to consider and guide our thinking. Because markets are no more than vehicles towards other ends – profit, efficiency, growth, distribution, infrastructure -- we might want to avoid putting them at the beginning of the question. We must lead with our values and if we are concerned with the outsized role of markets, as we should be, what we need to be asking is “where human rights lead, will markets follow?”  In some cases the answer is a resounding no, such as healthcare financing. That market has been nothing short of calamitous. The scorecard on housing isn’t very good either, although we are very far from imagining a scalable alternative. And in our world dominated by indifferent markets, work fails to deliver a decent standard of living, dignity or fulfillment for far too many. Does that mean we reject all markets wholesale? That would be shortsighted and thoughtless. In fact, it would be as shortsighted and thoughtless as the market fundamentalism that has taken hold, where we fail to even consider alternatives and almost pathologically ignore the evidence.  Market fundamentalism, which I loosely define as an almost divine faith in the inherent value of markets, irrespective of the evidence, is among the greatest threats to human rights today. But can we create more democratic markets?  And can markets play a more constructive role? These are important questions, and we need to look for honest and realistic answers.

 There are some arenas, however, where markets have clearly demonstrated their incompatibility with human rights. When it comes to basic human rights, such as education, healthcare, housing, food, water and a basic standard of living, government must play whatever role is necessary. Nonetheless, given a range of markets are the source of great injustices, the other question we need to ask is how can we build the power to make markets follow at least the minimal human rights obligations? Judith Samuelson, of the Aspen Institute, states that what matters in terms of corporate social responsibility is CEO leadership. I can’t imagine a less tenable situation than human rights depending on who happens to have those jobs. It is far from a structural or reliable solution. So what is a solution and, just as importantly, how do we get there? Despite Ray Offenheiser’s claim that Oxfam was not seeing “the kind of transformative structural change that [they] were after” with grassroots work, one of the most transformative examples we have in making markets follow basic human rights standards is right here in the United States: the Campaign for Fair Food. The Campaign for Fair Food has been led by farmworkers themselves who have worked simultaneously downstream in communities, with consumers, and activist networks, as well as upstream in collaboration with corporations, but only after building an unstoppable movement to end abuses in the agricultural supply chain in our country. The Campaign has resulted in the Fair Food Program – a comprehensive complaints-based, monitoring and worker-to-worker education system powered by swift market consequences for violations – that represents a worker-driven social responsibility model meriting further support.  We should be learning from those experiences that shifting power dynamics so our human rights are not at the mercy of any specific individual’s largess. And as Mr. Offenheiser notes, we must move from corporate responsibility to corporate accountability, which requires strengthening the role of government not only in setting standards, but in actual enforcement.  

 Even with the question posed, to be fair, many of the respondents agreed that we must reject market fundamentalism and argued for public goods and infrastructure, while others took less clear positions. It is a healthy and valid debate, but only if paired with a questioning of all our underlying assumptions and a clear message that we must always lead with our values.


October 8, 2014 | Permalink | Comments (0)

Tuesday, October 7, 2014

Leaving the Work - The Ultimate Self-Care?

Earlier I posted about the importance of self-care for those us working in human rights advocacy.

The topic I  address today goes beyond sustaining those who engage in human rights advocacy, whether that advocacy is through writing, representation, policy work or other service.  Having engaged in human rights training for judges, advocates, lawyers and other professionals I have encountered a serious problem for many whom I have met.  Advocates struggle when they believe it might be time to change their work.  Few of us  are having the discussion about recognizing when it is time to leave human rights work.  Some have  expressed feeling guilty about a desire to change fields. 

We are, by and large, a hopeful, happy and effective community.

Yet, each individual must decide what the scope and length of her work will be.   While challenging, human rights work is rewarding. How satisfying it has been over the past few years to see dramatically increased awareness and understanding of human rights in the U.S.

Emotional exhaustion can creep in, however, despite our best efforts at self-care.  For example,  those  working with immigrant juvenile detainees particularly in border states, deal with sadness on a daily basis. One journalist has described the detention centers as "having the feel of livestock areas at state fairs." Not only do those providing direct services observe disturbing living conditions, but they work with the knowledge that if their efforts fail, children may return to extremely dangerous conditions in their home nations. Many others work in equally distressing environments. 

While most of us may not advocate in such extreme environments, every level of human rights work comes with difficult and disturbing realities.  Secondary work on human rights violations can be traumatic.  For example, just reading about human rights violations can take its toll if not managed properly. 

We must give ourselves permission to change what we do.  Change might mean leaving direct representation for policy work or leaving human rights work altogether.  Our first obligation is to our own  happiness and good emotional health.  Knowing when to leave is not always easy. Sometimes we must consciously make space in order to assess our emotions and intuition. Sometimes we are near collapse before acknowledging the stress and sadness that are companions to human rights violations.  For some, their contribution may extend over a lifetime.  For others it may be for a year or less.  For example, what students learn from a human rights externship or clinic, or from a week spent assisting those who live in poverty, cannot be measured.  Students leave the experiences with new perspectives, in itself a valuable cultural contribution. 

We are an exciting and thoughtful community.  One important role we can play is to give each other permission to stop the work.  We provide a valuable service to the community when we honor all who engage in human rights work, without time as a measurement.  





October 7, 2014 | Permalink | Comments (0)

Monday, October 6, 2014

The Fundamental Right to Be Free of Violence and Abuse

In recognition of National Domestic Violence Awareness Month (October), we publish another in a series of posts addressing violence against women.  Today's post, by JoAnn Kamuf Ward and Erin Foley Smith of Columbia Law School's Human Rights Institute, is cross-posted from the Cities for CEDAW website.

By JoAnn Kamuf Ward and Erin Foley Smith of Columbia Law School’s Human Rights Institute

September marked the twentieth anniversary of the Violence Against Women Act (VAWA). VAWA was initially introduced in 1990 by then-Senator Joe Biden, as “a national strategy” to address violence against women, by holding offenders accountable, providing services to victims, and improving criminal justice responses.

Two decades after VAWA’s enactment, violence against women remains a serious problem in the U.S. Domestic violence and sexual assault are two of the most prevalent forms; there are approximately 237,800 sexual assault victims every year, and one in four women will experience domestic violence in her lifetime.

Over the years, some of VAWA’s protections have been watered down, like the ability of survivors to sue individual abusers in federal court—which was rejected by the Supreme Court in 2000. But today there is a renewed federal effort by Vice President Biden to increase accountability. This includes a Vice Presidential Summit bringing together the Department of Justice, legal scholars, and state and local prosecutors to restore the right to sue. However, even if restored, an accountability gap will remain. Indeed, many advocates are pushing for greater accountability for institutions that play a role in perpetuating gender-based violence, including law enforcement agencies, which have engaged in gender-biased policing, including mishandling reported cases of domestic violence and sexual assault, and harboring officers who engaged in acts of gender-based violence.

And ultimately eliminating violence against women requires more than an ability to sue abusers; it requires a comprehensive approach, focused on preventing violence and eradicating its root causes (such as discrimination, social biases, and a lack of adequate institutional responses). This is one of the reasons that advocates and governments alike are looking to human rights principles to address such violence.

In a notable step, President Obama issued a proclamation on the anniversary of VAWA “reaffirm[ing] the basic human right to be free from violence and abuse.” The proclamation echoes initiatives from localities across the country. As of today, twelve jurisdictions have passed local resolutions recognizing freedom from domestic violence and/or violence against women as a fundamental human right, including Albany, Austin, Texas, Baltimore, Boston and Miami-Dade County. Most of these resolutions cite to international human rights law and to the landmark decision of the Inter-American Commission on Human Rights in the case of Jessica Lenahan (Gonzales) v. United States. They further highlight that government has a responsibility to secure the right to be free from domestic violence, and some direct local officials to incorporate human rights principles into governmental policy and practice. While non-binding, the resolutions demonstrate support for a new, rights-based approach to the problem of gender-based violence.

What exactly does a human rights approach entail?  Human rights principles focus on governmental responsibility to proactively take steps to prevent acts of gender-based violence committed by both private and governmental actors. Moreover, they require that gender-based violence, which disproportionately impacts women and sexual minorities, receive the same treatment and resources as other serious crimes of violence. Effective responses to violations that do occur are also an essential piece of the puzzle. Further, the human rights framework prioritizes survivor dignity and empowerment, which are so often missing for victims of crimes like domestic violence and sexual assault. The core elements of international human rights law that provide a roadmap for evaluating existing policies and identifying sustainable solutions are detailed in the recent report, Domestic Violence & Sexual Assault in the United States: A Human Rights Based Approach & Practice Guide.

These principles are reflected in local efforts to integrate human rights into law.  Indeed, Cities for CEDAW goes further than the aspirational commitments made at the federal and local levels, calling on cities to pass ordinances to implement the international human rights treaty on women’s rights to address gender inequity in a number of arenas, including employment, and could benefit domestic violence survivors by allowing them to use their paid sick leave when dealing with stalking or domestic violence.

The momentum around fulfilling the right to be free from violence at the federal, state, and local levels is inspiring. A more comprehensive, prevention-based approach to law and policy that puts women’s equality at the fore is sorely needed. It’s up to women and men in our communities to signal their commitment to human rights, and to call on our elected officials to do the same.

October 6, 2014 | Permalink | Comments (1)

Friday, October 3, 2014

State Facilitation of Sexual Assault of the Incacerated and Detained

As commented earlier by Cindy Soohoo, prison sexual assault continues to be a serious problem despite the passage of the Prison Rape Elimination Act in 2003.  Prison rape is a grossly underreported crime for several reasons.  One is fear of retaliation by the perpetrators.  Another is that complaining prisoners are often placed in solitary confinement for “safety” reasons.   Whether for prisoner protection or punishment, the isolation of solitary confinement is torturous.  Despite these reporting limitations, according to the Bureau of Justice, in 2013 approximately 4% of state and federal inmates reported having been sexually assaulted.  When one considers that conservatively 4% of prisoners are sexually assaulted, and that the incarcerated population is 2.2 million, the minimum number of prisoners sexually assaulted while incarcerated is over 80,000.

While some assaults were by other inmates, the majority were perpetrated by correctional facility staff.  Juveniles report a nearly 10% rate of sexual assault, and this statistic does not include sexual assaults of immigrant juveniles held in detention pending a hearing with the Board of Immigration Appeals.  Most juveniles report multiple assaults.   Of those juveniles held in state or federal facilities, one in five reports 11 or more sexual assaults. Staff is reported to be the overwhelming perpetrators of sexual assault of minors.  With increasing incarceration in the United States, prison overcrowding and the wholesale detention of immigrant juveniles, sexual assault rates of incarcerated and detained minors will likely increase.

 Incarcerated individuals who experience mental illness, transgender individuals and juveniles are particularly vulnerable to sexual assault.

 The majority of sexual violence against incarcerated men and women are state employees.  The state is a direct actor in perpetrating this sexual torture.  By sending persons convicted of crime, those awaiting trial and those detained pending immigration hearings to facilities that are known to be unsafe, the state is  complicit in the sexual assaults.  “ …[I]f a person is to be transferred or sent to the custody or control of an individual or institution known to have engaged in torture or ill-treatment, or has not implemented adequate safeguards, the State is responsible, and its officials subject to punishment for ordering, permitting or participating in this transfer contrary to the State's obligation to take effective measures to prevent torture in accordance with article 2, paragraph 1.”


Editor's note:  This post is part of the shadow report on domestic violence and sexual assault submitted as part of the review of U.S. compliance with the Convention Against Torture. 

October 3, 2014 | Permalink | Comments (0)

Thursday, October 2, 2014

The Growing Movement to Curb Street Harassment

The movement against street harassment is growing.  And leading anti-harassment advocacy groups like Hollaback and Stop Street Harassment characterize it as a basic human rights issue.

Most women experience street harassment as a constant concern which can range from mildly annoying to intimidating and physically threatening.  In 2012, film student Sofie Peeters used a hidden camera to chronicle a "day in the life" of a Belgian woman who was repeatedly accosted by men as she made her way through the city on foot.  Importantly, even women who feel relatively unphased by street harassment nevertheless change their daily behavior in order to avoid it -- for example, driving in the city instead of walking, wearing sunglasses and avoiding places where men may be congregating.

Wide access to social media is an important factor fueling the resurgence of interest in, and activism on, this issue, as women can easily share their experiences on-line and provide support for confronting the harassers or seeking policy changes.  Indeed, the Belgian film went viral and prompted new legislation in Belgium to criminally punish harassers with fines or even imprisonment.  In India, Egypt and a growing number of other locales, activists are using on-line mapping to pinpoint areas where street harassment  most often occurs and to call for a greater law enforcement presence.

Socially-engaged art has also helped build momentum to take this issue seriously.  For example,  feminist artist Tatyana Fazlalizadeh, who will be in residence at Northeastern University next week, has traveled around the country with her participatory public art project on street harassment, Stop Telling Women to Smile

The United Nations spoke to this in 2013, when the UN Commission on the Status of Women for the first time adopted language highlighting the prevalent sexual harassment that women experience in public spaces around the world:

    "The Commission expresses deep concern about violence against women and girls in public spaces, including sexual harassment, especially when it is being used to intimidate women and girls who are exercising any of their human rights and fundamental freedoms."

    A major impact of unchecked street harassment is to discourage women from walking freely in the city and engaging in active participation in civic life.  In light of this, the UN document also calls upon nations to "[i]ncrease measures to protect women and girls from violence and harassment, including sexual harassment and bullying, in both public and private spaces, to address security and safety, through awareness-raising, involvement of local communities, crime prevention laws, policies, programmes such as the Safe Cities Initiative of the United Nations, improved urban planning, infrastructures, public transport and street lighting, and also through social and interactive media." 

While it remains to be seen what approaches will be most effective, i.e., enhanced penalties and other deterrents as in Belgium, redesigned public spaces, public education, or others, the encouraging news is that as a result of women's activism and leadership, street harassment is increasingly understood as a global human rights issue requiring serious responses and ideas for effective change going forward.


October 2, 2014 | Permalink | Comments (0)

Wednesday, October 1, 2014

Ebola’s Human Rights Implications


 Jonathan Todres

 The current Ebola outbreak in West Africa is the largest in history. As of September 23, the disease has produced a total case count of 6,574 (which includes confirmed, probable, and suspected cases) and 3,091 deaths. The CDC estimates that “[w]ithout additional interventions or changes in community behavior … by January 20, 2015, there will be a total of approximately 550,000 Ebola cases in Liberia and Sierra Leone or 1.4 million if corrections for underreporting are made.”  These are frightening numbers that raise the prospects of a global pandemic. The human rights implications are profound.

 At its most basic level, the Ebola outbreak implicates the right to life, enshrined in various human rights instruments including the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child (CRC). It also threatens affected individuals’ right to “the highest attainable standard of physical and mental health,” found in the International Covenant on Economic, Social, and Cultural Rights (ICESCR) as well as the CRC.  As the scale of the outbreak grows, and if it takes a toll on health care professionals, the ripple effect will be significant and likely implicate other rights.

Foremost, a rapid and effective response is needed to contain the outbreak and to ensure the survival and wellbeing of every individual affected by or at risk of Ebola.

Beyond this most pressing concern, Ebola highlights a critical—and undertheorized—question in human rights law. Health rights—like all economic, social, and cultural rights—are tied to a state’s obligation to use “the maximum of its available resources” (ICESCR article 2).  The ICESCR requires states parties to take steps “individually and through international assistance and co-operation.”  The international assistance language clearly means that if a country does not have sufficient resources to ensure the economic, social and cultural rights of all, it must pursue international assistance. The unanswered question is what response human rights law requires of wealthier nations. Reading the international assistance language to mean that wealthier nations are obligated to provide assistance suggests a potentially dramatic broadening of human rights law jurisdiction. States parties to human rights treaties agree to ensure rights to all individuals subject to their jurisdiction, not to individuals in other countries with limited resources. On the one hand, saying that wealthier nations have no obligation to give when asked would render the international assistance language meaningless.

Again, today, the immediate priority and obligation must be to ensure the survival of ill and at-risk individuals. However, the Ebola outbreak also challenges human rights scholars and advocates to more clearly articulate the meaning of the “international assistance” requirement of states’ obligations to ensure economic, social and cultural rights. 


October 1, 2014 | Permalink | Comments (0)