Wednesday, November 25, 2020
I have begun wishing everyone a good long weekend. This year in particular it is difficult for me to say "Happy Thanksgiving". Living in a part of the country that claims to have had the first thanksgiving, i find it difficult to honor the tradition as promoted by whites. Recently I discovered that I am a direct descendant of Mayflower travelers and immediately recognized that this is not something to be proud of. I take marginal comfort in knowing that my ancestors were not Puritans and indeed one ancestor did not intend to stay when the journey began. One blessing of the pandemic was that activities planned to celebrate the 400th anniversary of the pilgrims' landing were canceled.
This year in particular has heightened our awareness of white disregard and devastation of other cultures. Native peoples have suffered longer than any other people in the country now known as the United States of America. Cultural and human genocide have been the favorite tools of powerful whites against Native peoples.
The concept of coming together for a shared meal where we express gratitude for our many blessings is a beautiful one. My hope is that those celebrating the day will devote significant time in reflection on the plight of our devastated First Nations and our obligations to apologize and make reparations. There are many tangible things whites can do immediately bring some relief to Native people, particularly during this time of COVID. See here for an article on the myths and facts of Thanksgiving.
Blessings on our readers and their loved ones.
Tuesday, November 24, 2020
Nestle and Cargill are back before the U.S. Supreme Court defending suits under the Alien Tort Statute (ATS), charging the mega-corporations with “violation[s] of the law of nations.”
In these cases, Petitioners Nestlé USA, Inc., and Cargill, Inc. allegedly aided and abetted in the perpetration of child slavery by cocoa farmers in the Ivory Coast. Respondents, former child slaves who were forced to labor on cocoa plantations, sued Nestlé USA and Cargill under the ATS for violating international law. Among other things, Petitioners argue that the cases against them cannot proceed because they are corporations. Respondents counter that domestic corporations are still subject to the ATS, despite earlier case law narrowing the viable claims against corporations under the ATS.
The case will be argued virtually on December 1. The transcript and audio of the argument will be available soon after on the Supreme Court website.
Sunday, November 22, 2020
The federal government is reportedly intent on completing several additional executions in the coming weeks, squeezing these barbaric acts in before the new Administration takes office. The grim report on the status of planned executions is available from the Death Penalty Information Center. To compound the terrible news of 2020, there have already been 8 federal executions in the U.S. this year, with the most recent occuring last Thursday just minutes after it was cleared to proceed by the Supreme Court. In a voting configuration we're likely to see frequently from the Court, Justices Breyer, Sotomayor, and Kagan, dissented from the one-sentence order that lifted a lower court's injunction of the killing.
When the U.S. recently went through it's Universal Periodic Review, the U.S. death penalty was a frequent focus of government critiques. France, Germany, the Netherlands, Switzerland, and Austria, among others called on the U.S. to end federal executions.
President-elect Biden has indicated that he opposes the death penalty and will work to end it on the federal level. However, with so many competing priorities for the new administration's attention, advocates will need to put pressure to ensure that the machinery of death is paused immediately upon the transition of administrations.
Thursday, November 19, 2020
U.S. Urged to Ensure Access to Sexual and Reproductive Health Services During Review of its Human Rights Record
Editor's Note: We present a post written by CUNY student author Caroline Tenesaca
Last week at the United Nations, multiple countries urged the U.S. to ensure access to comprehensive sexual and reproductive healthcare services during its Universal Periodic Review (UPR). Both the number of countries raising the issue and the specificity of recommendations were notable. Australia (at 47:10) emphasized that refusals of care based on moral and religious beliefs should not restrict women’s access to sexual and reproductive healthcare services. Denmark (at 1:28:41) urged the U.S. to rescind recent Title X regulations to ensure access to comprehensive family planning services for all. Several countries up the need to address maternal mortality.
Throughout the review, countries called on the U.S. to act like the leader in human rights it prides itself being. However, during the review, the U.S. seemed poised to attack rather than protect women’s rights to reproductive healthcare access.
In the State Department report submitted prior to the review, the U.S. asserted a “national commitment to protect the precious gift of life at every stage, from conception to natural death.” At the review, instead of responding to recommendations on reproductive healthcare access, the U.S. touted the State Department’s recent Protecting Life in Global Health Policy (at 1:59:20), which seeks to influence global health policy by attacking the right to abortion, encouraging the preservation of human life before birth, and “strengthening family.”
The Trump Administration’s position at the U.N. reflects the ongoing attack on abortion rights in the U.S. In recent years, states have tried to chip away Roe v. Wade. Many observers fear that Amy Coney Barrett’s confirmation to the Supreme Court substantially increases the chances of Roe being further weakened or overturned. In a post- Roe U.S., states would be free to pass laws that would exacerbate the tremendous inequality in abortion access, especially in the South and the Midwest of the U.S. It is predicted that without Roe, abortion is likely to become illegal in 22 states; about 41% of women of childbearing age would see their nearest abortion clinic close; the average distance women would have to travel to see a clinic could increase up to 280 miles; and overworked clinics might not able to handle the increased demand. These possible changes would most directly affect low-income women, and women of color because they would not be able to afford to travel to clinics if distances increase, arrange childcare, and/or leave from work.
The United States should work on implementing the recommendations made at the UPR and make sexual and reproductive healthcare, including abortion, accessible. One way to do that would be to enact federal legislation, such as the Women’s Health Protection Act, which would protect the constitutional right to abortion, and prohibit burdensome and medically unnecessary requirements that undermines access to services. The U.S. needs to live up to its image of being a champion of human rights—from the UPR session, it is evident that the world is watching.
To view a related video, click here.
For the past few days, the Georgia Secretary of State has been conducting a state-wide hand audit of ballots in the Presidential election. As the recount winds down, there is no indication of fraud and while some additional uncounted ballots were located in one county, President-elect Joe Biden maintained his firm lead.
Those who have been hearing the President crying "fraud," with no evidence presented to date, as well as those who are concerned about the pressure that has been placed on local election officials to illegally suppress votes, should all take comfort in the fact that the Carter Center deployed teams to monitor the recount in counties throughout Georgia. According to the Carter Center, its role is to "assess the postelection audit and related processes to help bolster transparency and confidence in election results." Says the Center, "[a]udits help confirm that the winners of an electoral contest did in fact receive the most votes. The exercise, which is open to the public, reinforces transparency in the electoral system."
The Carter Center has deep experience with non-partisan election monitoring, but it has not previously been on the ground to monitor in the United States. Other recent elections monitored by the Carter Center include Tunisia, Côte d’Ivoire, and Myanmar.
Wednesday, November 18, 2020
By Tamar Ezer (Acting Director, Human Rights Clinic, University of Miami School of Law)
& Gita Howard (Student Fellow, Human Rights Clinic, University of Miami School of Law)
During the past few months in the wake of George Floyd’s painful murder at the hands of police, we’ve seen our country grapple with our overreliance on criminalization to address social issues.
Criminalization seeks to lock people away and make difficult issues invisible, but does not deal with root cause. This was also a theme picked up by country representatives in the U.S.’s recent Universal Periodic Review by the U.N. Human Rights Council. Malta, for instance, urged the U.S. to take a hard look at the role of policing as a response to social problems related to poverty.
One area in which criminalization has dominated with severe negative impacts is in our treatment of drug use. As the Human Rights Clinic at the University of Miami underscored in a recent submission to the U.N. Working Group on Arbitrary Detention, our current highly punitive approach particularly disadvantages racial minorities, people with low incomes, and women. These groups are more likely to be arrested for non-violent crimes in the first place, less likely to afford bail, and more likely to face harsher sentences. Several states also criminalize the pregnancies of women who use drugs, impeding access to necessary health services. Moreover, once incarcerated, pregnant women often do not receive adequate health care.
Recognizing our broken system of incarceration for drug use, the U.S. relies on drug courts to divert people to treatment. However, as the Human Rights Clinic and Drug Policy Alliance addressed in a second submission to the Working Group on Arbitrary Detention, drug courts, while well-meaning, suffer from fundamental flaws. They put treatment in the hands of the criminal justice system, which lacks medical expertise, resulting in the denial of evidence-based treatment and punishment for relapses that are a normal part of recovery. Moreover, drug courts function in a context where treatment that is not court-mandated is often inaccessible, monopolizing scarce resources.
It is time to change our approach and provide care and support, not criminalization.
Monday, November 16, 2020
Editor's Note: Co-Editor Prof. Cindy Soohoo introduces us to her student Maria Ferroni who wrote this piece on the Public Charge Rule.
Last week, during the UN Human Rights Council’s review of the United States’ human rights record, many countries encouraged the U.S. to do more to ensure access to health care. At the U.S.’s Universal Period Review (UPR), Luxembourg called on the U.S. to “guarantee essential health services for all.” After the U.S.’s last UPR in 2015, the Obama Administration pledged to expand access to health care. However, many policies adopted since then have undermined rather than expanded health care access. For instance, the new public charge rule adopted by the Trump Administration actively threatens the right to health for many low-income immigrants and their families.
The Trump’s Administration new public charge rule instills fear in immigrant families by placing a non-citizen’s immigration status at risk if they, or in some instances a family member, accept public benefits, including Medicaid. Under immigration law, if the U.S. determines an immigrant to be a public charge, the person can be refused admission to the U.S. or if they are already in the country, they can be denied the ability to adjust to Permanent Resident Status. Previously, a “public charge” was understood to be someone who is primarily dependent on the government for sustenance and only cash assistance and government funded long-term institutional care were taken into consideration under the public charge test. However, the new public charge regulation adopted last summer now allows immigration officials to consider public benefit programs such as housing assistance, Supplemental Nutrition Assistance Program (SNAP), and most Medicaid programs in making public charge determinations.
As a result of the new regulation, from 2018 to 2019, immigrant families avoided public benefits programs altogether because of their fear of risking future green card status. Since the rule was announced, 79,000 children have withdrawn from Medicaid insurance in California, New Jersey, Tennessee, Texas and Washington. Many immigrant families reported avoiding Medicaid Children’s Health Insurance Program, SNAP, and housing subsidies. Low-income immigrant families are especially reluctant to access public benefits, with 31.5% reporting that they avoided SNAP, Medicaid, and housing.
During last week’s UPR, the U.S. failed to adequately respond to countries that raised concerns about healthcare access. Instead, the Trump Administration, reiterated the position promoted by the State Department’s recent Commission on Unalienable Rights that social and economic rights, such as healthcare, are subordinate to civil and political rights, such as freedom of religion. The Commission’s report has been widely criticized by human rights organizations.
While the Trump Administration will formally accept or reject recommendations from the UPR review this week, the Biden administration will ultimately be responsible for responding to the recommendations.
Sunday, November 15, 2020
Many are using their time to contain irrational fears, dispel misconceptions stoked through the presidential campaign, and bridge the national political divide. Calming fears seems to be the most humane approach to problems in this unprecedented time. Then there is Justice Alito who has no inclination toward constraint. In a speech to attendees of the Federalist Society’s Virtual Convention, Justice Alito fueled conservative obsession with viewing themselves as constitutional victims. Many have reported on Justice Alito's remarks. As readers may be aware, Justice Alito proclaimed that first amendment rights of free exercise of religion and the second amendment right to bear arms are becoming "second class liberties". Most observers have focused on two aspectsof the speech. The first is that it is highly irregular for a sitting justice to discuss matters that are likely to be heard by the court. Also, does the substance of his speech raise the specter of recusal? Although recusal is unlikely in most Supreme Court cases (a la Cheney and Justice Scalia) Justice Alito's biases and prejudgment of issues parts ways with the usual discretion of members of the US Supreme Court.
Aside from the obvious, that Justice Alito is likely to be called to the principal's office this week, another aspect of this spectacle needs addressing. Justice Alito has done what so many Americans have done so well recently. He has made himself, and by extension Federalist Society members, victims of perceived grievances. Justice Alito is highly educated, is in a leadership role within our governmental systems, and presumably is aware of how to use words that can convey concerns without inciting alarm in the targeted audience. Justice Alito set his years of training aside and joined with people of privilege in sharing a view that their religious values and other liberties are under attack. Religious organizations have been unusually successful before the Supreme Court over the last decade. Beginning with Hobby Lobby, small businesses have obtained religious exemptions from providing birth control. Successive victories include Little Sisters of the Poor as well as the broad application of a "ministerial exception" granted to a religious school that engaged in what otherwise would be employment discrimination. Yet- those victories were ignored by the Justice, who instead chose to discuss a Nevada case that held that a regulation permitting casinos to operate during COVID-19 at 50% capacity while limiting church services to 50 people was not an unconstitutional restriction on practice of religion. While some might disagree with the decision, most accepted the restircitons as necessary under extraordinary circumstances. That is true, unless one views any case not finding on behalf of a religious institution as religious persecution. Justice Alito's behavior was not only inappropriate from a judicial perspective, it showed him to be an angry individual who sees himself as a victim despite his enormous privilege.
The perception of victimization has turned into a national pastime over the past two decades and it is beyond disheartening to hear a justice who should represent neutrality and fairness modeling self-centeredness and participating in rhetoric that could lead to even greater polarization. Perhaps there is a medical reason for Justice Alito's lack of decorum. Absent that, those appearing before the court whose views differ from Justice Alito's know what to expect.
Thursday, November 12, 2020
Time to Make an Exception?: The Members of the Tom Lantos Human Rights Commission Should Be Out Front
The Tom Lantos Human Rights Commission, a bipartisan body in the House of Representatives, holds hearings and monitors human rights violations around the world, including fair elections. They are resolute in limiting their work to human rights in other countries. While they sometimes encourage the State Department to be more resolute in protecting human rights abroad -- a worthy activity, for sure -- they avoid any engaging in scrutiny of human rights at home. Their staff explains that this line is necessary to hold the Commission together, since individual political interests and pressure would be too intense to support bi-partisan work on domestic human rights.
Fair enough, I guess.
But as members of the House of Representatives who are on the record as caring about human rights, including free and fair elections, it's also fair to expect that these members would be among the first individuals to declare the 2020 election over, to condemn President Trump's failure to concede, and to begin support of the incoming Biden Administration.
Here is a list of Commission members. Have any of the Republican members on this list acknowledged the human rights issues at stake in the party's current efforts to cast doubt on election results? Have they expressed concern over efforts to sow distrust among voters in the absence of any evidence of election fraud? Have they rejected the President's apparent refusal to facilitate a peaceful transition based on the election?
Whatever influence the Lantos Commission might have in its human rights work abroad is being leached away by the GOP's current activities, along with whatever standing its members might have to opine on human rights internationally. The self-identified human rights champions in the House of Representatives, members of both parties, should be leaders in standing up to what amounts to domestic efforts to undermine the election results. If they can do it for Bahrain, surely they can do it for America.
Tuesday, November 10, 2020
November is Native American Heritage Month. This year readers may be prompted to explore the nature of US relations with Native Peoples from the time of first contact. Many good sources are available, including the The Native People's History of the United States. Black Lives Matters brought a reckoning of what is true, what is not, and what is omitted from the US historical narrative. This crucial examination is long overdue for Native Peoples. That Native Peoples have survived is due to their perseverance and resistance and not due to the acts of white people.
Colonization has had no greater impact in this country than on Native People. Annihilation has been a goal of many US presidents. While that goal has not been accomplished, US policies favor the continued poverty and marginalization of tribal members. The US long history of ignoring treaty provisions, and unilaterally ending agreements with tribes continues.
Reparations, including return of lands, must be considered as part of making right what centuries of violence against Native People has done to destroy Native autonomy and culture.
Sunday, November 8, 2020
The U.S. Human Rights Network reminds us that Monday, November 9, beginning at 8:30 a.m. Eastern, the UN will conduct its Universal Periodic Review of the United States. Though the submissions were made weeks ago, the dynamic of the hearing should be particularly interesting given the election situation in the U.S. This will also be an opportunity participating nations and the NGOs listening in to begin spelling out a human rights agenda for the next Administration -- an agenda which will certainly include an expectation of greater engagement with UN and other international bodies.
Here's the complete announcement from the USHRN, including helpful links:
Hold the US government and the Trump administration accountable. Tune in tomorrow to a crucial moment that occurs once every 4-5 years, the Universal Periodic Review of the United States.
Monday, November 9, 8:30 am ET/7:30 am CT/5:30 am PT
It has been a busy year for Network members and Issue-Area Working Groups, who have worked tirelessly to raise awareness of the UPR process, lobby government missions, and compile reports to inform on the human rights situation on the ground. Tomorrow, the US government will be questioned on its human rights record by UN Member States, who will make recommendations to improve or remedy specific human rights violations.
Please join us in publicizing the UPR and encouraging your networks to tune in to this critical event. To truly hold our government accountable, we must make sure that as many eyes as possible are following this process. It is important to remind your audience of the human rights violations of this administration as it faces global review and scrutiny.
The USHRN Coordinating Center has developed a social media toolkit with sample tweets, hashtags, and social media graphics to fuel your outreach. Feel free to tailor this content for your community, and use data points and hashtags that are relevant and impactful to your audience.
If you have any questions, please contact Kerry McLean, Esq., UPR Coordinator, at firstname.lastname@example.org.
Thursday, November 5, 2020
As previously reported in this blog, the OSCE dispatched a mission to observe the U.S. elections. The mission's preliminary report is available here. Those who have looked at past OSCE reports will know that they are typically dispassionate recitations of regular election processes, with a comments about details that might be improved. In contrast, this report breaks with diplomatic niceties to observe that, among other challenges, "Baseless allegations of systematic deficiencies, notably by the incumbent president, including on election night, harm public trust in democratic institutions." In short, our allies are astounded and saddened by many of the events of the past few days, as are so many of us. A video of the press conference at the end of the OSCE mission can be viewed here.
Importantly, the OSCE mission continues its observation work as the state-level ballot counting continues. Members of the mission will remain in the U.S. for two weeks or more, and will continue to follow the election process in the months that follow. A final report and recommendations will be issued in early 2021.
Wednesday, November 4, 2020
As of this writing, the election looks likely to go to VP Biden. Relief may be the major emotion. An extended exhale.
At the same time the election results are disturbing. A Biden presidency will stave off future harms from that the Trump administration would have brought and some of the damage done through executive orders by a simple act of reversal and repeal. That will go a long way toward preventing some of the environmental damage done over the last four years as well as restoring civil service protections and other arbitrary orders from 45.
But change might be limited. This was an amazing election for turnout. For once most citizens exercised their right to vote. But in many states the vote was close between the candidates. The nation proved its deep division.
The road ahead is bumpy. Racism will continue to divide us. Anti-immigrant sentiment is likely to linger if not accelerate in the short term. Violence may be in our near future with our current president declaring victory despite evidence to the contrary. His followers are told that the election was fraudulent.
None of this is news. Moving forward will be difficult. While President Trump may be defeated, Trumpism has not.
Tuesday, November 3, 2020
As I write this on the evening of Tuesday, November 2, the outcome of the U.S. Presidential election is unknown. It may be called later this evening or in a few days or even weeks. Eventually, official vote counts will be certified.
When they take up the solemn task of counting votes, local officials swear an oath to uphold the Constitution; these are conscientious officials who work for days or weeks to prepare for the election and then intense days after to ensure that the results are fairly tabulated and presented. These folks are not "stealing" the election, but working to ensure an accurate count of the Americans who voted according to the law.
The actual outcome of the election, who wins the Presidency, is no small matter. Perhaps it is, as Joe Biden says, a contest over the soul of the country. Certainly, the rule of law hangs in the balance, as does national engagement with international human rights.
Whatever the outcome in the next few days, we know already that the turnout was tremendous -- the largest for a U.S. election in a century. During a global pandemic, at a time when U.S. democracy sometimes seemed to be sputtering out, and where factions such as the Texas GOP and even the U.S. Postal Service did their darndest to ensure that votes would be diminished, Americans voted. What's more, early assessments are that local voting mechanisms held up against the strain.
The outcome of the election is sure to displease many, no matter what happens, and it will have momentous consequences for the country. But perhaps we can find common ground in our commitment to voting itself, and pride that so many Americans voted despite the odds stacked against them this year. Perhaps we can come together at least to say that those votes, of our fellow Americans, should be counted this year as they should be in every election.
Monday, November 2, 2020
Clashes with angry people are expected to rise in the short term due to increased emotions around the Presidential election. Just in case Trump supporters attempting to drive the Biden Bus off the road is a portent, know that there is a hotline you can call. Organized and operated by Hofstra's Law Reform Clinic. The critical information for Voting Day and during the weeks to follow is that protestors, including those engaged in peaceful protests, will be referred to criminal and civil rigths lawyers for representation.
The clinic will serve legal observers, and military service members that might question the legitimacy of orders that cocerning responses to demonstrators.
The clinic opens November 2nd and depending upon need will run until March 1. 2021.
The website indicates that "Servicemembers, Conscientious Objectors, and Protesters can call the Hotline at 516-463-5935 between 6:00 PM and midnight Eastern Time any night of the week. All calls are strictly confidential."
Sunday, November 1, 2020
Turmoil is coming no matter the election's outcome. A Biden victory does not equate with a return to calm. We remain a divided nation and before the nation can move toward healing, there is trouble to pass through. The president is likely to declare victory before results are announced, and we have been forewarned that he will not leave easily. Many citizens, including many in government, do not believe in democracy. The angry Americans are not going silent. But the rest of us must.
This is the time to return to our spiritual cores. Calm, centering, and self-reflection will serve us. Our defenses against fear must be sharp. Experts tell us that the most effective path to the coming turbulence is non-violent demonstration. Sustaining non-violence demands a strong spiritual core. That is our essentialism for the coming times.
Thursday, October 29, 2020
Applications are open for UN Special Procedures to be appointed at the 46th session of the Human Rights Council in Feb.-March 2021. Of special interest to our readers is the Expert Mechanism on the Rights of Indigenous Peoples, which is seeking a member from North America. The deadline for submitting an application is November 27. The current North American member is Kristen Carpenter, of University of Colorado School of Law.
Wednesday, October 28, 2020
For those interested in the Colloquium on InterAmerican Human Rights Systems begins Thursday morning. The program extends for two days and is free. All discussions will be interpretted into both Spanish and English.
For more information and to register click here.
Tuesday, October 27, 2020
As reported in Indian Country Today, author Paula Peters documented a brutal attack on nine Mashpee Wampanoag men. The book is titled Mashpee Nine: A Book of Cultural Justice and is a companion to the documentary Mashpee Nine: The Beat Goes On.
The book documents a 1976 brutal tactical police attack on Wampanoag drummers that came at a time that the American Indian Movement had become a nationally recognized movement and as Native people sought the recognition and civil rights that alluded them (and still does) despite the Civil Rights Movement on the 1960s. The arrests and ensuing trial are significant in the history of Northeast tribes. As Ms. Peters explains, the young men who were arrested are now elders and their story was in danger of being lost.
While the Mashpee Wampanoags have succeeded in obtaining tribal recognition, they continue under assault from the Trump administration. The ongoing white colonial oppression makes the history recorded in Mashpee Nine essential to understanding the white efforts to remove any power from the tribe. Ms. Peters, who is Mashpee Wampanoag, informs on the history of Native people in the Northeast, particularly on Cape Cod. The tribe has ancient roots going back over 10,000 years. Their history since white contact was one of the first to experience the aggression, forced Christianization, and other white attempts at reducing tribal numbers and influence. The book presents an essential part of our histories.
Monday, October 26, 2020
On Friday, October 23, Congresswomen Ayanna Pressley (MA-07), Rashida Tlaib (MI-13), Alexandria Ocasio-Cortez (NY-14) and Ilhan Omar (MN-05) (also knowns as "The Squad") sent a letter to United Nations High Commissioner for Human Rights Michelle Bachelet, the Organization of American States’ Inter-American Commission on Human Rights, the United Nations Human Rights Council, and 14 UN Special Procedures of the Human Rights Council calling for an independent investigation into the recent, ongoing, and credible allegations of egregious human rights abuses committed by the United States Department of Homeland Security (DHS), its components, and its private contractors on the southern U.S. border.
Joined by several other members of the House of Representatives as well as fifty-three domestic human rights organizations, the letter describes a litany of abuses, from family separation to indefinite detention to unncessary hysterectomies.
No response has been reported as yet. Still, these Representatives deserve praise for taking human rights seriously, and asking for a full and independent review rather than clinging to the tattered rags of so-called "American exceptionalism". Unfortunately, if and when international human rights bodies try to take action, the current Administration may be unresponsive to international monitoring efforts. Indeed, it has been several years since Special Procedures were admitted for an official visit. It's one of many things that we hope will change after the election. Meanwhile, calling out these incidents as human rights violations, as the Squad has done, is a step in the right direction.
The text of the letters is available here.