Wednesday, April 14, 2021
New Article: Implementing the United Nations Declaration on the Rights of Indigenous Peoples in the United States: A Call to Action for Inspired Advocacy in Indian Country
Kristen Carpenter, Edyael Casaperalta, and Danielle Lazore-Thompson, Implementing the United Nations Declaration on the Rights of Indigenous Peoples in the United States: A Call to Action for Inspired Advocacy in Indian Country, U. Colo. L. Rev. Forum (Mar. 6, 2020). Introduction excerpt below:
In 2007, following decades of advocacy by indigenous peoples, the United Nations General Assembly adopted the Declaration on the Rights of Indigenous Peoples (Declaration). This is a standard-setting document supported by the 148 member nations, including the United States, committing to the individual and collective rights of indigenous peoples. These rights include the right to self-determination, equality, property, culture, and economic well-being. John Echohawk, Executive Director of the Native American Rights Fund (NARF), has said that the Declaration affirms many of the rights for which American Indians have been fighting throughout generations. It “recognizes the rights of [indigenous] people to self determination, their traditional lands, and their cultures and religions,” all central aspects of tribal sovereignty. According to Echohawk, it was the tribal leaders who pushed President Barack Obama to express national support for the Declaration in hope that it would “help the tribes prevail in the U.S. judicial, legislative, and administrative forums.”
Today’s challenge is to realize the promises of the Declaration in the lives of indigenous peoples. In 2018, the University of Colorado Law School (CU Law) and NARF committed to working on this challenge in the context of American Indian, Alaska Native, and Native Hawaiian rights. Together they launched the joint “Project to Implement the U.N. Declaration on the Rights of Indigenous Peoples in the United States” (Project). In 2019, CU Law and NARF held a joint conference to set the groundwork for the Project (the Conference), gathering tribal leaders, attorneys, scholars, students, activists, and others to share ideas about the current state of federal Indian law and how the Declaration might be used to inform advocacy in the field. This Report provides a summary of the Conference and suggests next steps for assessing and advancing use of the Declaration in advocacy regarding indigenous peoples’ rights in the United States.
Tuesday, April 13, 2021
Congratulations to the members of the newly established White House Environmental Justice Advisory Council!
Establishing the White House Environmental Justice Advisory Council (WHEJAC) is a historic step towards expanding environmental human rights in the U.S. and I am so pleased to see human rights friends and advocates Catherine Flowers, Michele Roberts, Juan Parras, Dr. Robert Bullard, and Dr. Beverly Wright appointed as WHEJAC members!
The new WHEJAC is tasked with increasing the Federal Government’s efforts to address environmental injustice and its efforts are to include "a broad range of strategic, scientific, technological, regulatory, community engagement, and economic issues related to environmental justice." WHEJAC held its first meeting on March 30, 2021. Be on the look out for future WHEJAC meetings to be announced here.
This news follows shortly after UN human rights experts again raised concerns about "Cancer Alley" in Louisiana in a joint statement released last week. In that joint statement, several UN human rights experts applauded Biden's executive order on Tackling the Climate Crisis, which establishing WHEJAC.
Monday, April 12, 2021
In the wake of the COVID pandemic, there is no doubt that the nation will face a crisis of evictions and foreclosures, similar to what was seen as a result of the 2008 financial collapse. This, in turn, will lead to an increase in homelessness, which disproportionately impacts communities of color. While moratoria on evictions and foreclosures are good and necessary, they cannot go on indefinitely, and they cannot solve the underlying crisis, which may result in tens of millions of people facing homelessness.
There are several things that we, as a nation, must do to prepare for, and hopefully stem, the upcoming crisis. One is to fund and support our Legal Aid and Legal Services organizations, which offer assistance -- through free legal representation -- in stopping evictions, foreclosures, in filing chapter 7 and chapter 13 bankruptcy cases, and in obtaining public benefits.
At all levels of government, funds must be made available to assist tenants and homeowners in paying off rental and mortgage arrears to stay in their homes. The Home Affordable Modification Program (HAMP) was very successful in making it possible for individuals to stay in their homes by modifying their mortgages. The New York State Mortgage Assistance Program (MAP) program provided 0% interest loans to homeowners at risk of foreclosure. Programs similar to these are needed urgently today for homeowners and renters facing eviction or foreclosure.
The courts also have a role to play in creating conditions conducive to lessening the impact of this crisis by mandating settlement conferences in eviction, foreclosure, and bankruptcy cases, and encouraging parties to reach settlements, which will allow people to remain in their homes.
As individuals, we can donate to Legal Aid, Legal Services and related organizations. We can put pressure on our elected officials to fund these organizations as well as programs that provide direct grants and loans to homeowners and tenants at risk of eviction or foreclosure.
Finally, we can be on the front lines by applying to work or volunteer for Legal Aid, Legal Services, and related organization as attorneys, paralegals, or other staff members. There has been much lofty talk of late about building a more equitable future, on the other side of the pandemic. If this is to be more than idle chatter, we must begin with the least well-off, including the homeless and those facing homelessness.
Sunday, April 11, 2021
Please join Northeastern Law School's Program on Human Rights and the Global Economy, the University of Minnesota Human Rights Center, and the Raoul Wallenberg Institute for a webinar on Wednesday April 14, 10 a.m. - 11:15 a.m. EDT, marking the publication of the new Research Handbook on Human Rights and Poverty (Elgar 2021), https://www.e-elgar.com/shop/usd/research-handbook-on-human-rights-and-poverty-9781788977500.html.
Info on webinar registration is below:
Thursday, April 8, 2021
The following UN Human Rights Mechanisms have issued calls for inputs with deadlines in April and May 2021 and law professors whose research and scholarship touches on these topics may be interested in submission:
Special Rapporteur on Contemporary Forms of Slavery – Call for inputs on the role of organized criminal groups with regard to contemporary forms of slavery. Deadline April 16, 2021. Read more.
Special Rapporteur on toxics and human rights – Call for inputs from States and Stakeholders to inform a thematic report on the lifecycle of plastics and human rights. Deadline April 21, 2021. Read more.
Special Rapporteur on violence against women – Call for inputs to inform the Special Rapporteur’s report on femicide. Deadline April 30, 2021. Read more.
Independent Expert on human rights and the environment – Call for inputs on healthy and sustainable food: reducing the environmental impacts of the global food system on human rights. Deadline May 1, 2021. Read more.
Special Rapporteur on the sale of children – Call for inputs on the gender dimensions of the sale and sexual exploitation of children and the importance of integrating a human rights-based and a non-binary approach to combating and eradicating sale and sexual exploitation of children. Deadline May 10, 2021. Read more.
This information was compiled from https://ohchr.org/EN/Pages/calls-for-input.aspx.
Wednesday, April 7, 2021
By Abigail Ramos, 2L at the City University of New York School of Law.
Little has changed for farmworkers since the original enactment of the Federal Labor Standards Act (“FLSA”) in 1938. Along with domestic workers, Congress carved out farmworkers from the legislation’s bedrock promise of overtime. As a result, people who cultivate, pick, and package our food do not get fairly compensated for their backbreaking work and about 30 percent live below the poverty line.
At the time of passage, Black people comprised the majority of farmworkers. The bill was unlikely to pass without the support of southern Democrats, who required the racially motivated exclusion for their vote on the bill to maintain white farmers’ exploitive labor practices. Presently, there are more than 3 million migrant and seasonal farmworkers in the United States, 68 percent of whom are from Mexico. Even now, their continued exclusion is rooted in the country’s reliance on unethical and racialized labor.
No federal court has moved the needle in reversing the statute’s harm. For this reason, states have played a crucial role in guaranteeing overtime pay. Currently, only six states have some form of overtime protections for farmworkers. In New York, overtime is considered after 60 hours worked whereas in California, phase-in legislation provided for overtime after 45 hours worked starting in 2021. Last November, the Washington state supreme court in Martinez-Cuevas v. DeRuyter Bros. Dairy, 475 P.3d 164 (2020), held that farmworkers were entitled to overtime after 40 hours worked under the state constitution.
The 5-4 decision interpreted Article II, Section 35 of the state’s constitution, which requires the legislature to pass “necessary laws for the protection of” workers in employment “dangerous to life or deleterious to health.” Dairy workers argued that they fell under this classification. The court firmly concluded that dairy workers were protected by the state constitution, citing 24-hour milking for 3,000 cows every day as an example of their grueling work conditions. Additionally, the defendant DeRuyter Brothers Dairy forced workers to stay until all cows were milked. The court relied on statistics regarding the injury rate for dairy workers, which in 2015 was “121 percent higher than all other state industries combined and 19 percent higher than the entire agricultural sector.”
The legal victory was the result a unique collaboration between Familias Unidas Por La Justicia (FUJ), Columbia Legal Services (CLS), and Frank Freed Subit & Thomas LLP. FUJ is an “independent farmworker union of indigenous families” formed in 2013 in the west side of Washington state. The union has been a catalyst in pushing for political and cultural shifts in farmworker issues. It has frequently partnered with CLS since its creation, also winning the right to paid rest breaks for farmworkers and requiring employers to provide reasonable access to bathrooms and toilet facilities for farmworkers.
There are more than 100,000 farmworkers in Washington state who benefit from the decision. “Our union has stepped up to it almost unintentionally, but the opportunities are there for us to do more than just a contract,” Edgar Franks, Political Director of FUJ, told HRAH Blog. “A contract [is] awesome because we helped 500 farmworkers here in Skagit [County]. But these lawsuits have the potential of helping hundreds of thousands.”
The celebratory win for this historic decision was cut short, after state Republicans responded with SB 5172, proposed legislation that would have overturned the decision. Originally, in reaction to the agricultural industry’s cry that it would be unable to pay overtime costs, the bill would have limited the court’s ability to grant overtime pay when it would “create a substantially inequitable result.” It was proposed by two state Senators with close ties to the pro-farmer group Washington Farm Bureau. But after FUJ intervened, the proposal was amended to include the compromise of a three-year phase-in period, similar to California’s, and is pending in the state house.
“We didn’t want the phase-in. We wanted it straight out to get implemented,” Franks responded. “[F]or 60 years, workers were denied these benefits intentionally and that was to the benefit to the industry.”
As Washington joins the small list of states remedying nearly a century of injustice, Franks hopes more people will not only become aware of the challenges farmworkers face in their own communities but will partake in the workers’ movements. He said, “Everybody has a role to play in supporting farmworkers, whether it be just community people or churches or students and lawyers: all of us have a role.”
Tuesday, April 6, 2021
On April 8th and 9th, 2021, the American University Washington College of Law International Human Rights Law Clinic will hold live Zoom panels discussing advocacy and litigation efforts against solitary confinement in the United States. This event will feature stories from solitary confinement survivors and provide a platform for attorneys and human rights advocates to present their work fighting against solitary confinement. Attendance is free, but registration is required. Registration is available:
April 8, 2021, 12-1:30pm ET - Day 1 Strategies to Combat U.S. Solitary Confinement: Domestic Legal Approaches https://bit.ly/31EhGrd
April 9, 2021, 12-1:30pm ET - Day 2 Strategies to Combat U.S. Solitary Confinement: International Legal Approaches https://bit.ly/3wmiglc
Monday, April 5, 2021
Over at the LPE Blog, Professor Shirley Lin writes about the law and political economy of disability accommodations. A defining feature of the Americans with Disabilities Act of 1990, the accommodations mandate was drafted with a transformative social model of disability in mind. However, Congress essentially delegated the design for this mandate to the Reagan-era EEOC, which in turn operationalized accommodations through de facto bargaining between employees and employers. By evaluating new empirical evidence relating to race, class, and gender and the theories underlying the mandate, her forthcoming article argues that market logic further limited its redistributive work and society’s ability to critique its effectiveness. In response, her article proposes reallocations of power so that the state can: gather and publicize organizational precedent to enable structural analysis and regulation at scale; legally recognize that dismantling ableist environments and discrimination are collective endeavors; and expand the social insurance model for accommodations through tax policy. Read more here.
Sunday, April 4, 2021
On April 12 and 16, 2021, the University of Miami School of Law International and Graduate Law Programs and Human Rights Clinic, in collaboration with the Human Rights Society, Health Law Association, and University of Miami International and Comparative Law Review —will examine the impact of COVID-19 on international law through a virtual symposium. Speakers include:
- Claudio Grossman, Professor of Law, Dean Emeritus, Raymond I. Geraldson Scholar for International and Humanitarian Law, American University Washington College of Law; Member, UN International Law Commission
- Leilani Farha, former UN Special Rapporteur on Adequate Housing; Global Director, The Shift
- Charles C. Jalloh, Professor of Law, Florida International University College of Law; Member, UN International Law Commission
- Antonia Urrejola Noguera, President, Inter-American Commission on Human Rights
- Nilüfer Oral, Law Faculty, Istanbul Bilgi University; Member, UN International Law Commission
To register and for more information please visit: https://www.law.miami.edu/academics/clinics/human-rights-clinic/international-law-covid19-symposium
Wednesday, March 31, 2021
By Jeremiah Ho
My first “formal” lesson about American racism was in the second grade when Ms. Wildermuth taught us about the life and death of Martin Luther King, Jr. in tandem with his birthday holiday. This was January 1984, a little over a year after my family and I had immigrated to Orange County, California from Taipei, Taiwan. My fluency in English was deepening. After a year in ESL, I was more frequently forming my thoughts in English (thus, abandoning my thinking in Mandarin) and often called upon at school to interpret for my older cousins who had also just moved to the U.S. and attended the same elementary school. In Ms. Wildermuth’s classroom, I sat next to Melanie, the only African-American girl in our class. As we listened to Ms. Wildermuth trace Dr. King’s heroism to the history of enslaved peoples and followed along with the lesson packet that she had given us, I had a strangely comforting thought that perhaps this hatred and prejudice that white people held against outsiders were exclusively directed toward African-Americans and that perhaps people like me were spared because we weren’t Black. I hoped that this were true. It seemed logical—after all, Ms. Wildermuth’s lesson about American racial prejudice didn’t mention any Chinese people. I’m sorry, Melanie, I thought turning to her on my left. Tag, and you’re it.
This idea, of course, was naïve thinking. Separate from this formal lesson on racism, I had already garnered a few informal ones so far in my short time here. In the prior year, during those early months of first grade, when I had to guess what schoolteachers were saying to me and when simple words in the English language were still escapable, had I not been made to feel like an outsider? The first time classmates used their index fingers to pull up their eyes at me, I had no clue of their intentions. But by the third or the fourth time, when I realized the gesture was to mark me as different and foreign, a feeling of threat and loneliness then calcified. In response, wasn’t that why had I suddenly taken up an American first name and insisted that everyone from the school-bus driver to the cafeteria ladies stop calling me by the phonetically-translated Chinese name on my official documents? Wasn’t that the reason why I consciously imitated the way the American kids spoke English so that I could flatten out my accent? Wasn’t that exactly why I was thinking in English so that perhaps American was something I could become? Didn’t these incidents also amount to lessons on racism—however informal, and self-taught?
That night, not only did I relay to my parents what we had learned about MLK, Jr. but also my thoughts that we were safe because we weren’t Black. I assumed I was delivering good news, in the way I had, as the interpreter in the family, been able to sometimes unlock confusion. Perhaps this was a moment I could translate America for my parents, give them a lesson for once. Because they were definitely foreigners compared to me and my burgeoning assimilation. To my surprise, my parents rejected my logic. They chuckled nervously and then the weighted seriousness in their voices relayed how far I had misperceived the entire predicament of racialized America. White people can still hate us because we are outsiders to them, they said. Let us tell you about the story of a Chinese man in Detroit who was beaten to death by some Americans who hated Japanese people and had mistaken him for being Japanese. This was the recent story of Vincent Chin—my second lesson of the same day about another person who was killed for what the color of their skin signified. The feelings of safety that had trailed me home after school were suddenly swept gone. “So just keep your head down,” my father concluded with a solution, a verbal, solemn pat on my head. My mother, the usually more feisty parent, disagreed at first but eventually thought pacifying was best. “Just make sure you tell us if someone treats you badly.”
I never did, nor would. A few weeks later when an older white boy at school insisted that I ate cats and should go back home to China, I pretended not to understand what he had said—even though I probably had the exact English words to tell him that China was really not my home. Instead, I pretended not to comprehend. English, after all, was just my second language. I was only starting to learn it.
Because representations of Asian-American and Pacific Islanders are so scant in popular culture and media, I always notice and fixate when there’s an Asian character in film or television or when news items focus on Asian-American experiences in some way. (I do this similarly with queer representations too.) In the last several weeks, I’ve never seen more media and cultural focus on the AAPI community. And I’ve been consuming as much of it as I can find—reading, watching, listening between my online Zoom classes for my law school and office hours; while waiting for responses to an article submission on Scholastica; between conference calls with colleagues during this socially-distanced time. It’s profoundly sad, however, that all of the focus stem not from something positive, but from, first, the horrific shooting at three Asian-owned Atlanta spas by 21-year old Robert Aaron Long, and then more broadly, from the 149% rise in hate incidents against AAPI individuals since the pandemic started. Now it’s the continuing incidents of anti-Asian violence being reported on the news. This week, the video from Manhattan of sixty-five year-old, Vilma Kari, who was beaten outside a luxury apartment complex while the complex’s security guards and workers ignoring the whole situation is just another example of this alarming trend.
On the whole, two-thirds of such hate incidents have occurred against women of Asian descent. Many have connected both the Atlanta shootings, in which 6 of the 8 victims were Asian-American women, and this rising trend of hate and violence directly to the Asian scapegoating and spreading of anti-Asian sentiments during the pandemic—particularly the racist “China-virus” rhetoric widely perpetuated by Donald Trump and his supporters. Two weeks ago, Asian-American congressional legislators reignited urgency to pass the COVID-19 Hate Crimes Act, and the House held a three-hour hearing on anti-Asian hate and xenophobia, the first time for such a hearing in decades. Yesterday, the White House revealed a half-dozen new actions to respond to these increasing recent attacks and harassment on AAPI individuals and communities. Protests and demonstrates have taken place across the country. It’s been incredibly profound to witness all of this. In thinking about the recent shootings more specifically, I know that Atlanta, Georgia is thousands of miles away from where I am currently in Southern California, but the Asian-American experience is also one that tracks across coasts and connects my family’s lived experiences with these incidents in some broader historical context. We metabolize media news so quickly these days, but for one moment, it seems like we are lingering to acknowledge that the lived experiences of Asian-Americans matter.
My hope is that the loved ones and families of the 8 victims in Atlanta will find healing and peace. And for the sake of the victims’ memories, I also hope that the incident is ultimately understood as being more complex than the reverberations of someone’s “bad day” and that the cultural scapegoating we place on people of color are called out for its deadly perniciousness. The racist rhetoric disseminated during this pandemic and the sexualization of Asian women are both part of the same systemic, marginalizing stroke that the dominant status quo, motivated by white supremacy, has exerted continually against Asian-Americans to “other” us—to keep us wearing the perpetual foreigner hat on our heads. In response, we Asian-Americans have often resorted to “keeping our heads down” and being model citizens, so that they can’t get us or maybe they’ll move onto someone else. Out of caution, we let the racial narrative take its Black-versus-white binary and stay out of harm’s way. Or else, tag, you’re it. The easiest thing is to pick up an Anglo first name; it’s admittedly harder to lose the accent, but not impossible if you try. You just have to have an ear for it. And when they do go after you, just be quiet. Pretend you didn’t hear them; pretend English is a foreign language. Feign ignorance. But know that if you force yourself to stay quiet too long, they’ll put a narrative on you, too—they’ll fill in their version of you in the blanks. Or put words in your mouth and tell you to perform. Usually for their advantage. You’ll be the good perpetual foreigner. You’re the smart Asian. The dependable one. Harmless. The emasculated male. Fu-Manchu. The submissive but hyper-sexualized vamp with a heart of gold. Suzy Wong, Cio-Cio San, Miss Saigon—take your pick. The one with not enough personality for an Ivy League education. Math nerd. Invisible. The good POC. The model. Crazy rich and also crazy poor. Yellow Peril. The Virus. Very easily our lived experiences are erased, replaced with convenient cultural scripts.
So the surprise that Asian-Americans have suffered within the larger racial discord in this country is unfortunate. The rest of the country is waking up to something that’s always been there for us. I got good enough trying to “be American” that a law school classmate later said to me, “But Jerry, you’re not like those Asians.” So good, so invisible that years later when I was employed at a predominately white place of work, a co-worker lamented during a group diversity training session that the problem with race at our workplace was that “We didn’t have any people of color.” I pretended not to have heard that. Later when another colleague approached me about it, asking whether I had felt marginalized, I lied to her, saying that I hadn’t been paying attention. A white lie to a white colleague, because my instinct was to not rock the boat. Last summer, when I was trying to convey to the dean of my law school that I was hesitant to fly back to the Northeast if the university reverted to in-person teaching, I stuck to the public health script rather than bring up my fears of safety as an Asian-American living alone in New England, away from family and community. Have you seen the videos of people like me being taunted in the subway? Being blamed for the virus? Being told to go back home to China? I felt too ashamed to go there, even though I knew my dean would have understood. It wouldn’t matter anyway, I thought then. I’ll just keep my head down and nothing will happen. Naïve thinking.
The reluctance of law enforcement to see anti-Asian racism in the Atlanta shootings is another attempt to fill in the blanks for us—the plausible deniability that comes from deliberately not seeing color. But the lived experiences of AAPIs do matter. We are not your model minority one second and then invisible the next. The moment for AAPI individuals to be interpreters of this tragedy and this bias is now upon us. We know that language well. This time, I hope we won’t be silenced.
Tuesday, March 30, 2021
On World Health Day, April 7, from 12:10 – 1:30 pm., Northeastern Law School’s Program on Human Rights and the Global Economic (PHRGE) and the Center for Health Law and Policy will host a special Roundtable program honoring the life and work of Mariah McGill, NUSL '09. Mariah, who had served as PHRGE’s Assistant Director, was fatally struck by a car on October 26, 2020. At the time of the accident, Mariah was a regional coordinator at Building Bright Futures in Williston, VT, and a senior fellow of PHRGE.
Mariah was passionate supporter of the human right to health, as reflected in her writings and activism. On April 7, Roundtable speakers will present their work and discuss the connection to Mariah's research and efforts. In this way, the event will build on Mariah's legacy and commitment to health equity and human rights.
Speakers include Professor Martha Davis (NUSL), Professor Gillian MacNaughton (UMass Boston), Esther Kamau (UMass Boston), and Dr. Anja Rudiger (Partners for Dignity and Rights). More information and program registration is available here.
Monday, March 29, 2021
Nancy Kelehar, 20 Years of Detention: Decision Time for Biden on Guantanamo Bay, Human Rights Pulse (March 22, 2021). An excerpt:
"As we approach the 20th anniversary since almost 3,000 people lost their lives in the 9/11 attacks, the 19 years of human rights abuses and crimes under international law committed at Guantánamo Bay should be recognised and ended..."
Sunday, March 28, 2021
The Legal Interviewing and Language Access videos produced by Professors Laila Hlass of Tulane University Law School and Lindsay Harris of UDC David A. Clarke School of Law are a terrific resource for law professors teaching interviewing, especially in the context of interviewing survivors of trauma and using interpreters in interviews.
I have been assigning these videos each semester to my Human Rights at Home Litigation Clinic students at St. Louis University School of Law as part of a unit on interviewing. All of our clients are survivors of trauma and we often use interpreters in our interviews. My students also always interview in teams. My students tell me that they often go back and watch the videos again and again to help them prepare for interviews. They also often specifically mention these videos in their midsemester and final evaluations. Here are a couple of examples from student evaluations:
"The videos emphasized for me the importance of being prepared for the client interview, planning with my clinic partner regarding who will ask which questions and who will take notes, having a clear plan regarding next steps so the client knows what to expect, and being conscientious of cultural differences and implicit biases. I am using all of this information as I prepare for my client interview, especially as my clinic partner and I plan the division of labor for the interview itself. From that class, I now appreciate the impact of effective preparation on client interviews and am aware of how unprofessional we could come across if we’re not well-prepared."
"The class on interviewing was especially helpful in the x matter. We have made many client phone calls and learned the difficulties of using interpreters first hand. The class helped us shape our interview outlines to be less “Yes or No” focused, ask more probing questions, be more prepared as a team, and also add more client specific questions. We had a few clients who jumped at the opportunity to tell their story, which also required a lot of active listening. By having one partner take notes and the other conduct the interview, it allowed the interviewing partner to actively listen to what our client is telling us and easily create follow-up questions based on what we are hearing (making the entire experience more like a conversation)."
"I was never really trained on translating. It had never crossed my mind how the using the third-party pronouns could confuse a client and different ways to better serve both the attorney and the client."
You can access the videos through youtube. If you would like the teaching guides, email email@example.com and firstname.lastname@example.org stating your affiliation and planned purpose for the videos. They have also created a short video explaining how you might use their videos.
Wednesday, March 24, 2021
On Monday March 22, 2021, the Evanston, Illinois, City Council approved a $400,000 allocation towards the City's Local Reparations Restorative Housing Program. This is the first government reparations program for African Americans established in the US.
The Evanston Reparations Program will initially make $25,000 homeownership and improvement grants and provide mortgage assistance for Black residents. Eligibility requirements include individuals who have lived in Evanston between 1919 and 1969 or be a direct descendant of an individual harmed by discriminatory housing policies or practices during this time period. Individuals who have lived in Evanston after 1969 and can demonstrate discriminatory housing practices by the City may also be eligible. This program accounts for $400,000 – or 4 percent – of the $10 million in funding designated by the City Council to support local reparations programs and initiatives in Evanston.
A video of the historic City Council meeting in Evanston on Monday is available here.
Tuesday, March 23, 2021
The Yale Law Journal invites submissions on the Law of the Territories, covering the broad range of local, federal, and international issues arising out of and affecting the U.S. territories and their people, for Volume 131’s Special Issue. The deadline for submissions is July 15, 2021. From the Journal's Managing Editors:
The Law of the Territories is an emerging field that explores novel legal questions facing residents of the U.S. territories. More than 3.5 million people—98% of whom are racial or ethnic minorities—live in American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands. They are unable to vote for President and lack voting representation in Congress, even though Congress exercises plenary power over their communities. In the last five years, the Law of the Territories has experienced a resurgence of activity before the Supreme Court not seen since the Insular Cases, a series of controversial decisions from the early 1900s that endorsed the United States’s annexation and governance of its colonies. The Court’s holdings in the Insular Cases have received broad criticism for their racist underpinnings and departure from foundational constitutional principles. But the Court has hesitated to either overrule them or fundamentally reconsider its territorial jurisprudence. Meanwhile, each of the territories has developed its own distinct body of law—and the people of the territories have pressed with increasing urgency for self-determination and decolonization through both domestic and international processes.
We seek Articles and Essays that address unresolved debates, emerging controversies, and unexplored problems related to the Law of the Territories, including, but not limited to:
- the relationship between federalism and empire;
- the challenge of cultural accommodation within the United States’s constitutional framework;
- the relevance of international models of association to the debate over territorial decolonization, and more broadly, the light that comparative perspectives might shed on the issues surrounding self-determination;
- the intersection of race, gender, and class inequality in the context of U.S. colonial governance;
- and the promises and pitfalls of territorial autonomy.
Monday, March 22, 2021
JoAnn Kamuf Ward and Jamil Dakwar, Is there a New Era For Human Rights on the Horizon? What We Can Learn from the Biden-Harris Administration’s First UN Appearance, Just Security (March 19, 2021), https://www.justsecurity.org/75429/is-there-a-new-era-for-human-rights-on-the-horizon/
"It’s been a busy week for the Biden-Harris administration on the global stage. On Tuesday, Vice President Kamala Harris made the first official administration statement to the United Nations, speaking at the annual U.N. Commission on the Status of Women to underscore U.S. commitments to democracy and gender equality. Wednesday morning, the new administration made its first formal appearance at the U.N. Human Rights Council, as part of a review of the U.S. human rights record, known as the Universal Periodic Review, or UPR. This appearance was followed by an unprecedented racial justice event, co-sponsored by the U.S. Mission in Geneva and featuring prominent racial justice advocates, including Black Lives Matter founder Opal Tometi and Gay MacDougall, the current U.S. nominee to the U.N. Committee on the Elimination of All Forms of Racial Discrimination.
...This week’s UPR appearance is significant because the Biden-Harris administration is representing the United States to articulate which of the recommendations the government is committed to implementing, which recommendations it will reject, and why."
Sunday, March 21, 2021
The Inter-American Commission on Human Rights (IACHR) is in the middle of its 179th Period of Sessions, which is being held again in an all-virtual format. While there are no hearings scheduled this week focusing solely on the US, of interest may be the hearing on "Internet content moderation and freedom of expression in the Americas" scheduled for Thursday March 25, 2021, from 2-3:30pm ET. This hearing was called by the IACHR on its own initiative (an ex officio hearing).
To register to watch the virtual hearing on Internet Content Moderation, visit: https://cidh-org.zoom.us/j/85942567179?pwd=SWY1cTVTOUp6MmhyTjR6bFNPZTV1Zz09
Wednesday, March 17, 2021
New Article: Family in the Balance: Barton v. Barr and the Systematic Violation of the Right to Family Life in U.S. Immigration Enforcement
David Baluarte, Family in the Balance: Barton v. Barr and the Systematic Violation of the Right to Family Life in U.S. Immigration Enforcement, 27 Wm. & Mary J. Women & L. 33 (2020). Abstract below.
The United States systematically violates the international human right to family life in its system of removal of noncitizens. Cancellation of removal provides a means for noncitizens to challenge their removal based on family ties in the United States, but Congress has placed draconian limits on the discretion of immigration courts to cancel removal where noncitizens have committed certain crimes. The recently issued U.S. Supreme Court decision in Barton v. Barr illustrates the troubling trend of affording less discretion for immigration courts to balance family life in removal decisions that involve underlying criminal conduct. At issue was the “stop-time rule” for measuring the requisite seven years of continuous residence for LPR cancellation of removal. A sharply divided court read the relevant statute very differently, and a five-justice majority interpreted the stop-time rule to further limit the discretion of immigration judges to consider noncitizens’ family ties as a defense against removal. However, modern international law doctrine suggests that customary international law is the law of the United States and should be applied to resolve questions of statutory meaning under the Charming Betsy rule of statutory interpretation. This Article lays plain the systematic nature of the violations of the human right to family life in the U.S. system of removal and argues that the U.S. Supreme Court erred when it failed to mitigate this harm in Barton v. Barr.
Tuesday, March 16, 2021
The US response to the UPR Recommendations issued by the UN Human Rights Council was posted by the OHCHR last week. The US response makes reference to some of the positive actions that the Biden administration has taken regarding human rights since the new president's inauguration in January, including depositing the instrument to rejoin the Paris Agreement on climate change, efforts to reengage with the UN Human Rights Council, and more.
It is wonderful to see that the new administration supports recommendations to ratify the Convention on the Rights of the Child (CRC), especially given that the US is the only UN Member nation that has not ratified the CRC. However, it's disheartening to see the US refuse to support recommendations to end sentencing juvenile offenders to life without parole. The US response notes that "[j]uveniles may receive only non-mandatory life sentences and only for particularly severe homicide offenses when warranted in a particular case. These sentences are intended to be rare and are subject to review on appeal."
Whereas the US couched its response to the recommendations to abolish the death penalty with statements such as "President Biden supports legislatively ending the death penalty at the federal level and incentivizing states to follow the federal government’s example," there was no indication of any support for ending the practice of sentencing juveniles to life without parole. This is very disappointing for those of us working with clients sentenced to life without parole as juveniles.
For the past year, my clinic students and I have been representing offenders in Missouri who were sentenced to life without parole as juveniles for the purposes of parole hearings. After legislation was enacted and a lawsuit filed by the Macarthur Justice Center, juveniles sentenced to life without parole in Missouri have been given a chance at release for the first time ever. Under the new legislation and court orders obtained by the Macarthur Justice Center, the Missouri Board of Probation and Parole has to consider mitigation factors in its decision whether or not to grant parole, including the client’s: age, maturity, intellectual capacity, and mental and emotional health and development at the time of the offense; family, home and community environment; familial or peer pressure; characteristics attributable to youth on judgment; and more. The first juvenile life without parole hearings under the new legislation and court orders began last summer and continue today. Under the new process, the juvenile parole hearings have gone from an 86% denial rate to a 100% grant rate. While this is good news, children in the US deserve so much better than spending more than thirty years in a cage without hope.
Article 37 of the Convention on the Rights of the Child requires that the arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time. Moreover, Article 40 of the convention states that every child alleged as, accused of or recognized as having infringed criminal law should always be treated in a manner consistent with the promotion of the child’s sense of dignity and worth. Science supports this approach. Research shows that more than 90% of all juvenile offenders desist from crime by their mid-20s and predicting future violence from adolescent criminal behavior, even serious criminal behavior, is unreliable and prone to error. Even the U.S. Supreme Court has noted that personality traits of adolescents are less fixed than in adults, and this makes it difficult to infer that even heinous criminal behavior during adolescence is evidence of an “irretrievably depraved” character. Moreover, the Court has also noted that adolescents are better candidates for rehabilitation because of their ability to grow and mature.
Our juvenile life without parole clients are amazing. They are working on college degrees, volunteering thousands of hours to restorative justice programs and puppies for parole, helping friends through crises, and holding the hands of friends as they pass away from COVID in prison. One of our clients was released last month after 30 years in prison and he is thriving. Others are still waiting for release. In the meantime, they dream of driving a car, owning a food truck, flying on an airplane, having children, seeing the new ferris wheel in St. Louis, eating Kentucky Fried Chicken, and more.
In 2019, the UN Committee on the Rights of the Child released General Comment 24 on children's rights in the justice system. The Committee recognized the need for a new comment as a "result of the promulgation of international and regional standards, the Committee’s jurisprudence, new knowledge about child and adolescent development, and evidence of effective practices, including those relating to restorative justice." In General Comment 24, the Committee recommended strictly limiting the deprivation of liberty for children only as a last resort. The US is far, far from that wonderful vision for juvenile justice. But, at least the Biden administration could move the US in the right direction by supporting recommendations to end juvenile life without parole sentences.
Monday, March 15, 2021
Event: Reparation for Gross Violations of International Human Rights Law and Grave Breaches of International Humanitarian Law
On Wednesday March 17, 2021, from 9am-3:15pm ET, a virtual conference will take place on reparation for gross violations of international human rights law and grave breaches of international humanitarian law. Experts in international law on two panels will discuss the right to reparation under international law. This conference is co-hosed by the Center for Human Rights & Humanitarian Law at American University Washington College of Law, Geneva Academy, Robert F. Kennedy Human Rights, and the International Law Students Association.
For more information and to register, please visit https://www.wcl.american.edu/news-events/events/detail/9196/.