Human Rights at Home Blog

Spray for Relief

In Fall 2024, the Human Rights at Home Law Profs Blog is excited to feature a series of blog posts focusing on human rights and the environment written by students in the International Human Rights Clinic at UIC Law. This is the fourth post in that series. The first post can be accessed here. The second post is here. The third post is here.

By Eric Mikucki, 2L at UIC Law

In May 2024, the U.S. State Department accused Russian forces of using chemical weapons, chloropicrin tear gas, in its illegal invasion of Ukraine. This public statement was followed by the imposition of sanctions against the Russian government. The use of chemical weapons in wartime has been banned internationally by the Chemical Weapons Convention.

Prohibition in War and Domestic Use

The United States specifically alleged that Russian forces deployed chloropicrin tear gas in Ukraine. Despite clear condemnation from the United States, it regularly uses tear gas and considers its use legal when directed at U.S. civilians during times of protest or alleged civil unrest. The United States justifies the use of chemical weapons against civilians as a necessary tool for crowd control, meant to incapacitate crowds that have been deemed violent or unlawful. In practice, however, this justification by the United States is often unsupported as law enforcement often use chemical weapons with excessive and disproportionate force against crowds of protestors, often adding to the chaos if not creating it to begin with.

The methods of tear gas dispersal are generally indiscriminate and uncontrollable, resulting in civilian casualties. For example, a Philadelphia protester, Amira Chowdhury, explained that she “felt like I was choking to death” and “couldn’t breathe.” Amira suffered bruises as people scrambled over her to escape. She was victimized again later that evening as police deployed tear gas on protestors in her neighborhood and it seeped into her home. She stated “I can’t even be in my own house without escaping the violence of the state.” Others, such as a mother and her toddler, Gracie, who were not part of any protest were made victims as the gas deployed drifted past their car on their drive home. This use of chemical weapons by U.S. law enforcement presents a great danger to the peoples’ right to peacefully assemble and from unjust punishment.

Finally, allowing domestic production of chemical weapons has enabled their use in war despite their explicit prohibition under the Chemical Weapons Convention. The goal of the Chemical Weapons Convention is to eliminate the entire category of weapons of mass destruction. As such, the Convention demands that the United States “takes necessary steps to enforce that prohibition in respect of persons (natural or legal) within their jurisdiction.” The United States has clearly failed to do so as it produces tear gas that is found in warzones globally and U.S. law enforcement continue their abuse of civilians’ rights with the use of these chemical weapons.

Negative Impacts of Exposure

The immediate negative health impacts of tear gas are known to result in the irritation of the eyes and lungs, difficulty or inability to breathe, and loss of vision, among others. However, these effects have long-term impacts, and may result in more permanent harm on human health. Long-term impacts on vision include the development of glaucoma, eye scarring, and cataracts, and breathing problems, such as asthma, are also a concern. Extended exposure to these chemicals range from twenty to forty-two weeks, consistently show increased mortality among tested populations of lab animals. Extended human exposure is more likely to result in severe injuries, which includes permanent disability, requiring professional medical management, or even death. Further, different variants of tear gases are more likely to cause genetic mutation and other long-term health problems.

The adverse impacts on human health do not end with direct exposure alone (when sprayed or particles make contact with the person) as these gases linger in the environment after being dispersed. U.S. law enforcement makes use of tear gas that can stick to surfaces for several days, increasing the risk of exposure to people and the environment well after use. Chemicals used in tear gas often collect in groundwater and coat surfaces near where they are dispersed, leading to future contacts with people, animals, and the environment as a whole. Environments exposed to these chemicals often suffer from decreases in biodiversity, specifically the loss of animal populations in the areas affected. As the environment degrades, and biodiversity is lost, it is shown to increase the occurrence of disease as well as other negative impacts on human life in an indiscriminate manner. This impact on the environment violates peoples’ right to life, health, and adequate standards of living as it prohibits the full enjoyment of said rights. Exemplified by the contamination of the Willamette River in Portland, Oregon, Anna Feigenburg, PhD, explains that “tear gas contaminates agriculture and groundwater,” and has resulted in the poisoning of food and animals, “often causing them serious injury or death.”

Conclusion

As such, the United States’ use of chemical weapons via deployment of tear gasses and other substances is a clear violation of human rights. The United States’ use of chemical weapons against protestors violates the right against unjust punishment, and the right to peaceful assembly, life, health, and a healthy environment.

Environmental Defenders Under Threat: A New Digital Tool for Accountability under the Escazú Agreement

In Fall 2024, the Human Rights at Home Law Profs Blog is excited to feature a series of blog posts focusing on human rights and the environment written by students in the International Human Rights Clinic at UIC Law. This is the third post in that series. The first post in the series can be accessed here. The second post can be accessed here.

By Amanda Chavez, 2L at UIC Law

As environmental defenders face increasing threats, a new online platform launched by the Economic Commission for Latin America and the Caribbean (ECLAC) has been created in support of the Escazú Agreement (the Agreement), formally known as the Regional Agreement on Access to Information, Public Participation, and Justice in Environmental Matters in Latin America and the Caribbean. The website is designed to report a range of violations related to the protection of environmental defenders. Communications submitted on the platform will be directed to the Implementation and Compliance Support Committee (Compliance Committee), further strengthening its advocacy for greater accountability in the protection of environmental rights defenders. As a key body of the Conference of the Parties (COP) under the Escazú Agreement, the Compliance Committee plays a vital role in monitoring state compliance and offering support to ensure the rights of environmental defenders are protected in practice. While the website enhances the advocacy of the Committee, its effectiveness relies on collective efforts to report violations against environmental defenders and clear guidelines regarding the actions taken when offenses to the Agreement are reported.

Understanding the Escazú Agreement

Environmental human rights advocates in the Americas face constant and often deadly attacks. Latin America and the Caribbean have consistently ranked as the world’s most dangerous region for environmental defenders. From 2012 to 2022, 88% of murders of environmental defenders took place in the region, with nearly 1,910 deaths recorded. Advocates from all over the region face criminalization, intimidation, smear campaigns, lack of protection, and lack of access to justice. In 2022, Mexico had the highest number of environmental defenders murdered, with 40% of the victims being Indigenous. Many environmental defenders in Colombia, Brazil, and Guatemala reported experiences of violence and displacement. 

The Escazú Agreement is a treaty aimed at protecting environmental human rights. It focuses on three key pillars: the right to information, public participation in environmental decisions, and access to justice. It includes provisions aimed at protecting environmental defenders who have faced rising violence and threats standing up against environmental degradation, corporate exploitation, and governmental inaction. The Agreement aims at addressing the needs of vulnerable environmental human rights defenders and promoting sustainable development by protecting access and procedural rights in the context of environmental and human rights. One such protection is Indigenous peoples' right to Free, Prior and Informed Consent before a State takes action that may affect them. The treaty was adopted in 2018 and entered into force as a binding instrument of law in April 2021. As of September 2024, there are twenty-four state parties with sixteen states having ratified the treaty. 

Recent Developments in the Compliance Committee

Despite the significant strides made by the Escazú Agreement in addressing the rights of environmental defenders and the need for greater participation, there remain considerable gaps in its enforcement and practical application. The lack of clear mechanisms for accountability and monitoring creates significant implementation barriers for the Agreement’s key provisions. This is where the Compliance Committee becomes critical as it adopts a consultative approach and depends on the active participation of member states. During the third meeting of the COP in April 2024 (COP3 Meeting), Anixh de Pablo, an indigenous leader from Guatemala, urged state parties to create mechanisms for participation of environmental defenders and Indigenous people, and a process for evaluating state participation. 

The ECLAC launched a website in September 2024. It was designed as a digital tool for reporting violations of the rights of environmental human rights defenders. It allows individuals, governments, and non-governmental organizations (NGOs) to report and track incidents of violence and threats against environmental activists. With this tool, the Compliance Committee can better identify gaps in implementation and hold member states accountable for failing to protect environmental defenders. Following the filing of reports, the Committee is to report to the COP, including any conclusions made regarding state non-compliance. Sources do not explicitly state what actions the COP takes in response to receiving the Committee’s reports, emphasizing an overall lack of procedural clarity within the Agreement. 

Call to Action

We must amplify the voices of those on the front lines of environmental protection and stand together in demanding that they may do so without fear of violence or persecution. Amnesty International calls on all thirty-three Latin American and Caribbean states to ratify the treaty. It emphasizes the urgent need for states already party to the agreement to uphold its provisions. The Escazú Agreement represents a powerful commitment to environmental justice and the launch of the reporting website is a vital step forward, but it is not enough. It requires collective action to ensure that it is widely used, that the data it generates is acted upon, and that accountability becomes a reality.

Including Ecocide as a Crime of the ICC: Implications in International Human Rights

In Fall 2024, the Human Rights at Home Law Profs Blog is excited to feature a series of blog posts focusing on human rights and the environment written by students in the International Human Rights Clinic at UIC Law. This is the second post in that series. The first post in the series can be accessed here.

By Jacob Baron & Sara Nasif, 3Ls at UIC Law

September 9th, 2024 marked a pivotal moment in the purview of environmental justice: Ecocide was formally introduced to the International Criminal Court (ICC) for consideration as a punishable crime, a pivotal act that paves the way for environmental destruction to be recognized under international criminal law. The proposal aims to amend the Rome Statute to include Ecocide as the fifth ever international crime under the statute, joining the  preexisting crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. This proposal to the Assembly of States Parties to the Rome Statue formally made by Vanuatu, Fiji, and Samoa, three developing countries that advocated to create a means of prosecuting heads of State, leaders of polluting companies, and other powerful entities who have brought about environmental destruction. As such, the inclusion of Ecocide as a crime of the International Criminal Court is critical because it holds those in positions of power to the highest level of accountability for actions that have led and can lead to environmental harm. By recognizing Ecocide as the fifth international crime, ICC acknowledges that reckless environmental destruction is a serious offence and not a collateral—it is a crime and clarifies international obligations regarding rights impacted by environmental harm thus elevating environmental protections.

The Rome Statute outlines the governing framework for the ICC, defines crimes that fall within its jurisdiction, and provides rules for procedural mechanisms and State cooperation. States that have accepted these rules are colloquially referred to as “State Parties” and are represented in an Assembly of States Parties. A primary objective of the ICC is to prosecute the most serious crimes of international concern and enforce legal consequences by holding individuals accountable. Currently, the ICC prosecutes only the four aforementioned crimes under the Rome Statute. Through adding ecocide as a fifth, the ICC could both prosecute individuals for significant environmental destruction and establish a deterrent effect, encouraging greater degrees of responsibility toward the environment through clear and concise amendments.

Per these proposed amendments to the Rome Statute, the legal definition of ecocide is as follows: “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” In this context, the term “wanton” means a reckless disregard for damage clearly excessive in relation to anticipated social and economic benefits. The word “severe” refers to damage involving serious adverse change, disruption, or harm to any element of the environment. “Widespread” refers to damage that extends beyond a limited geographic area and crosses State boundaries, and “long-term” signifies irreversible damage that cannot be naturally redressed within a reasonable amount of time. Under this same definition, the term "environment" has also been clarified to include the earth’s biosphere, cryosphere, lithosphere, hydrosphere, atmosphere, and outer space.  

Under this definition, ecocide as a punishable offence would not implicate “ordinary” people, because “ordinary” people are not responsible for mass degradation of the natural world. Rather, it holds criminally liable only those with decision-making capabilities at the top levels of industry and government. Only when those with power fail to adhere to existing environmental regulations, or knowingly act without regard to detrimental environmental effects, does the environment face a substantial likelihood of “severe,” “widespread,” or “long-term” damage. Typical civilians simply do not possess the resources to pose comparable ecological threats.

Criminalizing ecocide is not a novel idea by Pacific Island countries. Rather, several States have declared explicit support for ecocide as a crime at the international level. Many of these States and more have enacted and proposed legislation criminalizing ecocide at the domestic level, as well. According to a recent survey of G20 countries, support for criminalizing ecocide is not simply institutional, either. 72% of civilians agree that “approving or permitting actions which cause serious damage to nature and the climate should be a criminal offense.” With growing State support, and nearly 3 out of four people supporting the criminalization of ecocide, there exists an undeniable international demand for environmental accountability that does not currently exist.

Until a global system of accountability is enacted, those in power will continue to abuse their positions for the benefit of themselves, and to the detriment of the planet from which they function. Efforts of Fiji, and Samoa to include ecocide among punishable offences under the ICC is a crucial step in the right direction. Only through criminalizing ecocide might those in power be legitimately dissuaded from contributing to environmental degradation.

Special Rapporteur on the right to adequate housing: Call for Inputs on the right to adequate housing for people on the move

The Special Rapporteur on the right to adequate housing, Mr. Balakrishnan Rajagopal, has also decided to dedicate his next thematic report to the Human Rights Council to the topic: right to adequate housing in the context of human mobility. This includes a focus on the rights and situations of all individuals who have crossed an international border, including migrant workers, refugees, asylum seekers, environmental migrants, smuggled migrants, victims of human trafficking, and international students; as well as their overall impact on the housing system including on affordability and accessibility.

In this regard, the Special Rapporteur has called for written contributions to one or more of the following questions:

• Please flag important or emblematic regional and national standards and policies for the housing of migrants, including those related to accommodation, reception, shelter, etc. (1 page max)
• Are there any emblematic challenges to the enjoyment of adequate housing by one or more of the above-mentioned groups of migrants and refugees or other vulnerable groups among them (e.g., women, children, older persons, persons with disabilities, minorities, LGBTQIA+, etc.) that you would like to highlight? These challenges include security of tenure, affordability, availability, accessibility, habitability, location and cultural adequacy. Do migrants and refugees experience discrimination or live in segregated areas? Please kindly explain the issue and provide any relevant background information, including related legal, policy or administrative barriers experienced. (1 page max)
• Are there any successful practices or models that have been implemented to improve housing access and/or conditions for these groups of migrants and refugees? Please provide detailed information, including any relevant legislative, policy, administrative or financial support solutions that made them possible. (1 page max)
• In what ways does human mobility influence the access/availability of housing, access to services, community safety perception, and overall quality of life for local residents? Are migrants and refugees being scapegoated for existing housing crises, despite these crises being rooted in other dynamics? Has human mobility posed challenges to the right to adequate housing and associated services for local residents, or alternatively brought unexpected benefits? Kindly explain and provide relevant factual, policy or other relevant information. (1 page max)

This report will be presented to the Human Rights Council in March 2025. If you wish to send any inputs, please do so by November 8, 2024, by sending an email to [email protected] and [email protected] copying [email protected].

Event 11/20: OHCHR Webinar on human rights of people on the move

The OHCHR and Global Strategic Litigation Council for Refugee Rights are organizing two webinars discussing how to effectively utilize U.N. Treaty Bodies to advance human rights of people on the move. These webinars with explore litigation opportunities within the U.N. human rights treaty bodies, including an overview of how to effectively use their individual communication procedures, as well as a showcase of key jurisprudence on non-refoulment and other human rights protections against return. If interested, please register by November 6, 2024.

Session for U.S., Latin America, and Europe will be hosted on November 20, 2024, at 10:30 EST, and can be registered for here.

A Beginning Point for Communicating about the Mid-East War

By Prof. Margaret Drew, UMass Law School

Local artists David Guadalupe and Brian Tillett recently completed a mural in a downtown New Bedford, MA park.  Let the discussions begin here.

Uniting for the Planet: Environmental Promises of the United Nations Pact for the Future

In Fall 2024, the Human Rights at Home Law Profs Blog is excited to feature a series of blog posts focusing on human rights and the environment written by students in the International Human Rights Clinic at UIC Law. This is the first post in that series.

By Skylar Nafziger, 3L at UIC Law

With the world failing to keep up with the rapid degradation of the environment, the adoption of the Pact for the Future provided a critical opportunity for world leaders to reimagine the course of action taken to restore the environment for the future of humankind, and for the future of the environment itself.  The Pact was adopted by UN Member States at the UN Summit of the Future that took place on September 22 and 23, 2024, at the United Nations Headquarters in New York City.

The United Nations describes the Pact for the Future as “[a]n inter-governmentally negotiated, action-oriented”  formal agreement between Member States. The Pact contains a compilation of chapters addressing sustainable development and financing for development; international peace and security; science, technology and innovation and digital cooperation; youth and future generations; and transforming global governance.

The Pact for the Future recognizes that there cannot be a better future for humankind on this planet without also creating a better future for the planet itself. With that, the environmental issues the Pact for the Future seeks to rectify are climate change, global warming, sea level rise, biodiversity loss, pollution, water scarcity, food insecurity, floods, desecration, land degradation, deforestation, plastic pollution, and greenhouse gas emissions. The Pact for the Future makes it clear that many of these issues have already been addressed through past agreements between Member States, meaning that they must fulfill their existing responsibilities while also tackling new issues arising from the currently state of environmental emergency. Additionally, the adverse impacts of climate change on developing countries that are particularly vulnerable are at the forefront of the issues the Member States must address following the adoption of the Pact for the Future.

Each chapter of the Pact for the Future is comprised of Actions that Member States are expected to take to combat each issue. The chapter on Substantial Development and Financing for Development recognizes that current “environmental challenges pose serious risks to our natural environment and our prospects for development,” and provides two specific Actions that Member States must take to thwart such risks. Action 9 of the Pact for the Future indicates that Member States will “strengthen [their] actions to address climate change.” In doing so, the Pact for the Future reaffirmed the goals of the United Nations Framework Convention of Climate Change and the Paris Agreement to transition away from fossil fuels in a “just, orderly and equitable manner. Action 10 more broadly states that Member States “will accelerate [their] efforts to restore, protect, conserve and sustainably use the environment.” These efforts include reversing trends of environmental degradation, improving the use of the ocean and its ecosystems, promoting sustainable consumption and production, addressing pollution of the air, land, soil, and water, halting and reversing biodiversity loss, and “strengthen[ing] international cooperation on the environment by implementing and complying with multilateral environmental agreements.”

If member states succeed in following through with the agreed actions of the Pact for the Future, then we can anticipate seeing a net zero emission energy system by 2050, a global average annual rate of energy efficiency improvements by 2030, halted and reversed deforestation and forest degradation by 2030, implementation of the Early Warning for All hazard warning system by 2027, and completed negotiations of a legally binding instrument on plastic pollution by the end of 2024.

Although the Pact for the Future provides what States will be expected to accomplish following its adoption, it lacks substance as to how States will do so—further yielding the question: How can States be expected to take additional action to address new issues when they are already failing to comply with their obligations concerning the protection of the environment under preexisting agreements?

While the right to a healthy environment was only officially recognized more recently by the General Assembly in its July 28, 2022, Resolution 76/300, an extensive list of rights already widely recognized are violated because of the degrading environment. For example, under Article 6 of the International Covenant on Civil and Political Rights (ICCPR), “[e]very human being has the inherent right to life.” In General Comment No. 36, the Human Rights Committee further acknowledged that “[e]nvironmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.” Additionally, the Committee on the Rights of the Child specifically acknowledged in General Comment No. 26 that “[c]hildren have the right to a clean, healthy and sustainable environment.”

That being said, the fact that world leaders were able to come together and adopt the Pact for the Future in the first place allows members of society to be optimistic that States’ environmental actions will progress. The Pact for the Future reaffirms Member States’ commitments and obliges them to take expeditious action to better the world for the generations to come. However, because the environment is currently in a vulnerable state, there will be no future without immediate action. It is the responsibility of States to develop and follow through with the necessary action required to achieve the goals they collectively established in the Pact for the Future. Adopting the Pact for the Future constitutes a singular step in restoring the environment, leaving the States with much more left to be done.

Event 12/2-12/6: UN Working Group of Experts on People of African Descent 35th Session

The Working Group of Experts on People of African Descent has announced its public session on reparatory justice for Africans and people African descent, which will be held at the United Nations Headquarters in New York, December 2 – 6, 2024.

While there have been sporadic, and increasingly more concrete reparatory initiatives, in several countries, they fall far short of a comprehensive, proportionate response – in scope, reach and depth – for the harm done to Africans and people of African descent.  Therefore, presenters and participants will examine the posture and position of key entities instrumental in the enslavement, colonization, and segregation of Africans and people of African descent; discuss their roles, responsibilities, and accountabilities; examine the factual and legal bases for reparations; and put forward a set of common principles, necessary provisions, and possible pathways for a global approach to reparatory justice.

All participants must register in advance before November 27, 2024. Written submissions are welcome and should be submitted by November 2, 2024. The session will be broadcast live and archived at this link.

More information regarding the session, registration, and call for written submissions can be found here.

In Punishing Homelessness, the U.S. Abandons Human Rights

By: Tamar Ezer, Associate Director & Abigail Wettstein, Fellow, Human Rights Clinic, University of Miami School of Law

Everyone needs a safe place to sleep. Yet, as of June 28, 2024, you can face sanctions simply for sleeping in public.

This summer, the Supreme Court overruled Ninth Circuit precedent and took a giant step backwards from human rights norms. In Grants Pass v. Johnson, the Supreme Court held that laws punishing sleeping in public do not violate the Constitution’s prohibition against cruel and unusual punishment, even when no safe and accessible shelters are available.

Justice Gorsuch, delivering the majority opinion, argued that laws prohibiting sleeping outdoors punished conduct, not status and were thus constitutional. But what do you do if you are unhoused and have nowhere to go?

As Justice Sotomayor recognized in the dissent, “Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option.” Arresting and fining “people with no access to shelter,” in fact, “punishes them for being homeless.” The majority’s decision thus “leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.” According to Justice Sotomayor, “That is unconscionable and un­constitutional.”

It is also contrary to international human rights law. Human rights bodies have consistently found that punishing homelessness and involuntary acts of survival constitutes cruel, inhuman, and degrading treatment, as set out in the amicus brief by the U.N. Special Rapporteur on the Right to Adequate Housing and the U.N. Special Rapporteur on Extreme Poverty and Human Rights, which our Human Rights Clinic had the privilege of supporting. Criminalizing life-sustaining activities further violates the rights to liberty and security of person, life, freedom of movement, and equality and non-discrimination.

In its recent review, the U.N. Human Rights Committee specifically called upon the United States to:

(a) Abolish laws and policies criminalizing homelessness at all levels, and adopt legislative and other measures that protect the human rights of homeless people;

(b) Offer financial and legal incentives to decriminalize homelessness, including by conditioning or withdrawing funding from state and local authorities that criminalize homelessness;

(c) Intensify efforts to find solutions for the homeless, in accordance with human rights standards, including by redirecting funding from criminal justice responses towards adequate housing and shelter programmes.

As highlighted in an amicus brief by social science researchers, punishing homelessness serves no penological purpose and is counterproductive. It disrupts access to services, harms people’s health, and results in fines people cannot pay, jail time, and criminal records, further impeding employment and housing. As the U.N. Special Rapporteur on Extreme Poverty and Human Rights noted during a visit to the  U.S., “[U]npayable fines and the stigma of a criminal conviction . . . virtually prevents subsequent employment and access to most housing.”

Ordinances criminalizing homelessness thus effectively criminalize the status of being unhoused, along with the many factors that contribute to homelessness, such as racial disparities, mental health conditions, gender-based violence, and discrimination based on gender identity or sexual orientation.

Moreover, criminalization is expensive. Diverting resources to law enforcement can cost two to three times more than it would to provide affordable housing. When homelessness intersects with mental health conditions, effective responses include supportive housing, community treatment, mobile crisis services, supported employment, and peer support services.

Sadly, here in Florida, the state recently passed HB 1365, modeled on template legislation from the Cicero Institute, which prohibits cities and counties from allowing people to sleep or camp in public spaces or risk legal liability, while not providing any new funding for effective responses. As David Peery, Executive Director of the Miami Coalition to Advance Racial Equity (MCARE) and our partner in this work, stated, “It’s simply making it illegal now to be homeless. And you’re not homeless because of anything you did, you’re homeless because we live in the most expensive housing market in the nation and because the minimum wage is nowhere near enough to afford a living space.”

In her dissent, Justice Sotomayor expresses the hope that “someday in the near future, this Court will play its role in safeguarding constitutional liberties for the most vulnerable among us” and “prohibit punishing the very existence of those without shelter.”

On this World Homelessness Day, we echo this hope and call for a human rights approach to homelessness. This September, the City of Philadelphia introduced a resolution condemning the Grants Pass decision and reaffirming a commitment to housing on a human right. We urge other cities to follow suit and all of us to stand up against this backsliding on critical rights.

Please see additional information and resources at https://johnsonvgrantspass.com/.

Event 10/3: Climate Litigation Virtual Summit: Climate Rights Matters

On October 3, 2024, from 1:00-2:00pm EDT, the ABA Section of Environment, Energy, and Resources will hold a webinar exploring climate litigation. The program will feature panelists Jessica Simor, Melissa Anne Hornbein, Payam Akhavan, and Sophie Marjanac.

In this webinar, climate rights litigators will discuss cases brought around the world in which they assert that international and domestic law imbue people with rights to climate mitigation and adaptation, including in Australia (Daniel Billy and Others v. Australia), Oceania, Switzerland, and international and regional courts (Commission of Small Island States on Climate Change and International Law and Association of Swiss Senior Women for Climate Protection v. Federal Department of the Environment Transport, Energy and Communications and Others). The discussion will feature the cases, strategies, and goals for litigators for future climate rights litigation, as well as highlight and contrast international litigation relative to U.S. cases such as Held v. Montana. Panelists will also discuss the legal frameworks enabling claims of climate rights globally compared with in U.S. law.

Register for the event here. CART services will be available for deaf or hard of hearing attendees.

New Article: Deprivation of Liberty as a Last Resort: Understanding the Children's Rights Law Mandate for Youth Justice

Lauren Meeler, Jonathan Todres, Deprivation of Liberty as a Last Resort: Understanding the Children's Rights Law Mandate for Youth Justice, 60 Stan. J. Int'l L. 1 (2024). Abstract below.

International law is consistent in affirming that the deprivation of liberty should be a “last resort” for children. This norm is affirmed by the extensive evidence that detention is detrimental to the wellbeing and healthy development of young people. Yet while it is broadly understood that detention of children and youth should be uncommon, there is much less clarity around what the “last resort” mandate means in practice—that is, under what circumstances is detention permissible and what, if anything, must states do prior to considering the detention of a young person. Drawing on scholarship on criminal justice and human rights, the work of international treaty bodies, and other human rights sources, this Article explores the meaning of “last resort” under international law, focusing in particular on the use of arrest, detention, and imprisonment in the youth justice context. The Article then proposes a framework for operationalizing the “last resort” mandate so that governments can respond in a more rights-affirming manner to children who are in conflict with the law.

Available at SSRN.

Historic Montana Environmental Rights Case on Appeal In State Supreme Court

By A. Bashar Zaheer, 2L at Saint Louis University School of Law.

On August 14 2023, the First Judicial District Court of Montana in Held v. Montana, found that two Montana laws restricting state action addressing climate change were unconstitutional infringements of the plaintiffs’ right to a clean and healthful environment.

In recent years, environmental groups across the world have asserted the right to a healthy environment as a basic human right, culminating in the 2021 decision by the UN Human Rights Council to enshrine the right to a healthy environment. Additionally, several countries have begun to enshrine these rights in their constitutions, including in India, where the Supreme Court recently found that that the climate crisis was a threat to citizens right to life. In the U.S., efforts to assert environmental rights have often been led by youth groups, arguing that the government has a duty to act now to mitigate climate change, as it represents a present threat to their life and liberty. In Montana, such a right is already enshrined in the state constitution in Article IX, maintaining that the "state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations," as well as Article II, Section 3 which maintains that “All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment…”

In Held, sixteen youth residents of Montana, represented by the non-profit Our Children’s Trust, seek to enforce this constitutional right to challenge a provision of the Montana Environmental Policy Act prohibiting the state from considering greenhouse gas emissions in deciding whether to issue permits for energy projects, as well as a related section of the State Energy Policy. The District Court found that these permitting limitations were in violation of the state constitution, and the defendants have since appealed to the Montana Supreme Court.

This follows a previous similar case, Juliana v. United States, where the Ninth Circuit Court dismissed plaintiff’s attempts to assert that the Federal Governments inaction against climate change violated the constitutional rights of young people. The Juliana case was initially brought by 21 youth plaintiffs, also represented by Our Children’s Trust, against several federal agencies arguing that government inaction regarding climate change threatened their due process rights to life, liberty, and property. Ultimately, the Juliana case was dismissed by a 2-1 vote of the Ninth Circuit, citing a lack of Article III standing, stating that it was beyond the Court’s power provide remedy. In dissent, Judge Staton found instead that the majority was shirking its responsibility to rectify the constitutional wrong brought by the plaintiffs.

Where the Juliana case failed, Held may provide new strategy for legal climate activists in using State Constitutions as a source of environmental human rights. As of 2024, several states have environmental rights enshrined in their constitutions, including Pennsylvania, where in Robinson Township v. Commonwealth, the Pennsylvania Supreme Court used these rights as a basis for declaring bans on local fracking restrictions unconstitutional. Many more states also have movements to establish constitutional rights to a clean environment, and one such movement was successful in amending the New York State Constitution to include the “right to clean air and water, and to a healthful environment,” in 2021.

On July 20, 2024, the Montana Supreme Court heard arguments for the State’s appeal of the decision. While not discounting the reality and effects of climate change, state attorneys argued that the court should avoid the issues at hand as political questions and should focus on the specific permitting decisions discussed and asserted that the plaintiff’s claims are weakened by a lack of a clear remedy. The Montana Supreme Court has not yet released their ruling on the appeal.

While Juliana mostly failed to assert environmental rights on the federal level, environmental rights may be more enforceable on the state level, and it is likely that environmentalist groups will continue to bring more litigation on these grounds in the future.

Read the full District Court verdict for Held v. Montana here.

September-October 2024 Deadlines: Calls for Inputs by Human Rights Mechanisms

The following calls for inputs have been issued by UN Human Rights Mechanisms with deadlines in September-November 2024 and law professors whose practice, research, and/or scholarship touches on these topics may be interested in submission:

Office of the High Commissioner for Human Rights  - Call for inputs to inform the Office’s next thematic report on the rights of persons with disabilities and digital technologies and devices, including assistive technologies. Deadline September 1, 2024. Read more.

Office of the High Commissioner for Human Rights – Call for inputs to inform a comprehensive report on mental health and human rights. Deadline October 4, 2024. Read more. 

Working Group of Experts on People of African Descent – Call for inputs to collection information for the 35^th public session of the Working Group focusing on Principles, Provisions and Pathways to Reparatory Justice for Africans and People of African Descent. Deadline October 7, 2024. Read more. 

Independent Expert on human rights and international solidarity – Call for inputs to inform a report on indigenous peoples and international solidarity. Deadline November 1, 2024. Read more. 

Office of the High Commissioner for Human Rights – Call for inputs to inform a report on combating discrimination, violence and harmful practices against intersex persons. Deadline November 20, 2024. Read more.  

This information was compiled from https://www.ohchr.org/en/calls-for-input-listing.

Subscribe to the Human Rights at Home Law Profs Blog

I know that many of you have lamented that we no longer have the feature that used to automatically send you an email notification for every new blog post. However, we have finally figured out a workaround! You can now have the Human Rights at Home Law Profs Blog automatically delivered to your computer, tablet, or smart phone once again. 

 

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Why we filed a federal complaint over unnecessary and cruel immigration detention at Moshannon Valley

By Vanessa Stine, Senior Staff Attorney, Immigrants’ Rights at ACLU Pennsylvania 

& Sarah Paoletti, Founder and director of the Transnational Legal Clinic at the University of Pennsylvania's Carey Law School

 

This blog post is crossposted with permission from the ACLU of Pennsylvania's Blog

No person should be detained while they await the outcome of their immigration proceedings. Unfortunately, the massive immigration detention machine in the United States means that on any given day, tens of thousands of immigrants are held in ICE detention. 

What’s worse, the conditions in many immigration detention centers are downright horrific. That’s the case in the Moshannon Valley Processing Center in Clearfield County, Pennsylvania, where those in detention have endured insufficient medical and mental health care, grossly inadequate access to non-English language services, and rampant discrimination.

That’s why ACLU-PA teamed up with Legal Services of New Jersey and the University of Pennsylvania, Penn Carey Law Transnational Law Clinic to file a federal complaint with the Department of Homeland Security’s Office for Civil Rights and Civil Liberties over the conditions at Moshannon.  

The complaint includes the detailed accounts of eight participants. One participant describes how he did not receive medical treatment for painful tumors. 

Another participant attempted suicide due to depression and an untreated medical condition that worsened while detained. 

ICE and GEO staff similarly denied medical care to other participants, often bouncing individuals back and forth between ICE and GEO medical staff, each persistently trying to shift responsibility for needed medical care to the other. 

The women participants in the complaint describe how they are particularly vulnerable at Moshannon. They  live in cells surrounded by a majority-male population that they cannot interact with, resulting in limited movement outside of their housing unit. Access to menstrual products is extremely restricted, and preventive medical care, like mammograms, are not accessible.

While these conditions are alarming and disturbing, they are not unique to Moshannon. 

Moshannon is operated by GEO Group, a for-profit corporation that contracts with Immigration and Customs Enforcement (ICE) to manage detention centers across the country. Many of these facilities have been exposed to have similarly horrific conditions as we have found in Moshannon. 

Our complaint asks the department to open a formal investigation and hold GEO Group and ICE accountable for the conditions at Moshannon. 

While ICE detention is cruel, unnecessary, and should not exist, to the extent ICE continues to keep people behind bars, they must do so in a way that adheres to the most basic standards of dignity and rights. 

The department’s Office of Civil Rights and Liberties is charged with investigating civil rights abuses in ICE detention. It is critical that they take a meaningful and robust approach to this investigation, not only because the detailed accounts from the participants illustrate the serious and pervasive issues that exist at Moshannon but also because they are some of the same issues that the Office of Civil Rights and Liberties identified in their June 2023 recommendations regarding Moshannon. 

Despite those recommendations, our complaint is the first time that the public has the full picture of the horrific conditions at Moshannon. That’s because the department does not make their recommendations public where ICE does not not agree with them. This lack of transparency is why our complaint asks the department, at the conclusion of their investigation, to provide a full and public record of the findings and recommendations. 

Our clients in detention have endured unfathomable horrors. As one of our client’s, Jose, shared, “I wouldn’t wish on anyone what I went through at Moshannon because of the conditions there, the way I was treated, and the racism I experienced. Even though I am in ICE detention, I am a human being.” 

ICE detention should not even exist. There is no good reason to keep a person locked up while they navigate the U.S. immigration machine. But while it does, our clients and the thousands of people who are detained everyday by ICE around the country deserve to be treated with dignity and respect.

This blog post is crossposted with permission from the ACLU of Pennsylvania's Blog

IACHR Hearing on Michael Brown's Case and Police Violence in the U.S.

On July 10, 2024 (tomorrow), almost a decade after Michael Brown’s murder at the hands of Ferguson police, the Brown family will appear before the Inter-American Commission of Human Rights (IACHR) for hearing on Brown’s case. Featuring testimony from Brown’s mother, Lezley McSpadden, as well as attorneys and activists from Robert F. Kennedy Human Rights and Howard University’s Thurgood Marshall Civil Rights Center, the hearing will provide an opportunity for public accountability in Brown’s killing. The hearing, which will be conducted virtually and is open to the public, represents the first time in history that the Inter-American Commission will hear an individual case about police violence in the United States.

Following the hearing tomorrow, the IACHR will publish a report outlining their findings on the case and issuing recommendations to the United States government. Representing Ms. McSpadden, RFK Human Rights and Howard University have requested that the IACHR recommend an independent investigation into Brown’s death; a public apology to Brown’s family; and the implementation of key U.S. legislation such as the BREATHE Act and the recently reintroduced Helping Families Heal Act, which would expand mental health services for communities harmed by police violence. A full list of proposed remedies can be found here.

The hearing will be livestreamed on Wednesday, July 10, 2024, at 4:00pm ET. Visit https://www.oas.org/en/iachr/ to watch.

New Article: Advancing Human Rights Education in the United States: A Call for Action in the Public Education System

Conroy, Shannon M., Advancing Human Rights Education in the United States: A Call for Action in the Public Education System, Immigration & Human Rights Law Review: Vol. 5, Iss. 2, Article 4 (2024). Abstract below:

Human rights education is education about, through, and for human rights. In 2004, the United Nations General Assembly implemented the World Programme for Human Rights Education. The World Programme provides global coordination for human rights education and promotes a common understanding of human rights education. Over the last twenty years, the United States failed to implement either federal or state human rights education programs. This article examines the academic and international discussion about human rights education for students in the United States, and argues for the need for stronger human rights education in public primary, secondary, and higher education institutions in this country.

Rahimi: Success for Abuse Survivors

By Margaret Drew, Associate Professor at UMass Law School

On June 21, 2024, the US Supreme Court issued its opinion in the Rahimi case.  Mr. Rahimi, who was subject to a civil protection order, was arrested for possession of firearms as forbidden by 18 U. S. C. §922(g)(8).  The Court, in an 8-1 vote, upheld the statute. “When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.” Only Justice Thomas dissented.

There is a history of governments withholding firearms from those they considered dangerous.  While these laws were often used against classes of people, such as Native Americans and Blacks, the history of government limitations supported the ban.

Not all courts ban the possession of firearms, despite the federal law at issue.  One hope by advocates is that post-Rahimi more states will suspend the possession of guns and ammunition from abusers.  According to the National Coalition Against Domestic Violence, most intimate partner homicides are committed with firearms. In addition, abuser’s access to a gun increases the risk of intimate partner death by 1000%

Mr. Rahimi was hardly a sympathetic litigant.  He had a cache of firearms when he was arrested.  And his arrest was not related to any action toward his former intimate partner.  Mr. Rahimi, it appears, is a generally violent man.

I suspect that future lawsuits will parse the meaning of “temporary” prohibitions.  Even for those states that enter “permanent” restraining orders, typically a hearing mechanism is provided to address whether the restrained party may be exempted from the firearms possession ban.  

Victories for intimate partner violence survivors are rare enough. Let’s take time to rejoice in this decision.

Podcast: From the Frontlines: Reflections on Decades of the Racial Justice Movement

On the May 15, 2024, episode of the Harvard Carr Center’s podcast, Justice Matters, “From the Frontlines: Reflections on Decades of the Racial Justice Movement” co-hosts talk with Prof. Gay McDougall, distinguished scholar in residence at the Leitner Center for International Law and Justice at Fordham University School of Law and member of the UN Committee on the Elimination of Racial Discrimination.

Prof. Mc Dougall discusses her decades of experience in the racial justice movement, as well as the function of the UN Committee on the Elimination of Racial Discrimination, her youth in Jim Crow’s Georgia, her work with Nelson Mandela, George Floyd’s murder, the Biden Administration’s policies concerning race, and the upcoming 2024 US Presidential election.

Access the full episode here.

Housing, Not Punishment to Address Homelessness

By: Tamar Ezer, Acting Director, Human Rights Clinic, University of Miami School of Law

Can you be punished for sleeping? The U.S. Supreme Court is considering this very question in Grants Pass v. Johnson, a seminal case with critical implications for homelessness. The Court is deciding whether the 8^th Amendment’s prohibition on cruel and unusual punishment protects against laws punishing people for sleeping outside when there is no alternative shelter.

An increasing number of U.S. cities have sought to make homelessness invisible by criminalizing and fining activities people experiencing homelessness must engage in stay alive, such as sleeping, eating, or lying down. According to a 2019 survey of 187 cities, 55% have laws prohibiting sitting and or lying down in public; 72% have laws prohibiting camping in public places; and 60% laws prohibiting loitering, loafing, and vagrancy.

However, punishing homelessness is counterproductive. At best, it merely shuffles people to different parts of the city, disrupting social networks. More often, it results in fines people cannot pay, jail time, and criminal records, further impeding access to employment and housing. As the U.N. Special Rapporteur on Extreme Poverty and Human Rights highlighted in his visit to the U.S., “[U]npayable fines and the stigma of a criminal conviction . . . virtually prevents subsequent employment and access to most housing.”

Moreover, criminalization is costly. Diverting resources to law enforcement can cost two to three times more than it would to provide affordable housing. As David Peery, the Executive Director of the Miami Coalition to Advance Racial Equity (MCARE) states, “Criminalization is an expensive way to make homelessness worse.” Additionally, criminalization has a disparate impact by race.

Punishing homelessness is also a human rights violation. Our Human Rights Clinic at the University of Miami School of Law, working with the National Homelessness Law Center, had the privilege of supporting the U.N. Special Rapporteur on the Right to Adequate Housing and the U.N. Special Rapporteur on Extreme Poverty and Human Rights in submitting an amicus brief to the Supreme Court on the relevant international human rights law.

The brief asserts that punishing homelessness through the imposition of fines and fees for life-sustaining activities violates international human rights law. Moreover, it argues that a human rights analysis, centered on the international human right to freedom from cruel, inhuman, and degrading treatment, should inform interpretation of “cruel and usual punishment,” which has historically taken “evolving standards of decency” into account.

The Supreme Court heard oral arguments in April. Justice Kagan highlighted, “[F[or  a homeless person who has no place to go, sleeping in public is kind of like breathing in public.” And Justice Sotomayor underscored the poignancy of the plight facing people who are unhoused, “Where do we put them if every city, every village, every town lacks compassion-- and passes a law identical to this? Where are they supposed to sleep?”

A decision is expected this month. Please see additional information and opportunities to support on social media at https://johnsonvgrantspass.com/.