Wednesday, December 1, 2021
Evaluating the Implementation of Human Rights Law: A Data Analytics Research Agenda, University of Pennsylvania Journal of International Law, Vol. 43, 2021 Forthcoming. Abstract below.
The United Nations’ reporting process, a built-in component of all major human rights treaties, enables monitoring and evaluation of countries’ progress toward human rights goals. However, the operation and effectiveness of this process have been largely under-studied. This Article lays the foundations for a data analytics research agenda that can help assess the reporting process and inform human rights law implementation. As a first step, we use a relatively new set of computational tools to evaluate the Concluding Observations issued by a human rights treaty body, the Committee on the Rights of the Child. The Concluding Observations provide both an appraisal of states’ practices and a set of recommendations that act as an agenda for the state going forward. Using text and data analytics tools, we mined the text of Concluding Observations issued by the Committee on the Rights of the Child over a twenty-seven year period to identify the topics addressed in each report and parsed the language of these reports to determine the tenor and tone of the Committee’s discussion. We then mapped our findings by state and year, to form a detailed descriptive picture of what the Committee has said, and how the Committee has delivered its message(s), across both geography and time. In doing so, we hope to show how these data analytics tools can contribute to a deeper understanding of the Committee’s work and, more broadly, of the effectiveness of the reporting process in securing and protecting human rights.
Monday, November 29, 2021
November 22, 2021 – Last week Mr. Fernand de Varennes, UN Special Rapporteur on minority issues, urged the United States of America to overhaul legislation to prevent increasing exclusion, discrimination and hate speech and crimes against minorities, saying the legal landscape for the protection of human rights is far from comprehensive or even at times coherent.
“What you have now is a patchy tapestry of laws first drafted more than 60 years ago, showing signs of fatigue,” Fernand de Varennes, the Special Rapporteur on minority issues, told reporters at the end of a 14-day visit to the United States.
“The United States is a nation of paradoxes when it comes to human rights and minorities, espousing itself as the land which welcomes the world’s tired, poor, and huddled masses yet where support for slavery led to one of the world’s most brutal civil wars, where racial segregation persisted late into the 20th century, and where indigenous peoples’ experiences have for centuries been one of dispossession, brutality and even genocide,” he said.
“Though there were significant and hard-won human rights gains made mainly during the civil rights movement in the 1960s, the USA stands out among Western democracies for its incomplete patchwork of human rights recognition and their legal protection, with minorities and indigenous peoples, most likely left behind in times of upheaval, uncertainty and crisis.
“Recent years have seen these deficiencies in human rights and the phenomenal growth of hate speech in social media, growing inequalities between have and have nots, often minorities and indigenous peoples, creating toxic conditions and an unhealthy pandemic of the mind, a poisoning of individual minds and society in many parts of the country.”
You can read his full statement on OHCHR’s website here.
Mr. Varennes will present his final report on his visit to the U.S. to the UN Human Rights Council in Geneva in March 2022.
Wednesday, November 24, 2021
On Wednesday December 1, 2021, from 2-3 ET/1-2 CT/12-1 MT/11-12 PT, the National Homelessness Law Center will host a webinar to present its soon-to-be released report, Housing Not Handcuffs 2021: State Law Supplement. The 2021 report supplements the Housing Not handcuffs 2019 report, which tracked close to 200 cities for their laws criminalizing homelessness and found increases in the number of local laws criminalizing homelessness. This Supplement tracks state laws and finds 48 out of 50 states & DC with some form of law criminalizing homelessness at the state level. The webinar will focus on the experience of people with criminalization, the findings of the report, concerning trends, and exciting efforts to repeal state laws. Confirmed speakers for the webinar include:
- Rajan Bal - report lead author, formerly with the National Homelessness Law Center, now at Children’s Law Center
- Joe Abraham - pro bono counsel Law Office of Joseph M. Abraham, PLLC
- Delaware State Rep. Eric Morrison, (RD-27)
- Oregon State Rep. WInsvey Campos (RD-28)
- To be moderated by Tristia Bauman, Senior Attorney at the Law Center.
To register for the webinar, visit https://us02web.zoom.us/webinar/register/WN_OQWAMtwtSHGGrTpsVti1bQ.
Monday, November 15, 2021
By Kaeleigh Williams, 2L at St. Louis University School of Law
Last week, voters in Maine voted to add a “right to food” amendment to the state’s constitution. The amendment, which is the first of its kind in the United States, provides Mainers with a constitutional right to grow, harvest, and consume their own food, and it includes protections for rights to seed saving and seed sharing.
The amendment was approved by the state legislature by a two-thirds vote earlier this year, but it needed approval from voters in order to become a constitutional amendment. It was approved by 60 percent of voters, according to Ballotpedia.
Maine, a state with a bustling agricultural industry, has been at the forefront of the food sovereignty movement, which envisions a food system where producers also have control over how their goods are sold and distributed. The goal of the referendum was to ensure local communities have more control over their food supply, Heather Retberg wrote in the Maine Citizen’s Guide to the Referendum Election.
As a constitutional amendment, the measure will preempt existing Maine laws and regulations, leaving them vulnerable to legal challenges. The Bangor Daily News editorial board, which opposed the bill, said the amendment “raises a host of questions about what this language would mean for existing laws and regulations spanning from food safety and animal welfare to environmental protection.”
States such as Montana, Wyoming, Colorado, and North Dakota have pressed similar legislation addressing food sovereignty, and advocates of the new amendment say it will open the door for more states to follow suit.
Tuesday, November 9, 2021
Martha F. Davis, Access to water is a human right. When will the U.S. government agree?, WBUR (Nov. 3, 2021). Excerpt below:
“Water is life, and water policy should be a central concern of nations as they gather for the COP26 in Glasgow this week. The need to prioritize water is all around us: more flooding and drought, the growing incidents of water contamination and rising costs of maintaining potable water for drinking, cooking and hygiene.
For the first time at a U.N. climate conference, concerned members of the water sector — governments and non-governmental partners — have come together to sponsor a Water & Climate pavilion where attendees can hear from experts, conduct side discussions, network and engage with youth activists around water issues. The stated intent is to develop a ‘unified voice on the role of water in meeting the goals of the Paris Agreement and to support ambitious and science-based global climate action.’
Unfortunately, the United States has often been on the sidelines during international discussions of water challenges.”
Monday, November 8, 2021
Event: 11/10 Webinar: Refugees and Asylum in USA: Review of Domestic Interpretations are at Odds with International Guidance
Wednesday November 10, 2021, at 12noon ET, the American Bar Association will host a webinar entitled Refugees and Asylum in the U.S. & Review of Domestic Interpretations at Odds with International Guidance. This webinar will review the differences between the Refugee and Asylum processes (which includes Withholding of Removal) in order to provide clarity to new practitioners about the start contrasts between the two USA refugee programs and to inform on international law compliance. This program’s speakers will focus on two topics:
Topic 1: The Hon. Paul Grussendorf
Paul Grussendorf has worked with both the refugee and asylum programs in the United States and abroad. He headed a law school legal clinic at the George Washington Law School representing asylum seekers, served as an Immigration Judge handling asylum cases, worked as a Supervisory Asylum Officer with the U.S. Department of Homeland Security Office of Citizenship and Immigration Services [CIS], as a refugee officer with Refugee Affairs Division of USCIS, and as a refugee officer and supervisor with the UN Refugee Agency (UNHCR).
Topic 2: The Hon. Jeffrey Chase
Jeffrey Chase is a retired Immigration judge for New York City. He has written extensively about the inter relationship of international law sources with the U.S. national law when administering cases involving asylum and refugee applications. He has a blog entitled Opnions/Analysis on Immigration Law. He coordinates The Round Table of Retired Immigration Judges, an informal group of Retired Immigration Judges from both the trial and appellate level, who weigh in on topics relating to the administration of justice by the Immigration Court. The Round Table files amici briefs, and has issued position papers and testimony on issues affecting due process and the administration of justice by the Immigration Courts.
For more information and to register for this webinar, visit: https://americanbar.zoom.us/webinar/register/WN_72UYwCvkT8Cnih3XEaj-6Q.
Tuesday, November 2, 2021
On Wednesday November 3, 2021, at 5:00pm ET, the American Society of International Law's Rights of Indigenous Peoples Interest Group is holding a webinar on Indigenous Peoples and Constitutional Reform.
Over many years, Indigenous Peoples have successfully developed and applied international law to protect and promote their rights and interests in domestic and transnational forums. In 2007, this global movement led to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples. Almost fifteen years after the adoption of this international standard, it is time to take stock and assess whether and how Indigenous Peoples' rights are respected in domestic law. This webinar will provide an update on constitutional and public law reform to recognize, protect and promote the status and rights of Indigenous peoples in three common law countries.
- Shea Esterling, Senior Lecturer, University of Canterbury, Co-chair, Rights of Indigenous Peoples Interest Group (Moderator)
- Harry Hobbs, Senior Lecturer, University of Technology Sydney, Co-chair, Rights of Indigenous Peoples Interest Group
- Dani Larkin (Bundjalung, Kungarykany), Lecturer, University of New South Wales
- Darcy Lindberg (Plains Cree), Assistant Professor, University of Victoria
- Valmaine Toki (Ngati Wai, Ngapuhi, Ngati Whatua), Professor, Waikato University
This event is free and open to all, but advance registration is required to receive the Zoom link.
Monday, November 1, 2021
David Birchall, Corporate Power over Human Rights, Encyclopedia of Business Ethics (October 4,2021), Abstract Below.
The business and human rights (BHR) movement has developed rapidly since the 1990s, in lockstep with spiralling corporate size, wealth and influence. BHR attempts to hold corporations to account for human rights abuses. As such it does not address corporate power directly, and it is not of fundamental importance to BHR whether corporations are growing more powerful in relation to governments, society, or smaller businesses. Rising corporate power, does, however, have marked effects on access to human rights.
Corporations evidently hold the power to abuse human rights and to avoid accountability for these abuses. This clear from numerous major cases, from the Bhopal gas leak to the collapse of Rana Plaza in Bangladesh, both of which resulted in major fatalities and demonstrated the failures of current practices, regulation and remedy. Environmental degradation with fatal consequences, modern slavery, and complicity with oppressive regimes are all examples of corporations using their power to further their profits through rights abuse.
Sunday, October 31, 2021
The following calls for inputs have been issued by the UN Human Rights Mechanisms with deadlines in November 2021 and law professors whose practice, research, and/or scholarship touches on these topics may be interested in submission:
Special Rapporteur on the rights of persons with disabilities – Call for inputs on Report of the Special Rapporteur on the rights of persons with disabilities on Artificial Intelligence and the rights of persons with disabilities. Deadline November 3, 2021. Read more.
Special Rapporteur on Minority Issues – Call for inputs on upcoming country visit to the United States of America. Deadline November 7, 2021. Read more.
High Commissioner of the United Nations for Human Rights – Call for inputs on social development challenges faced by persons with albinism. Deadline November 30, 2021. Read more.
Special Rapporteur on the right to adequate housing, Balakrishnan Rajagopal and Special Rapporteur on extreme poverty and human rights, Olivier de Schutter– Call for inputs on report on Decriminalization of homelessness and extreme poverty. Deadline November 30, 2021. Read More.
Special Rapporteur on the right to adequate housing, Balakrishnan Rajagopal and Special Rapporteur on extreme poverty and human rights, Olivier de Schutter – Call for inputs on Decriminalization of homelessness and extreme poverty. Deadline November 30, 2021. Read more.
This information was compiled by Khala Turner, a 3L at St. Louis University School of Law, from https://ohchr.org/EN/Pages/calls-for-input.aspx.
Tuesday, October 26, 2021
Laura T. Dickinson, National Security Policymaking in the Shadow of International Law, Utah Law Review, Vol. 2021, No. 3 (2021). Abstract below.
Scholars have long debated whether and how international law impacts governmental behavior, even in the absence of coercive sanction. But this literature does not sufficiently address the possible impact of international law in the area of national security policymaking. Yet, policies that the executive branch purports to adopt as a wholly discretionary matter may still be heavily influenced by international legal norms, regardless of whether or not those norms are formally recognized as legally binding. And those policies can be surprisingly resilient, even in subsequent administrations. Moreover, because they are only seen as discretionary policies, they may be more easily adopted than formal legal interpretations. For all of these reasons, the impact of international law on national security policymaking is a crucial unexplored area in the debate about the efficacy of international law.
This Article describes how the norms and values embedded in international human rights law can sometimes be adopted, if not as a matter of formal law at the international level, then as a matter of official policy and practice. In addition, it surveys the advantages and disadvantages of such an approach, using two different Obama administration counterterrorism policies and Trump administration successor policies as case studies. Ultimately, I argue that the emergence and persistence of such policies is evidence of international law’s constraining impact. International law, it turns out, casts a long shadow as its paradigms get translated into policy. I also analyze the attributes of these policies, including their “legalistic” character and the consequences of creating policies of this type. This analysis suggests that importing international law paradigms into national security policymaking can be a pragmatic and effective alternative to formal international lawmaking, though it also may side-step the process of creating robust new international law rules. Therefore, it is a practice that executive branch officials from the United States and other countries, human rights organizations, and administrative, constitutional, and international law scholars should at least consider, while weighing both the pros and cons. In addition, the stickiness of such policymaking, even across administrations, illustrates the importance of institutional path dependence, the role of lawyers, the constraint of interoperability with key U.S. allies in multilateral military actions, and the way norms get embedded in government organizations.
Monday, October 25, 2021
The Inter-American Commission on Human Rights is current holding its 181st Period of Sessions virtually from October 18th until October 29th of 2021.
To view the hearings, pre-registration is required: https://oas.org/en/iachr/sessions/calendario.asp?S=181. All times are listed in United States Eastern Standard Time.
Some of the upcoming hearings that might be of interest to our readers include:
Tuesday, October 26, 2021:
16:00 – 17:30: Protection of people in Human Mobility in the United States, Mexico, and the Northern Central America
Wednesday, October 27, 2021:
9:00 – 10:30: Use of surveillance technologies and their impact on freedom of expression in the context of the pandemic in the region.
Thursday, October 28, 2021:
14:00 – 15:30: Human rights situation of persons deprived of liberty in the Americas.
For basic information and guidelines about the proceedings and hearings, please visit https://oas.org/en/iachr/jsForm/?File=/en/iachr/sessions/coverage.asp.
Sunday, October 24, 2021
By Kaeleigh Williams, 2L at St. Louis University School of Law
On Thursday October 14, 2021, the U.N. General Assembly elected the United States to the Geneva-based Human Rights Council. The Trump administration quit the 47-member body more than three years ago, after it called the 47-nation council hypocritical and for anti-Israel prejudice. The withdrawal from the council was disappointing for many, who hoped to persuade the U.S. that a multilateral approach to the world’s biggest problem was worth sticking with.
The U.S. received 168 votes in the secret ballot by the General Assembly. It begins a three-year term on January 1, 2022.
When President Joe Biden took office in January, he pledged that human rights would be the center of his foreign policy and his administration has not shied away from criticizing China over Hong Kong, Xinjiang and Taiwan and calling out Russia.
"The U.S. will have an opportunity to demonstrate just how serious the Biden administration is about making human rights central to its domestic and foreign policies," said Human Rights Watch U.N. Director Louis Charbonneau. "With a lot of missteps so far, they should use their time on the council to promote human rights among friends and foes alike."
Antony J. Blinken, U.S. Secretary of State, stated, “We will work hard to ensure the Council upholds its highest aspirations and better supports those fighting against injustice and tyranny around the world. The path towards the protection of human rights and fundamental freedoms will be filled with challenges. The United States commits to continue this steadfast pursuit, at every opportunity, with any and all countries that will join us.”
See President Biden’s statement about the U.S. election to the HRC here.
Tuesday, October 19, 2021
Edited by Nehal Bhuta, Florian Hoffmann, Sarah Knuckey, Frédéric Mégret, and Margaret Satterthwaite, The Struggle for Human Rights: Essays in honour of Philip Alston (2021), Description below.
The Struggle for Human Rights evaluates the themes of law, politics, and practice which together define international human rights practice and scholarship. The included essays provide an in depth analysis of both the promise and limits of the human rights project, helping readers to understand where the human rights project stands and where it might be headed.
Taking as it's inspiration the 40 year career of international human rights advocate Philip Alston, this book of essays examines foundational debates central to the evolution of the human rights project. It critiques the reform of human rights institutions and reflects on the place of human rights practice in contemporary society.
Bringing together leading scholars, practitioners, and critics of human rights from a variety of disciplines, The Struggle for Human Rights addresses the most urgent questions posed within the field of human rights today - its practice and its theory. Rethinking assumptions and re-evaluating strategies in the law, politics, and practice of international human rights, this book is essential reading for academics and human rights professionals around the world.
Additional information on the editors and contributors can be found here.
Monday, October 18, 2021
Sital Kalantry, Do Reason-Based Bans Prevent Eugenics?, Cornell Law Review Online (Oct. 13, 2021). Abstract below.
Two judges of the U.S. Supreme Court, Amy Coney Barrett and Clarence Thomas, as well as several other U.S. Federal Court of Appeals judges have argued that reason‑based abortion bans are designed to prevent eugenics. Eleven states currently prohibit doctors from performing an abortion if they know that the reason the patient is seeking one is because of the predicted gender, race, and/or disability of the fetus. These prohibitions apply from the moment the biological sex and genetic defects of the fetus can be identified, which is well before viability.
Many are closely watching to see whether the new composition of the Court will impact its abortion jurisprudence. The Court’s refusal to prevent the Texas law that allows private actors to enforce a pre‑viability prohibition on abortion has recently gained national attention.3 Another case that is being closely watched is Dobbs v. Jackson Women’s Health Organization, which could permit states to enact prohibitions on pre‑viability abortions. This Essay discusses a lesser‑known case through which Roe v. Wade could be gutted—by declaring reason‑based bans constitutional. If the Court finds that one reason‑based abortion ban is constitutionally permissible, it will open the door for states to destroy the fundamental right to abortion by enacting many more reasons for why abortion is impermissible.
Sunday, October 17, 2021
The United States was elected to the UN Human Rights Council on October 14, 2021, more than three years after the Trump administration withdrew from the Council. On the campaign trail President Biden had promised that the United States would week election on the Council and the administration began to reengage with the Council earlier this year as an observer.
Also noteworthy is that on September 24, 2021, the United States submitted its Sixth Periodic Report to the UN Committee Against Torture concerning the implementation of the United States’ obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in accordance with Article 19 of the Convention. The report covers both domestic and extra-territorial violations of the prohibition against torture, cruel, inhuman, degrading treatment or punishment. As reported by Jamil Dakwar, Director of the American Civil Liberties Union's Human Rights Program, the report was due in 2018 but the Trump administration failed to submit a reply to the Committee’s detailed questions. The organization of this report follows the general guidelines for the preparation of reports by Member States. The U.S. report will likely be reviewed by the U.N. Committee Against Torture in late 2022 or early 2023 depending on the backlog caused by COVID-19. U.S. civil society organizations (including human rights clinics) may wish to submit shadow reports to the Committee in the coming year.
Tuesday, October 12, 2021
The U.N. Human Rights Council recognized for the first time on Friday, October 8, 2021, that having a clean, healthy, sustainable environment is a human right. Four countries abstained: Russia, India, China, and Japan.
The United States is not currently a member of the Council, so did not participate in the vote. However, Inside Climate News reported that the Biden Administration opposed the resolution behind the scenes, seeing it as an extension of the U.S.'s historic opposition to recognition of economic, social and cultural rights.
The U.N. Human Rights Council last week also established a new Special Rapporteurship on the promotion and protection of human rights in the context of climate change.
For a great analysis of the Council's decision and other recent developments on the right to a healthy environment, see Maria Antonia Tigre's blog post released earlier today here.
Monday, October 11, 2021
The University of Vienna in cooperation with the Ludwig Boltzmann Institute of Fundamental and Human Rights are hosting an international conference `International Criminal Law before Domestic Courts', which will take place online from Thursday October 14 until Saturday October 16, 2021. From the organizers:
"The conference will be held in a hybrid form at the Law Faculty of the University of Vienna and will be livestreamed. More than 30 academics and practitioners will participate. The conference is particularly relevant to experts, professionals, and students interested in international criminal law, public international law and human rights as it will tackle corresponding current topics from an academic, as well as from a practitioners’ perspective. We would like to especially invite young scholars, lawyers, and practitioners to join the discussion. The talks delivered at the conference will be published in a book next year."
The schedule and registration form can be accessed through the official website of the conference at https://www.iclconference21.com/.
Sunday, October 10, 2021
Tamar Hostovsky Brandes, Solidarity as a Constitutional Value, Buffalo Human Rights Law Review, Vol. 27, No. 2 (2021). Abstract Below.
In the face of the threats posed by the COVID-19 pandemic, Solidarity has become the term of the hour. The World Health Organization organized a “solidarity series of events”, under the hashtag “together at home”, and chose the title “Solidarity” for the ambitious global initiative to find a treatment to the virus, establishing a “Solidarity” response fund. Within countries, solidarity was raised as a value requiring the imposition of various social distancing measures and limitations, needed, it was argued, in order to protect both society as a whole, as well as individuals who were especially vulnerable to the virus.
The different approaches taken by countries in responding to the COVID-19 crisis can, in part, be explained by the different social perceptions regarding the importance of social solidarity and the duties that stem from it. The notion of solidarity, explored below, underlies the web of mutual commitments among members of a community, and, in the case of states, among members of the political community.
This article examines the role solidarity can play when recognized as a constitutional value. Narratives of solidarity are prevalent in constitutions world-wide, both implicitly and explicitly. Despite this prevalence, constitutional scholarship has paid relatively little attention to the notion of solidarity. The article aims to take a step in filling this gap. It calls for recognition and discussion of the significance, potential and perils of recognizing solidarity as a constitutional value and of applying it in constitutional adjudication.
The article argues that despite the liberal aversion of the notion of solidarity, which is understandable in light of potential abuses of the concept to justify limitations of individual freedom, solidarity is a precondition for the existence of just societies and for distributive justice, as well as for ensuring that human rights are equally and inclusively realized.
The article argues that the relationship between collective identity and solidarity is complex, that solidarity is a multi-layered phenomenon, and that these complexities can and should be reflected in the constitutional manifestation of solidarity. Constitutions do and should refer to more than one layer of solidarity, and courts can and should play a part in instilling substance in these layers. Where solidarity is recognizing as a value, it can serve to examine the effect of laws and policies on under-privileged members of society, and as a source for deriving duties towards them.
Finally, the article argues that although constitutional solidarity may intuitively be expected to endorse only intra-state solidarity, that is, solidarity among members of the political community, constitutions can and do endorse notions of transnational solidarity. The article argues that constitutionalism can thus be an important source of “bottom-up” transnational and global solidarity.
Wednesday, October 6, 2021
This blog introduced the Entitled podcast in a post on August 23, 2021. This post below provides more information about the hosts of the podcast and the first couple of episodes.
By Khala Turner, 3L at St. Louis University School of Law
Entitled is a new podcast from two esteemed professors at the University of Chicago. Professor Tom Ginsburg and Professor Claudia Flores. Professor Tom Ginsburg is a Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar, and Professor of Political Science. Professor Tom Ginsburg has dedicated tremendous amounts of effort into the international law practice area. Professor Claudia Flores is an Associate Clinical Professor of Law and the Director of the Human Rights Clinic at the University of Chicago. Professor Flores has specialized in human rights violations of low-wage immigrant workers and assisted in advising governments on the Convention of All Forms of Discrimination Against Women.
On the new Entitled podcast, the two professors work together to discuss “why rights matter and what’s the matter with rights,” and each biweekly episode is around 40 minutes or shorter. The first episode, “What’s the Matter with Rights,” goes into an in-depth discussion about what rights should be considered after a brief discussion about rights in a conversation about a democratic Libya. The professors shared their thoughts of what human rights meant and creating a list of what is most important for communities. “Highly educated people define what the normalization should be [for rights].” This comment was made to determine who creates rights for communities in countries across the globe. The thought that a group of the most intelligent people across the globe come together to define what is of importance for every person creates the concern for how they determine what to discuss, based on what rights are the most important.
“All laws are really just making stuff up.” As stated in the podcast, laws are either thought to be created by God, who predetermines rights with no human control or input, or humans that have an entitled interest by the virtue of being human. The most important rights should have a connection with morality and should correspond with a duty that is implemented to satisfy a right. Professor Ginsburg and Professor Flores took statements from their students to gauge what they would decide are important rights. In the brief comments, most were basic rights such as food, shelter, and basic opportunities but these rights are not listed in the Constitution and are not considered civil or political rights that we consider legally.
Throughout the podcast, both Professor Ginsburg and Professor Flores discuss global human rights and decipher through the hard-hitting questions on why our rights matter, and how they may be challenged as time progresses.
Tuesday, October 5, 2021
Desirée LeClercq, The Disparate Treatment of Rights in U.S. Trade, Fordham Law Review, Vol. 90, No. 1 (2021). Abstract below.
Rights advocates are increasingly urging U.S. trade negotiators to include new binding and sanctionable provisions that would protect human rights, women’s rights, and gender equality. Their efforts are understandable. Trade agreements have significant advantages as a process for advancing international rights. Even though Congress and the executive incorporate international environmental standards and labor rights into U.S. trade agreements, they have refused to incorporate gender rights and broader human rights. The rationale behind the United States’s disparate treatment of rights in trade has received almost no scholarly attention. That is a mistake.
Using labor rights as a case study, this Article discerns the rationale for incorporating rights into U.S. trade policy. Properly understood, U.S. policymakers incorporate some rights into U.S. trade agreements because they view those rights as critical to protecting national industries and citizens from unfair trade conditions. Efforts to incorporate rights as the ends rather than the means to trade policy accordingly fail to resonate with policymakers. Those efforts also fail to appreciate the significant policy drawbacks of coupling trade law and international rights law, such as conflicts between international law and domestic federal and state laws, and challenges to domestic processes in the United States and abroad. Nevertheless, there are alternative ways that the United States may protect international rights while preserving the sanctity of both