Human Rights at Home Blog

IACHR Concludes 186th Period of Sessions

The Inter-American Commission on Human Rights (IACHR) concluded its 186th Period of Sessions, which took place in a hybrid format between March 6 and 17, 2023, at the University of California, Los Angeles (UCLA), in the United States.

During the Period of Sessions, the IACHR elected its 2023 Board of Directors, which is made up of the President, Commissioner Margarette May Macaulay (Jamaica); the First Vice-President, Commissioner Esmeralda Arosemena de Troitiño (Panama), and the Second Vice-President, Commissioner Roberta Clarke (Barbados). This is the second time in its history that the IACHR has had an all-female board of directors and the first in which all three women are from the Caribbean and Central America.

During the first week of the 186th Period of Sessions, 18 in-person public hearings were held at the University of California, Los Angeles (UCLA). Among the issues addressed were: women and girls; sexual and reproductive rights; indigenous peoples; forensic search; free movement; human mobility; LGBTI rights; arbitrary deprivation of nationality; fiscal policies and economic, social, cultural, and environmental rights; threats to the independence of the judiciary; the protection of journalists and defenders; and the right to information of victims of forced disappearance.

In addition, more than 70 representatives of civil society organizations took part in the meeting on human rights in the United States. On this occasion, the IACHR held a dialogue and received information on the subject from various participants.

The IACHR has made available an annex containing summaries of the public hearings held during this Period of Sessions. Videos of the hearings and photos are available on the IACHR's YouTube and Flickr feeds.

New Edition of Human Rights Advocacy in the United States

There is a new edition of Human Rights Advocacy in the United States available from West Academic Publishing. The Third Edition (2023) of Martha F. Davis, Johanna Kalb, Risa E. Kaufman and Rachel Lopez's wonderful textbook is now available.

From the editors:

This pedagogically innovative book is the only law school casebook focused on human rights advocacy in the United States. It illuminates a range of both emerging challenges and persistent theoretical and doctrinal issues while equipping students to thoughtfully engage human rights law and strategies in their own practice of law. Readings and case studies expose students to the history, tactics, and critiques of the U.S. human rights movement as well as the legal and practical challenges of human rights implementation in the United States. Skills exercises introduce practice-oriented approaches to integrating human rights in U.S. based advocacy, including through engagement with international treaty bodies, regional mechanisms, U.S. courts, and policymakers. Additionally, the appendices provide the text of relevant human rights treaties.

Appropriate for both introductory and advanced seminars, as well as clinical and other experiential offerings, the materials engage students on a remarkable range of human rights issues, including climate change, reproductive justice, immigration, the rights of Indigenous peoples, racially discriminatory policing, and the human right to housing. Chapters also explore fundamental issues of federalism, sovereignty, judicial review, and legal ethics.

New Article: Moral Imperative—Legal Requirement: Why Law Schools Should Require Poverty Law and International Human Rights

Eric J. Boos, Moral Imperative - Legal Requirement: Why Law Schools Should Require Poverty Law and International Human Rights, 19 U. St. Thomas L.J. 63 (2023). Abstract below.

This paper argues that the growing undercurrent of discontent in this nation, which has manifested in increasing levels of civil unrest, violence, crime, mass shootings, and political chaos, is symptomatic of the ever-increasing disparity in wealth that political philosophers, sociologists, economists such as Alan Greenspan, and politicians such as Bernie Sanders, have warned against. This paper further argues that this disparity is, in large measure, facilitated by the legal establishment. Lawyers are at the heart of the global financial crisis, the restructuring of the criminal justice system as a “for-profit” enterprise, the 900+ police shootings since 2014, the $2 billion of property confiscated under civil forfeiture rules, the mass incarceration policies, the recent environmental scandals, the protection of monopolies in agribusiness, pharmaceuticals, and telecommunications, the dysfunctional system of immigration and deportation, and the deplorable and racially biased legal processes for capital crimes and the death penalty. Unfortunately, the response to the increasing levels of discontent has been a predictable increase in policing tactics, legalistic controls, political fearmongering, social vitriol, and intolerance against targeted populations. Society is ripping apart at the seams, and the response has been a fascist-like clampdown—a trajectory first predicted by Mortimer Adler in 1938. Citing the deplorable state of higher education, Adler averred that America would become the next great fascist state in the World. This paper applies Adler’s critique of higher education to America’s law schools and argues that what is needed to change the trajectory is a different approach to legal education. The justification for a restructuring of American legal education is rooted in the fact that lawyers have a special obligation under the Constitution of the United States to achieve justice and to vitiate the tendency of economic and social stratification that occurs in society. The restructuring would ideally include a comprehensive overhaul of the curriculum so that each course addresses the issue of justice (in the Platonic sense and in the sense our Founders used it), but at a minimum it should require courses in Poverty Law (because of our deplorable track record in that area) and International Human Rights (because we live in a global society and justice is a universal goal).

Event 3/16: Decolonizing Refugee Law

On Thursday March 16, 2023, from 3:00 – 4:30 PM EST, Cornell Law School, Global Strategic Litigation Council for Refugee Rights, and the Refugee Solidarity Network, will present a virtual panel on Decolonizing Refugee law. Register here.

The legal protection of the rights of refugees and other migrants is inscribed within imperial and colonial legacies. This virtual event will consider decolonial practices and the protection of refugees with a focus on positive practices for refugee protection in South and Southeast Asia. Speakers will reflect on the challenges and opportunities for realizing human rights posed by colonial-era laws and legal work in countries which are neither parties to the 1951 Geneva Convention on the Status of Refugees nor its 1967 Protocol. The event will open with framing remarks by Professor E. Tendayi Achiume, reflecting on these themes as well as decolonization itself as a frame for critique. The event will then proceed as a discussion of examples of legal advocacy work promoting refugee rights under contemporary applications of colonial-era laws, such as the Foreigners Act (1946) in Bangladesh, India and Pakistan, and open to a broader discussion of practical strategies for litigation and other legal advocacy in the context of such legacy legal frameworks.

Speakers:

• Tendayi Achiume, Alice Miñana Professsor of Law, UCLA Law and former UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance
• Roshni Shanker, Executive Director, Migration & Asylum Project
• Umer Gilani, Advocate and Partner, The Law and Policy Chambers
• Zaid Hydari (co-facilitator), Executive Director, Refugee Solidarity Network
• Ian M. Kysel (co-facilitator), Assistant Clinical Professor of Law, Cornell Law School

Please note: additional speakers may be confirmed in due course.

Long COVID, Assisted Suicide, and Capitalism: What’s a Society to Do?

By Anezka Krobot, 2L at St. Louis University School of Law

The COVID-19 pandemic has been devastating to billions around the world who have lost opportunities, loved ones, and even their lives to the disease. COVID has also created a new phenomenon that is difficult to predict for the long-term–long COVID. Long COVID, also known as post-COVID conditions, is a wide range of new, returning, or ongoing health problems that people experience after being infected with the virus that causes COVID-19. The most common symptoms are neurological, namely chronic fatigue (similar to the experience of people diagnosed with chronic fatigue syndrome) as well as seemingly permanent loss of taste and smell. There are also heart and respiratory symptoms associated with long COVID. All these symptoms can result in someone having difficulty returning to work even after testing negative for COVID for quite some time. Some people with long COVID even have to quit their jobs and apply for disability.

This is the situation for a Canadian woman who recently made headlines for applying for Canada’s Medical Assistance in Dying program (MAiD) citing long COVID as her reason. Tracey Thompson, a former professional chef in her 50s, has been rendered completely unable to work by her symptoms, and sees no other option than medically assisted death. After more than two years of lost income,, no foreseeable ability to work and an absence of support, Thompson said she expects to run out of money very soon. She said she was applying for the program exclusively for  “financial consideration,” and that her only option is to “die slowly and painfully, or quickly.”

MAiD expanded its criteria in March 2022 to include people with disabilities or those suffering from pain even if they are not close to death and will begin accepting applicants citing mental health disorders as their rationale, further broadening the already broad criteria. United Nations experts pushed back on the original expansion in January 2021, arguing that extending assisted dying to people with non-terminal conditions contravenes Article 10 of the UN Convention on the Rights of Persons with Disabilities.  “It is not beyond possibility that, if offered an expanded right as per Bill C-7, persons with disabilities may decide to end their lives because of broader social factors such as loneliness, social isolation, and lack of access to quality social services,” reads the letter sent by the United Nations experts to the government of Canada prior to the expansion.

Not only has Canada broadened its criteria for MAiD, but it has started to become more proactive in offering it to potential candidates. Disabled veteran and Paralympian Christine Gauthier, 52, testified before a Canadian veterans affairs committee that while she was attempting to gain government assistance in having a chair lift installed in her home that she received a letter from a veterans' affairs employee saying, “If you’re so desperate, madam, we can offer you MAiD, medical assistance in dying.” The Veterans Minister indicated that there had been five similar reports but was quick to assure the committee that a single employee was the culprit, and that individual was now suspended. Still, this begs the question: what kind of culture has been created around MAiD that an employee felt comfortable offering assisted suicide to a person asking for mobility assistance? A wheelchair lift is a permanent addition to someone’s house and someone who wants to die would not invest that kind of time, effort, and money into acquiring such a permanent fixture.

The U.S. is more conservative than Canada in terms of medically assisted death – it is legal only in a few states (California, Colorado, Hawaii, Maine, Montana, New Jersey, New Mexico, Oregon, Vermont, and Washington) and the District of Columbia, and is permitted only under extremely strict parameters. If Canada approves Thompson’s request, though, this may galvanize people in the U.S. suffering with long COVID or chronic mental illness to do the same here, seeing no way out. The economic effects of long COVID may even be exacerbated by living in the U.S., particularly given the difference in the healthcare system between the U.S. and Canada. The combined burdens of losing healthcare coverage along with one’s job, stacking medical bills, difficulty in acquiring disability pensions, and skyrocketing housing costs may result in now-disabled COVID victims feeling as though they have no other choice. Also, the isolation that accompanies COVID may be contributing to suicidal ideation in long COVID victims, which should not be overlooked. The issue of long COVID has already been used in debate over an assisted suicide bill in Connecticut in 2021, with proponents arguing that assisted suicide is preferable to the isolated deaths that many who died of COVID experienced. Though that bill did not pass at the time, a revised version has made it out of the Connecticut legislature’s Public Health Committee and to the public hearing stage as of March 2023.

The UN Guiding Principles on Extreme Poverty and Human Rights states: “Persons living in poverty must be recognized and treated as free and autonomous agents. All policies relevant to poverty must be aimed at empowering persons living in poverty. They must be based on the recognition of those persons’ right to make their own decisions and respect their capacity to fulfill their own potential, their sense of dignity, and their right to participate in decisions affecting their lives.” The expansion of medically assisted death in Canada only pits impoverished people’s pain and suffering with economic needs, while giving them no support or methods by which their lives might improve. It is ableist, classist, and reminiscent of eugenics policies (especially if government officials continue to offer it unprovoked to disabled citizens merely seeking assistance) and should not become the model for medically assisted death going forward. Instead, governments should provide further economic and social assistance to disabled citizens to ensure that they are not forced into poverty by their medical circumstances. If disabled individuals are fully empowered in this way, their quality of life may improve such that medically assisted suicide is no longer their only option, and they can live fulfilling, successful lives, as is every human being’s right. 

New Article: Weathering the Storm: Establishing Internally Displaced People’s Right to Affordable Housing in the Wake of Natural Disasters

Raina Hasan, Weathering the Storm: Establishing Internally Displaced People’s Right to Affordable Housing in the Wake of Natural Disasters, 31 J. L. & Pol'y 177 (February 2023). Abstract below.

In 2020, natural disasters caused more internal displacement than war; floods, storms, and wildfires caused thirty million new displacements globally, and 1.7 million in the U.S. alone. The data and history suggest that masses of people will be displaced every year and will face housing insecurity without any formal acknowledgement of their unique plight or a guarantee that internally displaced persons (“IDPs”) will have protected rights. This Note proposes that, considering the worsening climate crisis leading to more frequent and severe natural disasters, the U.S. should codify the rights of internally displaced people as laid out in the United Nations’ Guiding Principles on Internal Displacement.

In order to actualize IDPs’ right to return and resettle, the U.S. should also establish IDPs’ right to affordable housing when natural disasters force people to leave behind their homes and communities. To effectively enforce such rights, the federal government should provide more affordable housing, invest in making the existing affordable housing stock and new affordable housing developments climate resilient, and collect accurate data on IDPs to provide adequate disaster relief, taking special care not to exacerbate gentrification and surveillance concerns. Codifying the rights of IDPs would go a long way in remedying larger systemic issues such as the racial wealth gap and rampant housing insecurity, ultimately furthering environmental justice.

IACHR Announces Calendar of Hearings for 186th Period of Sessions

The Inter-American Commission on Human Rights (IACHR) has published the calendar of public hearings that will take place as part of the 183rd Period of Sessions, to be held in person from March 6–10, 2023, at the University of California, Los Angeles (UCLA), in the United States. During the period of sessions, several promotional events and 17 public hearings will be held, covering a range of human rights issues affecting people in movement, the LGBTI community, women, indigenous peoples, human rights defenders, and journalists in OAS member countries and the Americas as a whole. Of the 17 hearings, 3 will follow up on cases that have been brought before the IACHR and 1 concerns the implementation of precautionary measures that have been granted. An in-person meeting with civil society on the human rights situation in the United States will also be held on March 10, 2023 between 12:15 p.m. and 2:00 p.m. (PT) in Rooms C and D of the UCLA Meyer & Renee Luskin Conference Center, located at 425 Westwood Plaza, Los Angeles, California. The meeting will be held in a hybrid format, with in-person attendance and the possibility of connecting virtually for those organizations unable to attend in person. In both modalities it will be possible to access Spanish/English interpretation. The link to connect is as follows: https://cidh-org.zoom.us/meeting/register/tZcvcOmspzMuEtTgbKeTuvzoKJyxBpmI8wiV.

The United States will be involved in the hearing on March 9, 2023, from 8:45-10:00AM PT, on the topic of the rights of Haitians in mobility in the United States. The participants will be the Transnational Legal Clinic University of Pennsylvania Carey Law School, the International Human Rights Clinic and Immigration Clinic University of Miami School of Law, the Haitian Bridge Alliance, RFK Human Rights, Alternative Chance, the Institute for Justice & Democracy in Haiti (IJDJ), and the United States.

In accordance with Article 68 of the IACHR's Rules of Procedure, all hearings will be public and will be streamed live via the IACHR's official Facebook, YouTube, and Twitter accounts. The sessions are open to all people wishing to attend (without the need to sign up in advance), and attendance is only limited by the space available at the venue where the hearings are to be held.

Event 3/2: Webinar on The Courts, Climate Change, Migrant and Refugee Rights

On March 2, 2023, from 4:00PM to 5:30PM EST, join the American Society of International Law's  International Refugee Law Interest Group  (IRLIG), the Migration Law Interest Group (MILIG), and their co-sponsor, the Global Strategic Litigation Council for Refugee Rights (GSLC) for a webinar exploring the current state of international migration and refugee law and human rights applicable to those displaced by global climate change; how the law should evolve to meet the current mobility challenges; and practical avenues in international, regional, and national courts to facilitate the progressive development of the law for the protection of the rights of those moving in the context of climate change. The distinguished speakers will be Viviana Krsticevic, Jane McAdam AO, Matthew Scott, and the event will be moderated by Melissa Stewart.

The webinar is free and open to the public. Register for the event here.

New Article: Refugeehood Reconsidered: the Central American Migration Crisis

Macedo, Stephen, Refugeehood Reconsidered: the Central American Migration Crisis (Jan. 18, 2023). Abstract below.

“Who is a refugee?” This essay explores the lively debate on this question in ethics, political theory, and international law. The world now has more refugees than any time since World War II, and there may be no area of public policy in advanced Western states more fraught with deep moral and practical dilemmas. Are state persecution and alienage necessary conditions of refugeehood or is mortal peril sufficient, whatever its cause? The essay describes the various moral grounds relevant to claims for refugeehood, including general humanitarian duties, obligations arising from past and ongoing relations and commitments under international law, and the existence of the state system itself. Particular attention is paid to the Central American migration crisis, and the question of reparative obligations on the part of the U.S. arising from climate change and past state policies that have unjustly harmed sending countries. Further complicating the question of what we ought to do, even for progressive policymakers, is the looming threat of right-wing populist backlash.

February-March 2023 Deadlines: Calls for Inputs by UN Human Rights Mechanisms

The following calls for inputs have been issued by UN Human Rights Mechanisms with deadlines in February – March 2023 and law professors whose practice, research, and/or scholarship touches on these topics may be interested in submission:

Special Rapporteur on the human rights of migrants – Call for inputs to inform the Special Rapporteur’s report on how to expand and diversify regularization mechanisms and programs to enhance the protection of the human rights of migrants. Deadline February 15, 2023. Read more.

Committee on the Rights of Persons with Disabilities – Call for inputs on persons with disabilities in situations of risk and humanitarian emergencies for the Day of General Discussion the Committee will hold on March 16, 17, and 20. Deadline February 15, 2023. Read more.

Committee on the Rights of the Child – Call for comments on the draft general comment on children’s rights and the environment with a special focus on climate change. Deadline February 15, 2023. Read more.

International Independent Expert Mechanism to Advance Racial Justice and Equality in Law Enforcement – Call for inputs on Upcoming Country Visit to the United States of America by the United Nations International Independent Expert Mechanism to Advance Racial Justice and Equality in the context of Law Enforcement from 24 April – 5 May 2023. Deadline February 24, 2023. Read more.

Special Rapporteur on trafficking in persons, especially women and children – Call for inputs on trafficking in persons and protection of refugees, stateless persons, and internally displaced persons (IDPs). Deadline February 28, 2023. Read more.

Office of the High Commissioner for Human Rights – Call for inputs on “Importance of casualty recording for the promotion and protection of human rights.” Deadline February 28, 2023. Read more.

Special Rapporteur on the negative impact of unilateral coercive measures  – Call for Inputs to inform the Special Rapporteur’s two 2023 thematic reports. Deadline February 28, 2023. Read more.

Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism – Call for inputs for Global Study on the Impact of Counter-Terrorism Measures on Civil Society and Civic Space. Deadline February 28, 2023. Read more.

Independent Expert on the enjoyment of all human rights by older persons – Call for inputs on report on violence, abuse and neglect of older persons. Deadline March 1, 2023. Read more.

Office of the High Commissioner for Human Rights – Call for inputs on the High Commissioner’s report on the relationship between human rights and technical standard-setting processes for new and emerging digital technologies. Deadline March 3, 2023. Read more.

Special Rapporteur on extrajudicial, summary or arbitrary executions – Call for inputs for report on deaths in custody. Deadline March 6, 2023. Read more.

Special Rapporteur on the rights of Indigenous Peoples – Call for Inputs for report on tourism and the rights of indigenous peoples. Deadline March 8, 2023. Read more.

Expert Mechanism on the Rights of Indigenous Peoples – Call for inputs for report on establishing monitoring mechanisms at the national and regional level for implementation of the UN Declaration on the rights of Indigenous Peoples. Deadline March 17, 2023. Read more.

Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance – Call for inputs for report on combating glorification of Nazism, neo-Nazism and other practices that contribute to fueling contemporary forms of racism, racial discrimination, xenophobia and related intolerance. Deadline March 17, 2023. Read more.

Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance – Call for submissions on the strategic vision for the fulfilment of the mandate of Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance. Deadline March 17, 2023. Read more.

Office of the High Commissioner for Human Rights – Call for inputs on follow-up report on good practices and challenges in the application of a human rights-based approach to the elimination of preventable maternal mortality and morbidity. Deadline March 20, 2023. Read more.

Special Rapporteur on contemporary forms of slavery, including its causes and its consequences – Call for inputs for report on homelessness as a cause and a consequence of contemporary forms of slavery. Deadline March 31, 2023. Read more.

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

James L. Cavallaro Announced, then Withdrawn as U.S. Candidate for IACHR Commissioner

On February 10, 2023, the U.S. State Department announced its selection of James L. Cavallaro as the United States’ candidate for commissioner of the Inter-American Commission on Human Rights for the 2024-2027 term. The IACHR is one of the principal organs of the Organization of American States (OAS), whose function is to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters and is made up of seven independent members who serve in a personal capacity.

Professor Cavallaro is a visiting professor at Yale Law School, Columbia Law School, Berkeley Law School and UCLA School of Law, as well as the founder and President of the University Network for Human Rights (UNHR), which works to facilitate supervised, interdisciplinary engagement in human rights practice at universities and foster the next generation of human rights advocates. If elected, this will be his second term serving as commissioner – he previously served during the 2014-2017 term, including as its president from 2016-2017.  

Member states of the OAS will vote to fill four IACHR commissioner seats during elections at the June 2023 General Assembly in Washington, D.C. Find the State Department’s press release here, and the UNHR’s press statement here.

Update: The United States has withdrawn Professor Cavallero as a candidate for the OACHR. More here.

UN experts call for new approaches to policing in the United States following deaths of Keenan Anderson and Tyre Nichols

On Friday, February 10, 2023, experts from the United Nations expressed grave concern over the January 3, 2023, death of Keenan Anderson at the hands of the Los Angeles Police Department and the death of Tyre Nichols on January 10, 2023, three days after he was beaten by police in Memphis, Tennessee.

“The brutal deaths of Keenan Anderson and Tyre Nichols are more reminders of the urgency to act,” said Yvonne Mokgoro, Chairperson of the UN International Independent Expert Mechanism to Advance Racial Justice and Equality in the context of Law Enforcement.

The experts have sought detailed information on both the Anderson and Nichols incidents from the Government of the United States, on the ongoing investigations and regulations applicable to the use of less-lethal weapons vis-à-vis applicable human rights standards.

In both cases, the experts stressed that the force used appears to have violated international norms protecting the right to life and prohibiting torture or other cruel, inhumane or degrading treatment or punishment. It is also not in line with standards set out under the United Nations Code of Conduct for Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

A full press statement regarding the Committee’s findings can be found here.

UN Special Rapporteur Visits United States and Guantánamo Bay

From February 6-14, 2023, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism will be visiting Washington D.C. and subsequently the detention facility at the U.S. Naval Station Guantánamo Bay, Cuba.

The current Special Rapporteur on the promotion and protection of human rights and fundamental freedoms is Ms. Fionnuala Ní Aoláin, who has held the position since August 2017. She is is concurrently Regents Professor and Robina Professor of Law, Public Policy and Society at the University of Minnesota Law School and Professor of Law at the Queens University, Belfast, Northern Ireland. Her mandate covers all countries and has most recently been renewed by Human Rights Council resolution 49/10.

Over the course of the subsequent three-month period, the Special Rapporteur will also carry out a series of interviews with individuals in the United States and abroad, on a voluntary basis, including victims and families of victims of the 11 September 2001 terrorist attacks and former detainees in countries of resettlement/repatriation. She will issue an end-of-mission statement of findings and recommendations following the end of the technical visit.

New Article:The End of California’s Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice

Gabriel “Jack” Chin and Anna Ratner, The End of California’s Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice, 20 Asian American Law Journal 17 (2022). Abstract below.

For nearly a century, California law embodied a rabid anti-Asian policy, which included school segregation, discriminatory law enforcement, a prohibition on marriage with Whites, denial of voting rights, and imposition of many other hardships. The Alien Land Law was a California innovation, copied in over a dozen other states. The Alien Land Law, targeting Japanese but applying to Chinese, Koreans, South Asians, and others, denied the right to own land to noncitizens who were racially ineligible to naturalize, that is, who were not White or Black. After World War II, California’s policy abruptly reversed. Years before Brown v. Board of Education, California courts became leaders in ending Jim Crow. In 1951, the California legislature voluntarily voted to pay reparations to people whose land had been escheated under the Alien Land Law. This article describes the enactment and effect of the reparations laws. It also describes the surprisingly benevolent treatment by courts of lawsuits undoing the secret trusts and other arrangements for land ownership intended to evade the Alien Land Law. But ultimately, the Alien Land Law precedent may be melancholy. California has not paid reparations to other groups who also have conclusive claims of mistreatment. Reparations in part were driven by geopolitical concerns arising from the Cold War and the hot war in Korea. In addition, anti-Asian immigration policy had succeeded in halting Japanese and other Asian immigration to the United States. Accordingly, one explanation for this remarkable act was that there was room for generosity to a handful of landowners with no concern that the overall racial arrangement might be compromised.

Event 2/23: Webinar on The Trans-Atlantic Slave Trade and Reparations to Africa

On February 23, 2023, from 11:00AM to 12:30PM EST, join the American Society of International Law for a webinar panel which will address three main topics: 1) reparations for the injustice against enslaved Africans and their generations; 2) reparations for Africans traumatized by the effects of slavery; and 3) the process of healing between Africans affected by slavery around the globe. The distinguished panelists will be Rhoda E. Howard-Hassmann, Mario Nisbett, Crystena Parker-Shandal, and Carl Patrick Burrowes. The moderator will be Matiangai Sirleaf.

The webinar is free and open to all, but participants must have an ASIL account in order to register. The link to do so can be found here.

 

Clearing the Fog: The Importance of Pay Transparency in Remedying Wage Discrimination

By Michael Nunn, 2L at Brooklyn Law School

Historic biases against women and people of color have repeatedly been shown to contribute to long-term economic instability. Despite laws such as the Equal Pay Act of 1963 and the Lily Ledbetter Fair Pay Act’s broad retroactive remedies, pay inequality persists in American society. Significantly, our federal framework fails to fully address employees’ limited access to pay information and their limited ability to negotiate. This is troublesome considering that, to prove discrimination, the laws also place the onus of information-gathering and negotiation on employees, who typically lack the means to avoid under-compensation resulting from historical discrimination.

Usually, those subject to pay discrimination are unaware they are being paid unfairly or fear backlash. As a result, salary negotiations are statistically unfavorable to women and, in particular, people of color: for example, Black and Hispanic women in the U.S. are estimated to achieve parity with white men’s salaries only by 2133 and 2220 (respectively). Recognizing the difficulty in accessing information that shows pay discrimination, pay secrecy among employers is a common denominator in the persistence of the wage gap. Since 2016, as many as a dozen states and localities have either established pay transparency laws, with recent legislation in New York, California, Washington, Colorado, and Connecticut that demand responsibility from employers.

California’s pay transparency law, effective January 1, 2023, now requires employers to include salary ranges in all job advertisements. Additionally, large employers must now submit annual pay data reports disclosing the median and mean hourly rates within each listing by race, ethnicity, and sex. It further provides a private right of action for individuals who file a complaint within a year of learning of employer violations. These provisions make California’s one of the most demanding and progressive pay transparency laws to date.

Similarly, since November 1, 2022, New York City’s pay transparency law requires employers to disclose salary minimums and maximums for all job advertisements based on a “good faith” belief of what they would pay a successful applicant. The New York State legislature recently passed similar legislation, signed in December, and taking effect later this year.

A common motivation among jurisdictions passing such legislation is to make discrimination more identifiable for employees and employers. If given upfront access to comparative salary data as a reference, employees may identify instances of pay discrimination earlier in the hiring process. Moreover, these laws push employers to actively evaluate the validity of their pay practices, as they stand to lose out on talent if their payscales are incongruous with market-rate salaries for similar positions.

Concurrently, the European Union reached a similar conclusion as it, too, struggles to enforce equal pay laws, with a persistent gender wage gap of about 13% (compared to about 17% in the U.S.). In a 2020 report, the European Commission found a significant issue hindering access to justice is “the establishment of a prima facie case of pay discrimination,” with lack of pay transparency as the main obstacle to addressing gender inequality. In response, the Commission issued an equal pay directive in 2021 focused on increasing access to justice and pay transparency for employees. On December 15, 2022, the European Parliament and the Council on the Directive reached agreement on implementing rules.

In practice, the benefits of transparency are readily observed. In unionized workplaces, where pay transparency practices are the most common, the wage gap is significantly smaller than in nonunionized workplaces. Studies have shown that union representation reduces women’s wage gap by “nearly 40% compared to the wage gap experienced by non-union women.” This benefit is attributable to the “transparency and equality provided in union contracts,” according to the U.S. Department of Labor Women’s Bureau. Such benefits had been observed in Europe, where EU member states that implemented pay transparency laws found that workforce participation and retention improved, and women’s career progression strengthened.

In a notable fashion, pay transparency laws have begun cropping up in states across the U.S. Although non-compliance concerns have invariably arisen since the pay transparency laws have gone into effect, many believe these laws will be the most effective in dispersing the fog of confidentiality that enshrouds wage discrimination.

New Article: Commission on Recognition and Reconstruction for the United States: Inspirational or Illusory?

Penelope Andrews, A Commission on Recognition and Reconstruction for the United States: Inspirational or Illusory?, 66 N.Y.L. Sch. L. Rev 359 (2022). Abstract below.

In this article I suggest that President Joe Biden issue an executive order to establish a Commission on Recognition and Reconstruction (CRR) to comprehensively confront the ongoing challenges to racial justice. I envisage the CRR as an adjunct to, and not a replacement for, the several measures currently being undertaken in law and policy to address these challenges. I imagine the CRR providing a national focus on the many ways that public and private institutions have responded to this current moment of racial distress, while also highlighting the obstacles and omissions toward the attainment of racial justice. The proposed CRR would then establish goals to be measurable in the short-, medium-, and long-term.

Event (video): Economics Reimagined: Building a Human Rights Economy

The New School, Aspen Institute, and the OHCHR, co-sponsored an event in Washington D.C. on January 19^th, 2023, focusing on a human rights economy in the U.S. Arecording of the discussion is available at the following link: Aspen Institute - Economics Reimagined a Discussion on Building a Human Rights Economy

Description:

The Universal Declaration of Human Rights, adopted 75 years ago by the United Nations, set forth a set of civil, social, and economic rights that inspired the development of human rights’ laws around the world. The declaration has been a north star for those working to build an equitable and fair society for all people ever since. But over the intervening decades, our economic agenda and policymaking have often focused on economic growth and business success metrics at the expense of human well-being. This economic framework, which preferences profits over people, has contributed to skyrocketing wealth and income inequality, economic instability, social unrest, and recently the rise of new authoritarian movements. The economic rights from the Universal Declaration of Human Rights, however, are reemerging as part of a call for a more moral and equitable economic order.

In this context, the Office of the United Nations High Commissioner for Human Rights (OHCHR) and The New School’s Institute on Race, Power and Political Economy recently announced the Partnership for a Human Rights Economy. The partnership will help advance scholarship and economic policymaking toward achieving human rights. Join the Aspen Institute Economic Opportunities Program and The New School’s Institute on Race, Power and Political Economy for “Economics Reimagined: A Discussion on Building a Human Rights Economy” on January 19 from 2:00 to 3:45 p.m. EST. Learn more about The New School’s exciting new partnership with the UN and explore the legacy and lasting influences of the Universal Declaration of Human Rights, the philosophies and values that have come to shape our economy and the consequences, and how we build a moral and inclusive economy based on human rights.

January - February 2023 Deadlines: Call for Inputs by UN Human Rights Mechanisms

The following calls for inputs have been issued by UN Human Rights Mechanisms with deadlines in January – February 2023 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 regarding promoting and protecting economic, social and cultural rights within the context of addressing inequalities in the recovery from the COVID-19 pandemic. Deadline: January 31, 2023. Read more.

Office of the High Commissioner for Human Rights – Call for inputs regarding human rights and the regulation of civilian acquisition, possession and use of firearms, to inform the High Commissioner’s report pursuant to Resolution 50/12. Deadline: January 31, 2023. Read more.

Expert Mechanism on the Rights of Indigenous Peoples – Call for inputs regarding the impact of militarization on the rights of Indigenous Peoples. Deadline: January 31, 2023. Read more.

Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism – Call for inputs regarding the global study on the impact of counter-terrorism measures on civil society and civic space. Deadline: February 1, 2023. Read more.

Working Group on Enforced or Involuntary Disappearances - Call for inputs for a thematic study on “new technologies and enforced disappearances.” Deadline: February 3, 2023. Read more.

Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression – Call for inputs to the thematic report of the Special Rapporteur on Freedom of Opinion and Expression to the UN Human Rights Council: “Freedom of Opinion and Expression and Sustainable Development - Why Voice Matters.” Deadline: February 3, 2023.

Special Rapporteur on the rights to freedom of peaceful assembly and of association – Call for inputs from the mandate of the Special Rapporteur on the rights to freedom of peaceful assembly and for his report to be presented at the 53^rd session of the HRC. Deadline: February 6, 2023. Read more.

Special Procedures – Call for inputs to inform the Special Rapporteur’s report on how to expand and diversify regularization mechanisms and programs to enhance the protection of the human rights of migrants. Deadline: February 15, 2023. Read more.

Committee on the Rights of Persons with Disabilities – Call for inputs on persons with disabilities in situations of risk and humanitarian emergencies for the Day of General Discussion the Committee will hold on March 16, 17, and 20. Deadline: February 15, 2023. Read more.

International Independent Expert Mechanism to Advance Racial Justice and Equality in Law Enforcement – Call for Inputs on Upcoming Country Visit to the United States of America by the United Nations International Independent Expert Mechanism to Advance Racial Justice and Equality in the context of Law Enforcement from 24 April – 5 May 2023. Deadline February 24, 2023. Read more.

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

New Article: Foreword: Centering Intersectionality in Human Rights Discourse

Johanna Bond, Foreword: Centering Intersectionality in Human Rights Discourse, 79 Wash. & Lee L. Rev. 953 (2022). Abstract below.

In the last decade, intersectionality theory has gained traction as a lens through which to analyze international human rights issues. Intersectionality theory is the notion that multiple systems of oppression intersect in peoples’ lives and are mutually constitutive, meaning that when, for example, race and gender intersect, the experience of discrimination goes beyond the formulaic addition of race discrimination and gender discrimination to produce a unique, intersectional experience of discrimination. The understanding that intersecting systems of oppression affect different groups differently is central to intersectionality theory. As such, the theory invites us to think about inter-group differences (i.e., differences between women and men) and intra-group differences (i.e., differences in the experiences of discrimination and rights violations between white women and women of color).