Human Rights At Home Blog

African American Policy Forum's Statement on Dobbs v Jackson Women's Whole Health

Editor's Note:  The African American Policy Forum published an important statement on the Dobbs decision.  The links included are worth viewing.  The Support local abortion funds link includes a list of abortion facilities nationwide in need of support.  The statement is legally important but equally critical because it calls on us to untie rather than despair.

The statement reads:

Today, an illegitimate Supreme Court—stacked with radical conservative justices who lied to Congress about their adherence to the precedents confirming our civil and reproductive rights—advanced their plan to undermine the right to equal protection under the law and the right to bodily autonomy.

To say we are outraged by the immoral and constitutionally questionable opinions from the Supreme Court in Dobbs v. Jackson Women’s Health Services is an understatement. Make no mistake: to rip vital abortion care out of the hands of millions of Americans who may need it is a devastating act of political violence. It will also be disproportionately lethal to Black and poor women who now will lose their already-limited access to abortions.

“We have barely emerged from a week of commemoration of emancipation in which the legacy of coerced pregnancy that was the foundation of enslavement and the source of the profits in the slave trade has yet to be addressed. The consequence of our society’s failure to see coerced pregnancy as a legacy of enslavement has descended once again upon Black women and all pregnant people with lethal force. Had the project of liberation from enslavement been rooted in this recognition, then coerced childbirth would have been prohibited as a foundational principle of freedom. The incompleteness of our conceptions of liberty thus harken back to the unspeakable past and stretch forward into this painful moment, proving once again that the intersections of patriarchy, racism, and heteronormativity will continue to undermine the freedoms that we all take for granted unless we learn how to address them simultaneously. Our response must not be siloed to a problem that is historically and continuously interconnected."

– Kimberlé Crenshaw, AAPF Executive Director.

In his concurrence, Justice Clarence Thomas telegraphed what those in the movement already knew: the Supreme Court will not just stop at overturning Roe v. Wade. They are going to come after every legally settled right and precedent previously set by the Supreme Court that protects marginalized Americans. They will take away the right to access contraception. They will take away the right to protections from workplace harassment for LGBTQ+ Americans and the right to gay marriage.

To fight back we must avoid the mountains of recrimination in the days that will seek to blame one constituency, condition, or individual for this moment. To see the scale of this threat clearly—and to meet it with a single unified movement for intersectional justice and equity—we must understand that this is the outcome of a sustained ideological initiative on the right to unravel core democratic freedoms—racial equity, gender justice, and individual liberty—all in one intellectual, judicial, and political revolution.

Every time we have collectively failed to see how the fabric of our collective existence is tied to the protections of our freedoms has been a moment that has contributed to this profound loss. The reality is that this attack on our body politic has metastasized over a generation, leading to the current state of minority tyranny of the will of the majority of voters. The upshot is that this undemocratic, unelected body has aligned itself with a radical right agenda that is driving us to the brink of autocracy.

No unelected body should have the power to strip people of their human right to autonomy, especially an institution as plagued by controversy, illegitimacy, and naked partisanship as the United States Supreme Court. When we demand bodily autonomy, we do not just mean over our reproductive organs—we mean autonomy from the violence of the state and extrajudicial killings by the police; we mean autonomy over our gender and our sexual experiences; we mean autonomy over our families and the right to raise our children in safe and supported communities.

We at AAPF strongly believe that the post-slavery amendments to our Constitution gave us the guiding principles to achieve our aspirations for a multiracial society, free from the illiberties, coercion, and violence that characterized our first founding. It is the vision of these, the second founders—the men and women who fought for freedom and who loosened the grip of enslavement and tyranny—that must guide us in the coming years.

The struggle ahead of us will be one of the most difficult we have faced as a nation. We are committed to this fight, and we hope you will be there with us.

Support Black women in the South

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After Dobbs, Are Rights for Zygotes, Embryos, and Fetuses Next?

By Cynthia Soohoo, Professor of Law and the Co-Director of the Human Rights and Gender Justice Clinic at CUNY School of Law

This article was originally published at the CUNY Law Review Blog and has been republished here with permission.

After Dobbs, Are Rights for Zygotes, Embryos and Fetuses Next? by Cynthia Soohoo (June 29, 2022)

Justice Alito’s decision overturning Roe v. Wade and Planned Parenthood v. Casey marks a watershed shift in the way that the country treats people who are pregnant versus an “unborn life.” By stripping constitutional protection from the decision to have an abortion, Dobbs v. Jackson Women’s Health Organization equates pregnant people’s right to control their bodies and the state’s interest in protecting prenatal life.

Without a recognized constitutional right to abortion as a backstop, Dobbs specifically paves the way for states to impose their theory of when a human life begins and push for recognition of personhood for fetuses, embryos, and zygotes. Not only will this result in some states banning abortion from conception and treating abortion as homicide, it also threatens some forms of contraception and in vitro fertilization (IVF).

One recurring theme in Alito’s majority opinion and Justice Kavanaugh’s concurrence is that there are “two sides” with strong views on abortion. The argument goes that because there are strong opposing opinions on abortion, the issue should be left “to the people and their elected representatives” with individual states (or Congress) determining how to value prenatal life verses the rights of pregnant people. While there is superficial appeal to the “two sides” argument, it improperly equates one group’s beliefs about when human life begins with the concrete harms imposed on pregnant people.

It also obscures the real issue. We don’t all get a vote on what happens to someone else’s body. As Justices Breyer, Kagan, and Sotomayor write in the joint dissent, “when it comes to rights, the Court does not act ‘neutrally’ when it leaves everything up to the States. Rather the Court acts neutrally when it protects the right against all comers.”

Cleverly cloaked in originalist arguments and claims about democracy and judicial neutrality, at bottom, the Dobbs decision is about the expansion of state power and control. Alito admits as much when he criticizes Roe and Casey for allowing “States less freedom to regulate abortion” than in other countries. (emphasis added). Alito’s opinion gives states enormous power to use a belief about when human life begins to take dominion over a person’s body, forcing them to endure a pregnancy, give birth, and become a parent.

The Disappearing Rights and Shrinking Personhood of Pregnant People

Recognizing the fundamental liberty at stake in the abortion decision, the Supreme Court explicitly rejected the “two sides” argument 30 years ago in Planned Parenthood v. Casey. In doing so, the Court carefully considered how to balance the state’s interest in protecting prenatal life and the individual liberty and autonomy rights at risk. While the Court eliminated the trimester framework established in Roe, giving states more power to regulate abortion to protect fetal life, Casey emphasized that a pregnant person must retain the ultimate decision of whether or not to continue a pregnancy. Until the Dobbs decision, this meant a state could not ban abortion outright or impose regulations that impose an undue burden prior to fetal viability.

To justify scrapping Casey’s careful balancing of individual rights with government interests, Alito’s opinion scrupulously avoids any serious discussion of the rights of pregnant people or the implications of allowing the government to impose forced pregnancy. Instead of recognizing that allowing states to ban abortion imposes a real and substantial harm, Justice Alito downgrades the fact of a state’s invasion of a pregnant person’s liberty and autonomy to a “feeling” that “regulation of abortion invades a woman’s right to control her own body, and prevents women from achieving full equality.” He then suggests that this “feeling” is on par with the fervent belief “that a human person comes into being at conception and that abortion ends an innocent life.”

Alito also refuses to acknowledge that reproductive autonomy is a basic and fundamental liberty for people with the capacity to become pregnant. Rather than engaging in an honest discussion of what personal liberty requires for a body with a uterus, Alito hides behind a historic reading of the Fourteenth Amendment based on state laws that were passed in the 1860s when women could not vote and were not viewed as persons fully protected by the Constitution.

Paving the Way for Personhood for Zygotes, Embryos, and Fetuses

Even as Dobbs demotes people who can become pregnant from the status of full rights holders, it paves the way for states to promote the rights of zygotes, embryos, and fetuses at the expense of people who will be forced to carry them. (A zygote is a fertilized egg. It becomes an embryo10-12 days after fertilization and a fetus eight weeks after fertilization.) In 1973, Roe explicitly rejected Texas’ argument that the Constitution recognizes the unborn as a “person” with rights protected under the Fourteenth Amendment.

However, as argued in many of the amicus briefs submitted to the Court in Dobbs, constitutionally prohibiting abortion through the recognition of personhood for zygotes, embryos, and fetuses remains a long-term goal for the anti-abortion movement. Alito’s decision will likely encourage these arguments in courts and legislatures.

While the Dobbs decision declines to directly take on the personhood issue, religious and moral views about the status of zygotes, embryos and fetuses creep into the decision’s language and reasoning. Rather than discussing the state’s interest in potential life like past Supreme Court decisions, Justice Alito explicitly imports Mississippi’s belief that a fetus is a human being into the decision’s reasoning. He argues that abortion is different from other constitutionally protected decisions around intimate sexual relations, contraception and marriage, because abortion is a “critical moral question” that involves destroying what the statute describes as “an unborn human being.”

Alito even chides the dissent for imposing their “theory about when the rights of personhood begin” for adhering to the Roe and Casey standard. Alito’s criticism reveals his own assumptions about fetal life as he bemoans that under the Roe/Casey standard, states were prohibited from recognizing a fetus’ “most basic human right – to live” prior to viability. (emphasis added).

For now, Alito claims that the Dobbs decision “is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” But even absent the Court’s explicit recognition of rights for prenatal life, Dobbs opens the door for states to do so without constitutional restraints. Roe recognized that there are widely divergent views on when life begins and held that the state cannot “adopt[] one theory of life [and] override the rights of the pregnant woman.” In order to prevent this outcome, Roe and Casey explicitly declined to adopt a theory of when life begins, but recognized fetal viability as the point at which the state’s interest in fetal life rose to the compelling level necessary to justify banning abortions.

This meant that while states could pass laws protecting prenatal life prior to viability,the constitutional rights of pregnant people to liberty and bodily autonomy limited how far the state could go. Now that Dobbs has stripped away this constitutional protection, a state need only show that a law passed to protect prenatal life bears a rational relation to a legitimate state interest to withstand judicial scrutiny. Further, without the viability line, states can bestow heightened protection and rights to prenatal life at any stage without any consideration about the impact on the bodies and lives of the people who carry them.

What Does Personhood for Zygotes, Embryos, and Fetuses Look Like?

The idea that states may seek to promote legal personhood for zygotes, embryos, and fetuses may seem farfetched. But for decades, states have passed laws to protect and, in some cases, bestow rights onto the “unborn” by recognizing them as human beings or even legal persons. These laws are often referred to as fetal personhood provisions, but the term is a misnomer because the provisions go beyond protecting fetuses and typically protect the “unborn” from conception or fertilization. Personhood provisions vary and include legislative findings, policy statements, and definitions for specific statutes, including criminal homicide laws, and general personhood provisions that purport to apply to all laws in the state.    

The idea that the zygotes, embryos, and fetuses are independent human beings is often included as a finding or definition in legislation to justify extreme abortion bans. For instance, in 2019, Georgia passed an act that included both a general personhood provision recognizing unborn children defined as “a member of the species Homo sapiens at any stage of development who is carried in the womb” as “natural persons” under Georgia law and a separate provision banning abortion at six weeks. In 2021, Arkansas passed the “Arkansas Unborn Child Protection Act” and in 2019, Alabama passed the “Human Life Protection Act,” both banning abortion from conception.

The laws cited provisions in their state constitutions adopting policies protecting the life (Arkansas) and rights (Alabama) of unborn children and made legislative findings or defined embryos and fetuses as human beings. Because these laws clearly violated the constitution, they were quickly blocked by the courts and never went into effect. Immediately after the Dobbs decision, a federal court granted an emergency motion dissolving the injunction stalling the Alabama law. Similar motions will likely follow in Arkansas and Georgia.

If we want to understand what laws might look like now that legislatures no longer have to comply with Roe, the abortion bans passed by Alabama and Arkansas, as well as similar bans recently passed by Oklahoma and Louisiana, provide good examples. These laws ban abortion at conception and do not include any exceptions for pregnancies that result from rape or incest.

These measures reflect an absolutist view that embryos and fetuses are human beings that must be protected irrespective of the impact on the people who carry them. International human rights bodies have recognized that forcing a person to continue a pregnancy in such circumstances constitutes cruel, inhuman and degrading treatment. Perhaps reflecting the view that zygotes, embryos, and fetuses are human beings, the laws also impose severe criminal penalties for performing abortions, including sentences ranging from 10 to 99 years and criminal fines ranging from $100,000-200,000.

In addition to explicit criminal abortion bans that will either be triggered, passed, or no longer enjoined now that Roe has been overturned, personhood provisions that already exist in the laws of many states will no longer be limited by constitutional protections for abortion. Many state criminal statutes already define homicide victims to include zygotes, embryos, and fetuses. Dobbs potentially authorizes the use of these criminal homicide statutes to prosecute people who perform abortions.

It is not just abortion that is under threat. As pointed out by the joint dissent, Alito’s cramped, backward-looking reading of liberty places constitutional protection for contraception and same-sex marriage squarely at risk. Justice Thomas explicitly invites reconsideration of Griswold, Lawrence and Obergefell in his concurrence. But even absent further unravelling of constitutional precedents, the Dobbs decision opens the door for attempts to ban forms of contraception that may prevent implantation of a fertilized egg based on embryonic personhood claims. Laws banning or limiting IVF to prevent the creation of embryos that are not implanted will also become more prevalent.

Since 1973, Roe v. Wade prevented the state from imposing its views about the value of prenatal life and the role of women in society on individuals. While Casey expanded states’ ability to regulate abortion, it recognized that prior to fetal viability the state’s interest in prenatal life cannot override “the urgent claims of the woman to retain the ultimate control over her destiny and her body.”

Together, Roe and Casey placed important limits on state power. By stripping away constitutional protection for abortion and erasing the viability line, Dobbs v. Jackson resets the constitutional balance between pregnant people and the claims that the state can make on their bodies on behalf of prenatal life. In doing so, it opens the door for zygotes, embryos, and fetuses to gain rights even as pregnant people lose them.

What Else is “Egregiously Wrong”?

By Martha F. Davis, University Distinguished Professor, Northeastern University School of Law, co-director, Program on Human Rights and the Global Economy

Reading Justice Alito’s opinion in Dobbs v. JWHO, I was struck by the reference to Geduldig v. Aiello (1974).  In dismissing the possibility of an equal protection challenge to abortion restrictions, the Dobbs majority opined that no heightened equal protection review would be available to scrutinize abortion policies because Aiello and its progeny made clear that pregnancy discrimination was not a type of sex discrimination.  Aiello concerned California’s failure to include pregnancy as a compensable disability in its unemployment insurance program.  In contrast, the law compensated men for disabilities caused by ailments and procedures that affected men alone: for example, vasectomies, circumcision, and prostatectomies.  Here is a key passage from that case:

"While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed, and Frontiero. . . . Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition."

We now recognize a broader range of people who may experience pregnancy, but Aiello’s ruling still stands for the proposition that the disparate impact of abortion restrictions on women does not matter, absent proof of invidious discriminatory intent.

Just how difficult it is to prove the requisite intent was made clear in the case of Bray v. Alexandria Women’s Health Clinic (1993).  There, the claim made was that the anti-abortion group Operation Rescue, which engaged in massive and often violent clinic blockades, acted with invidious discriminatory intent in violation of the Ku Klux Klan Act, 42 U.S.C. s. 1985(3).  John Roberts (yes, that John Roberts) appeared on behalf of the U.S. government to argue in support of Operation Rescue.  Justice Scalia’s opinion for the Court rejected the idea that the violent protests directed against people seeking abortions could be connected to sex discrimination.  Wrote Scalia:

"Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews. But opposition to voluntary abortion cannot possibly be considered such an irrational surrogate for opposition to (or paternalism towards) women."

The Bray case dealt with a private conspiracy that aimed to, but realistically could not, shut off all possibility of obtaining an abortion.  But a law like that recently enacted in Oklahoma, that completely bans the choice to have an abortion, goes beyond mere opposition.  Isn’t it tantamount to a ban on yarmulkes?  Isn’t it impossible to disentangle any “good faith” motive – credited by Justice Scalia -- from the means employed in Oklahoma and other states, which deny women decision making authority over their own bodies?  Isn’t this the very definition of paternalism?

In 2012, Justice Ginsberg raised the alarm over the Aiello decision in her dissent in Coleman v. Maryland Court of Appeals.  The case involved the Family and Medical Leave Act, specifically whether in enacting the law, Congress was addressing a pattern of state constitutional violations that would support Congress’s abrogation of state sovereign immunity with respect to the FMLA’s self-care provision.  The majority said no, that because both men and women took medical leave, Congress was not responding to evidence of sex discrimination by the states.

 Justice Ginsburg, however, recognized the unique risks of discrimination faced by pregnant employees.  According to Justice Ginsburg, "‘childbearing is not only a biological function unique to women. It is also inextricably intertwined with employers’ stereotypical views about women’s commitment to work and their value as employees.’ Because pregnancy discrimination is inevitably sex discrimination, and because discrimination against women is tightly interwoven with society’s beliefs about pregnancy and motherhood, I would hold that Aiello was egregiously wrong to declare that discrimination on the basis of pregnancy is not discrimination on the basis of sex."

In recent years, we have seen other Supreme Court dissents gradually transform into majority opinions.  Importantly, Aiello has been almost uniformly rejected by state courts when they consider whether the disparate impact of pregnancy discrimination on women constituted sex discrimination.  The Aiello opinion has been repeatedly criticized by scholars.  The approach has been rejected internationally.  It has been substantively cited by the U.S. Supreme Court only a few times.  It is, to invoke Justice Alito’s Dobbs language, “exceedingly weak.”  As long as precedents are on the chopping block, perhaps Aiello should be the next to fall.

UN Commissioner for Human Rights Comments on US Supreme Court Decision in Dobbs v. Jackson Women’s Health

In light of the recent Supreme Court decision in Dobbs v. Jackson Women’s Health, the UN Commissioner for Human Rights Michelle Bachelet made the following comment on June 24, 2022:

The US Supreme Court ruling on Dobbs v. Jackson Women’s Health Organization delivered today represents a major setback after five decades of protection for sexual and reproductive health and rights in the US through Roe v Wade.

It is a huge blow to women’s human rights and gender equality.

Access to safe, legal and effective abortion is firmly rooted in international human right law and is at the core of women and girls’ autonomy and ability to make their own choices about their bodies and lives, free of discrimination, violence and coercion.

This decision strips such autonomy from millions of women in the US, in particular those with low incomes and those belonging to racial and ethnic minorities, to the detriment of their fundamental rights.

More than 50 countries with previously restrictive laws have liberalized their abortion legislation over the past 25 years.

With today’s ruling, the US is regrettably moving away from this progressive trend.

The High Commissioner's full comments can be found here.

Justice Thomas Reveals the Agenda

By Margaret Drew

"When someone shows you who they are, believe them the first time."

Maya Angelou

 

The devasting Dobbs decision released last Friday revealed a new depth of anti-female activism in our country.  The ultra-conservative justices disregarded women’s autonomy and human rights. Justice Roberts would have imposed limits short of Roe reversal, but the result would have been the same in denying choice to women. The decision imposes the religious and moral views of the justices, disregarding the mental and physical health of women and the difficult circumstances that lead them to consider abortion.  The decision forebodes further restrictions on human and civil rights. Don’t believe the majority opinion when Justice Alito assures that other rights are not in danger.   Unless he has not read Justice Thomas’ separate opinion, Justice Alito knows better of the challenges ahead for vulnerable populations.

Justice Thomas’ concurrence revealed what pro-choice advocates feared.  The agenda to further gut the civil and human rights of women and sexual minorities is imminent.  Thomas confirms that many of the vexing issues for ultra-conservatives involve sex and sexual identity.  He notes Griswold, Lawrence, and Obergefell.   All these cases address sexual and/or reproductive freedom.  The result of the reversal of the cited cases will be to further disempower women, particularly women of color and poor women, and all members of the LGBTQ+ community. For reasons to be explored later, Obergefell is particularly vulnerable.

With Roe reversed, and the right of privacy seriously injured, the Court will seek to reverse cases that are based on the right to privacy.   Certain cases, that is. All dealing with “non-straight male” sexuality.  Justice Thomas invited the litigation.

His agenda is revealed.

DOBBS SYMPOSIUM

A reminder to our readers and contributors, that we are accepting law professor posts on the DOBBS decision.

We hope to hear from you on this critical human rights concern. Please send to mdrew1@umassd.edu and write “Symposium” in the subject line.

Thank you,

Lauren

 

 

 

Event: ILA 80th Biennial Conference – June 19-24 in Lisbon, Portugal

Next week the International Law Association kicks off its 80th Biennial Conference, taking place in Lisbon from June 19-24 and organized by the Portuguese branch. The program includes the sessions of the ILA committees and study groups, and a set of parallel working sessions where the main issues affecting the present status of the International Law will be discussed. Sessions related to Human Rights include:

• ILA Committee Meetings:

o Human Rights in Times of Emergencies - Chair: Jennifer Tridgell, UN Special Rapporteur on Freedom of Religion or Belief, Australia. 

o International Migration and International Law - Chair:Eva Tzavala, Greek National Commission for Human Rights, Working Group on Asylum & Migration, European Network of National Human Rights Institutions. 

o Global Health Law - Chair: Leila Sadat, Washington University School of Law, USA. 

o Participation in Global Cultural Heritage Governance - Chair: Jie (Jeanne) Huang, Centre for Asian & Pacific Law, Sydney Law School, Australia. 

• Themed Panels (More information on panelists can be found here):

o Human Rights in Times of Emergencies.

o Global Health Law in a Deteriorating Environment. 

o Migration – Human Flows: Towards a New Normal?

o Current Issues on Business and Human Rights. 

o Developments in Atrocity Prevention, Investigation and Prosecution. 

o Cultural Heritage, Global Health, and Peace and Security.  

• ILA Study Groups on Asian State Practice of Domestic Implementation of International Law, International Law of Regional Organizations, the Role of Cities in International Law. 

For more information regarding the ILA’s Conference’s program and panelists, download the detailed program here.

IACHR 184th Period of Sessions June 21-24, 2022

The Inter-American Commission on Human Rights (IACHR)has announced the schedule of hearings to take place as part of its 184th Period of Sessions. There will be 20 public hearings regarding human rights issues in OAS member states from June 21 - June 24, which will be livestreamed via Zoom and the IACHR’s official Facebook, YouTube, and Twitter accounts. More information about the full list of hearings can be found here.

 

Friday June 24th from 2-3:30pm ET, the United States will participate in one of these hearings, which will follow up on the recommendations of 9 cases with published merits reports and 16 precautionary measures on the death penalty and death row in the U.S. In addition to the U.S.’s representative, the other participants will be Loyola Law School, American University, the Mexican Capital Legal Assistance Program, Cornell Law School, Jordan German, and Francisco Serrano. The webinar registration link can be found here.

 

 

ILO Meets to Discuss Occupational Safety and Health for Workers Around the World

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

This week and last week, the International Labour Organization (ILO) is holding the 110th International Labour Conference, where governments, employers’ organizations and trade unions from the 187 member States of the ILO meet to discuss, among other important questions, the issue of occupational safety and health as a Fundamental Principle and Right at Work. The issue of occupational safety and health for workers came to the forefront of the agency’s priorities with the onset of the COVID-19 pandemic, which resulted in workers around the world being forced to work in conditions which put them in danger of contracting the potentially deadly virus. If it is decided that the effective protection of safe and healthy working conditions is a fundamental right, a 5th category of rights will be added to the 1998 Declaration on Fundamental Principles and Rights at Work. 

So, what could this mean for the United States? The U.S. has been a member state of the ILO since 1934, Since then, the U.S. has become an integral member of the organization and ratified 14 conventions of the ILO, two of which fall under the “fundamental” category.  If the new category is added to the Declaration, the U.S. will be expected to “respect, promote, and realize in good faith” the right of all workers to be protected against illness, disease, and injury arising out of employment.  

For the ILO’s part, its stance appears clear. In an about the topic, its spokesman said, “The lack of safe and healthy working environments can no longer be tolerated. There is no right more important than the right to life.”

Much of this information was compiled from: https://ohrh.law.ox.ac.uk/occupational-health-and-safety-as-a-fundamental-principle-and-right/

Event 6/9: Hybrid Celebration of United Nations World Oceans Day

On June 9, 2022, from 10am-1pm EDT, join the United Nations Division for Ocean Affairs and the Law of Sea, Office of Legal Affairs for a free event both online and in-person at the UN Headquarters in New York.  The theme of the event is REVITALIZATION: Collective Action for the Ocean, and it plans to shed light on communities, ideas, and solutions that are working together to protect and revitalize the ocean and everything it sustains.  For more information on the event, see the schedule here.

The leading topics for the day are:

• Nature-based Solutions
• Science & Innovation
• Cross-sector & Cross-discipline Collaboration
• Biodiversity & Resilience
• Local & Indigenous Knowledge
• Community & Collaborative Efforts
• Blue Economy, Responsible Management & Finance

Attendees can join in person or online. To register for this event online, click here. To register for this event in person, click here.

News: IACHR Statement on the Mass Shooting at Elementary School in Uvalde, Texas, United States

On June 1, 2022, the Inter-American Commission on Human Rights (IACHR) released this statement condemning the mass shooting at an elementary school in Uvalde, Texas, where 21 people—19 children and two teachers—lost their lives. In the face of this tragedy, the IACHR sent its condolences to the families of the victims, as well as to survivors of the shooting and to anyone who may have been affected by these events. The IACHR urged the federal authorities and the state of Texas to comprehensively investigate what happened and its underlying causes and take immediate legislative action to prevent gun violence.

The IACHR noted that the shooting in Uvalde happened just 10 days after the one in Buffalo, New York, where a man attacked a supermarket in a predominantly African American community and killed 10 people.  Additionally, the IACHR noted with particular concern that according to Gun Violence Archive—an independent research and data collection organization—, during 2021, 690 indiscriminate mass shootings occurred, that resulted in multiple murders and injuries. So far in 2022, at least 213 events of this nature have been recorded.

The IACHR noted that the current federal administration has adopted measures to control gun violence, mainly through the implementation of executive orders. In this context, the Commission reiterated its call on the U.S. government to adopt urgent and effective legislative measures, to eradicate the series of armed violence in the country, such as effective gun control. It has been noted that many scientific studies, conducted over several decades and comparatively, show that factors that lead to violent environments include easy access to firearms and therefore, a high number of weapons in the hands of individuals.

In order to prevent human loss, the IACHR stated that it is essential for the United States to implement more restrictive laws to control the possession and carrying of weapons. This includes restrictions concerning assault weapons, like the AR-15 type rifle used in this and other attacks, including the one that took place on October 1, 2017 in Nevada. Further, the IACHR urged the U.S. to take effective action to enable greater supervision of the issuance of licenses, registration requirements, and access to ammunition.

To read the IACHR's full statement, visit https://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/media_center/PReleases/2022/122.asp.

New Article: Can Social Media Corporations be held Liable Under International Law for Human Rights Atrocities?

Juliana Palmieri, Can Social Media Corporations be held Liable Under International Law for Human Rights Atrocities?, Pace International Law Review, Volume 34, Issue 2 (May 2022). Abstract below.

This article examines the relevant international law associated with genocide and hate speech and examines whether there are any legal grounds to hold a corporation liable for how people chose to use its product or service in relation to human rights violations. The analysis begins with a brief overview of international criminal and human rights law, relevant treaties, jurisdictional issues, and the legal theories of corporate criminal liability and complicity. Because current international law provides no clear answer, this article proposes that international courts use a balancing test which evaluates a non-exclusive list of ten main factors.

 

New Article: Children's Rights and Human Rights Education Through Museums

Jonathan Todres and Anissa Malika, Children's Rights and Human Rights Education Through Museums, Boston University Public Interest Law Journal, Vol. 31, No. 3, pp. 239-274 (2022). Abstract below.

Human rights education has been recognized as critical to the advancement of human rights and the promotion of rights-respecting communities. Despite its value, many countries have lagged in their efforts to implement human rights education programs. Where human rights education has gained traction, it has been largely centered around school-based learning. For human rights education to be successful, policymakers and practitioners need to be creative in exploring diverse ways to implement and advance human rights education. This Article argues that it is critical for human rights education and, more specifically, children’s rights education to expand beyond classroom-based learning opportunities to take advantage of other spaces where young people spend time and where education about rights is possible. Given the value of the arts as a vehicle for expressing and advocating for human rights, this Article explores the role that museums might play in advancing human rights education for children. Museums are important fixtures in many cities and towns across the globe. In the United States, nearly 60% of the population visits a museum at least once a year. This gives museums broad reach and the potential to make human rights widely known. Further, shifts currently occurring within museums suggest this is a particularly important time to consider the role of museums vis-à-vis human rights. Many museums are becoming more focused on social justice issues. This evolution occurring in many museums highlights an opportunity for greater and deeper engagement among museum professionals, educators, and human rights researchers and advocates. This Article makes the case for growing and deepening such partnerships. It emphasizes the importance of attention to children’s rights and ensuring that all museums, not just children’s museums, consider their role in engaging young people on the topic of human rights.

New Article: Regulatory Responses to ‘Fake News’ and Freedom of Expression: Normative and Empirical Evaluation

Rebecca K Helm and Hitoshi Nasu, Regulatory Responses to ‘Fake News’ and Freedom of Expression: Normative and Empirical Evaluation, Human Rights Law Review, Volume 21, Issue 2, (June 2021). Abstract below.

National authorities have responded with different regulatory solutions in attempts to minimise the adverse impact of fake news and associated information disorder. This article reviews three different regulatory approaches that have emerged in recent years—information correction, content removal or blocking, and criminal sanctions—and critically evaluates their normative compliance with the applicable rules of international human rights law and their likely effectiveness based on an evidence-based psychological analysis. It identifies, albeit counter intuitively, criminal sanction as an effective regulatory response that can be justified when it is carefully tailored in a way that addresses legitimate interests to be protected.

New Article: Human Rights Council's Universal Periodic Review as a Forum of Fighting for Borderline Recommendations? Lessons Learned from the Ground

Kazuo Fukuda, Human Rights Council's Universal Periodic Review as a Forum of Fighting for Borderline Recommendations? Lessons Learned from the Ground, 20 Nw. J. Hum. Rts. 63 (2022). Abstract below.

Highly acclaimed as a key innovation of the United Nations Human Rights Council, the Universal Periodic Review (UPR) was created in 2006 as a cooperative, peer-review mechanism to shift away from the highly politicized Commission on Human Rights. Despite the significance and hope attached to the UPR, it has been conspicuously under-examined in the U.S. legal scholarship. And most relevant literature elsewhere has avoided directly addressing the fundamental question of exactly what the UPR’s added value is to the global human rights regime in terms of its direct contribution to improving human rights situations on the ground. This is mainly due to methodological and analytical challenges to measure the impact of the UPR in isolation from other existing human rights mechanisms. While acknowledging such challenges, this article attempts to provide one such answer to the question from a normative perspective: it argues that the UPR’s added value lies in providing a forum to incrementally and constantly challenge the threshold of states under review for accepting their commitment to addressing controversial human rights issues. Drawing from the experiences of the Lao People’s Democratic Republic and other countries as well as the literature on peer pressure and acculturation, this article articulates the current issues of the UPR mechanism in terms of recommendations given to states under review by their peers and suggests the way forward for the UPR mechanism by reframing it as a forum of fighting for borderline recommendations.

Event 6/9: PHRGE Symposium on the Right to a Healthy Environment in US Law: Justice for Communities Today and Tomorrow

Northeastern Law’s Program on Human Rights and the Global Economy (PHRGE) is hosting an online symposium/CLE entitled the Right to a Healthy Environment in US Law: Justice for Communities Today and Tomorrow, which will be held on Thursday, June 9, 2022, from 1:00 - 4:30 ET on Zoom.

To register, visit: https://law.northeastern.edu/event/phrge-symposium-2022/

New Article: Climate Competence: Youth Climate Activism and Its Impact on International Human Rights Law

Aoife Daly, Climate Competence: Youth Climate Activism and Its Impact on International Human Rights Law, Human Rights Law Review, Volume 22, Issue 2 (June 2022). Abstract below.

Those who are under-18 are not often associated with the exercise of political rights. It is argued in this article however that youth-led climate activism is highlighting the extensive potential that children and young people have for political activism. Moreover, youth activists have come to be seen by many as uniquely competent on climate change. Youth activists have moved from the streets to the courts, utilising national and international human rights law mechanisms to further their cause. They are not the first to do so, and the extent of their impact is as yet unclear. Nevertheless, it is argued here that through applications such as Saachi (an application to the Committee on the Rights of the Child) and Duarte Agostinho (an application to the ECtHR) they are shifting the human-centric, highly procedural arena of international human rights law towards an approach which better encompasses person-environment connections.

New Article: The Draft Convention on the Right to Development: A New Dawn to the Recognition of the Right to Development as a Human Right?

Roman Girma Teshome, The Draft Convention on the Right to Development: A New Dawn to the Recognition of the Right to Development as a Human Right?, Human Rights Law Review, Volume 22, Issue 2 (June 2022). Abstract below.

The draft Convention on the Right to Development is being negotiated under the auspices of the Human Rights Council. This article seeks to explore the merits and the added value of the draft in terms of its normative contents particularly compared with its soft law predecessor—the Declaration on the Right to Development. It argues that the draft is a momentous step in the recognition of the right to development as a human right not only because it is binding, if adopted, but also contains concrete, detailed and implementable norms. While it maintained the abstract and aspirational formulation of norms under the Declaration to a certain extent, the draft also addresses some of the prevailing gaps and limitations of the Declaration.

 

Abortion and Human Rights Resources

The Northeastern University School of Law Program on Human Rights and the Global Economy (PHRGE) has put together the following resources in light of the recently leaked SCOTUS draft opinion:

• Center for Reproductive Rights, Map of the World's Abortion Laws
• Center for Reproductive Rights, International Human Rights and Abortion: Spotlight on Dobbs v. Jackson Women’s Health (November 24, 2021)
• Amicus Curiae Brief written on behalf of the UN Special Rapporteur on the Right to Health and other UN mandate holders in Dobbs v. Jackson Women’s Health Organization (September 20, 2021)

Event 5/11: Universal Jurisdiction: Controversies and Opportunities

Wednesday, May 11, 2022 - 11:00am to 12:00pm ET, online.

Universal Jurisdiction is the doctrine that some offenses (such as atrocity crimes: genocide, war crimes, and crimes against humanity) are so heinous that they can be prosecuted by any country's domestic judicial system, even if the offenses were not committed on that country's territory, by one of its nationals, or against one of its nationals.

Given the dearth of options to prosecute atrocity crimes and the willingness of some domestic judicial systems to try cases with no nexus to their country's territory, Universal Jurisdiction has recently become a more popular and accepted mechanism for seeking justice for international crimes. This ASIL webinar will explore the history and controversies of Universal Jurisdiction and consider opportunities for contemporary case studies (including Russia-Ukraine and Syria).

Speakers:

• Balkees Jarrah, Interim Director, International Justice, Human Rights Watch
• Wolfgang Kaleck, General Secretary, European Center for Constitutional and Human Rights
• Zachary D. Kaufman, Associate Professor of Law and Political Science and Co-Director, Criminal Justice Institute, University of Houston Law Center

For more information and to register for this free event, visit https://www.asil.org/event/universal-jurisdiction-controversies-and-opportunities.E