Friday, February 28, 2014
The NUSL Program on Human Rights and the Global Economy and the Opportunity Agenda recently issued an updated version of the publication Human Rights in State Courts. I worked on the project and supervised much of the research. The publication is available on here and on the Opportunity Agenda website. This is the third edition of the publication
I was interested to see how widespread citation of international law is now among state courts. Practically every jurisdiction has published opinions considering the Hague Convention on the Civil Aspects of International Child Abduction, the Hague Service Convention and the Vienna Convention on Consular Relations (VCCR). While citation of the core human rights norms and documents is less common, there were still some important examples of judges citing these norms to support, for example, a right to education or disability rights. Death penalty litigators cite human rights norms in most cases. While courts typically dismiss these claims, that's not always the case. And in a recent case in Massachusetts, the Supreme Judicial Court cited international human rights law to support additional limitations on juvenile life without parole. Check out the report for the cites to these and other cases.
As a new addition this year, we surveyed Attorney General opinions. Surprisingly, there were a number that cited international law in general and human rights norms in particular. Many of the AG opinions seemed to arise from a political agenda. For example, a legislator in Texas asked the Texas AG repeatedly about the application of the VCCR in every case involving a foreign national, even though the answer was the same every time. In Tennessee, a legislator asked the AG about the constitutionality of a law barring UN election monitors from the state; the AG said that the Supremacy Clause as well as US treaty obligations would render the law unconsitutional. While none of these AG opinions result in a change in the law, they do suggest that legislators themselves are increasingly sensitive to international human rights obligations.
There's a substantial sociological literature on how courts participate in social change efforts, including implementation of human rights norms. The expanded use of human rights arguments in litigation, in cases from family law to environmental law to the death penalty to disability rights, appears to be an important first step toward broader education and awareness around this body of law, and an important aspect of a "human rights at home" movement. As judges cite core human rights documents more often, albeit in concurrences and dissents, I expect that we will see more judicial (and legislative) dialogue drawing on human rights in the future. By demonstrating the growth in litigation addressing international law and human rights, the Human Rights in State Courts report suggests that this is an ongoing process.
Wednesday, February 26, 2014
Welcome to Human Rights at Home, the latest addition to the LawProfs Blog series!
We are thrilled to be launching this blog!
Over the past two decades, domestic U.S. law has become more intertwined than ever with international human rights norms. Courts and legislatures are increasingly confronting human rights arguments, and government actors from the local to the federal level are increasingly active in developing these norms internationally. As law professors, we not only study these developments but may also participate in them, often acting as human rights advocates or catalysts for change. We also engage our students in human rights analysis and advocacy efforts, through law school clinics, research projects and classroom readings. This blog aims to serve as a forum for exchanging information and insights relevant to all of the many ways in which law professors and scholars are active in this area, from teaching to advocacy to scholarship.
As Blog Editors, we will post our own contributions while also coordinating the contributions of the many co-editors around the country who have agreed to contribute to this shared endeavor. We look forward to many lively exchanges. Please encourage friends,colleagues, students, and advocates to subscribe to this blog for frequent updates and to participate in the exchanges by commenting on posts.
As we begin this blog, we are mindful of the work of our predecessors who participated in the writing of the Universal Declaration of Human Rights, and we are grateful to all of you for your varied and rich contributions toward building a human rights framework in the U.S.
Martha F. Davis