Tuesday, September 30, 2014
In Charles Dickens’ novella, A Christmas Carol, Ebenezer Scrooge discovered the inevitable consequences of his selfish penny-pinching via a guided dream tour from the Ghost of Christmas Yet to Come.
For stridently anti-government Indiana Republican leaders, the trip is easier to arrange. American Airlines will bring them there any day of the week, with a brief stop-over in Miami. I have seen Indiana’s future, and it is Haiti.
Port-au-Prince and the surrounding countryside and villages represent a Tea Party fantasy land, a magical place with a rock-bottom minimum wage for workers, massive deforestation without consequence, privatized infrastructure, and virtually non-existent public safety or government healthcare.
In other words, the manifestation of the Indiana Republican agenda. The party’s 2014 platform includes more than a dozen references to government as bogeyman, identified as “intrusive,” an “impediment,” and “unsustainable.” In the area of employment, the GOP makes its feelings known in a way that applies just as much to the platform’s views on education and the environment: “The proper role for government in this equation is to get out of the way.”
This is not just rhetoric. The party that holds my state’s governor’s office and substantial majorities in both our House and Senate has applied its anti-government philosophy to some very real decisions. Just a few months ago, Republican leaders celebrated a $2 billion state surplus, amassed despite reduced tax revenue. "By living within our means, keeping prudent reserves and identifying areas of potential growth, we can continue to make Indiana the fiscal envy of the nation," announced state auditor Suzanne Crouch.
It turns out “living within our means” translates into a policy of forced reversions that prevent state agencies from spending their full budgets. Is belt-tightening still a virtue when it means that domestic violence prevention funds go unused, home care resources are not provided to seniors, and environmental protection programs are held back? Press releases tout a surplus while sick and disabled Hoosiers go without healthcare, our infant mortality rate is among the worst in the country, and many public schools have been forced to cut back on services.
They avoid spending money on such frivolities in Haiti, too. Pooja Bhatia, a U.S. journalist, wrote in The Daily Beastthat she witnessed the embodiment of small government during her four years living in Haiti. “For most citizens, the state is functionally absent. Those who can afford to do so order water by truck, get electricity by generator, and fly to Santo Domingo or Miami for health care. Those who can’t afford it—and 80 percent cannot—bathe in a shallow stream or carry buckets from afar, light a stubby candle, and see a leaf doctor.”
Is this the Indiana Yet to Come that Republicans want to see? If Scrooge’s ghost was Haitian, he would likely have offered one of his people’s characteristically incisive proverbs. It is a note of Creole caution that could just as easily be directed to Indiana Republicans, enjoying the perks of unchallenged state power even while they dismantle the government they lead.
Ou we sa ou genyen, ou pa konn sa ou rete.
You know what you’ve got, but you don’t know what’s coming.
Fran Quigley directs the Health and Human Rights Clinic at Indiana University McKinney School of Law, and is author of How Human Rights Can Build Haiti (Vanderbilt University Press, 2014).
Monday, September 29, 2014
During the most recent session, the UN Human Rights Council adopted the plan of action for the third phase (2015–2019) of the World Programme for Human Rights Education. The World Programme is an ongoing initiative, structured in consecutive phases, to advance the implementation of human rights education program in all sectors worldwide. Prior phases of the program focused on generating international support for expansion and institutionalization of human rights education, and more recently, education of civil servants and law enforcement officers.
The World Programme’s third phase (2015-2019) is focused on strengthening the implementation of the first two phases and promoting human rights training for media professionals and journalists.
The HR Council Resolution was adopted without a vote, reflecting its broad support. However, the U.S. delegation issued the following statement at the time of the resolution's adoption, attempting to limit the national responsibility in this area:
Explanation of Position: World Program on Human Rights Education
Statement by the Delegation of the United States of America
As Delivered by Ambassador Keith Harper
U.S. Representative to the Human Rights Council
UN Human Rights Council – 27th Session
September 25, 2014
The United States is pleased to join consensus on the resolution on the World Programme for Human Rights Education and thanks Costa Rica and the other sponsors of this resolution for their efforts to achieve consensus.
This resolution underscores the important role human rights education plays in promoting all human rights and fundamental freedoms. Without an understanding of their human rights, people may be unable to effectively exercise them.
Human rights education is thus an excellent tool for raising awareness about human rights. The media and journalists also play an important role in this effort, and in promoting freedom of expression.
Human rights education can also cultivate respect for the human rights of all individuals regardless of, for example, their race, ethnicity, gender, disability status, sexual orientation, or gender identity.
In joining consensus on this resolution, we stress that the United States strongly values human rights education and training. It can be an invaluable tool for the advancement of human rights.
However, we also underscore that the United States joins consensus on this resolution mindful of and consistent with our limited authority at the federal level with respect to education, which primarily is a responsibility of our state and local governments.
In addition, the United States joins consensus on the resolution with the express understanding that it does not imply that States must implement obligations under human rights instruments to which they are not a party.
While it's fair to say that principles of federalism make implementation more complicated, it's also clear that the U.S. has not been vigorous in seeking out opportunities to expand human rights education. A case is point is human rights education for the judiciary, a sector where human rights education would not tread on states' toes.
There is general international consensus that the judiciary should be knowledgeable about human rights law. Indeed, in the Bangalore Principles of Judicial Conduct (2002) specifically provide that "[a] judge shall keep himself or herself informed about relevant developments of international law, including international conventions and other instruments establishing human rights norms." The U.S. has ratified the ICCPR, CERD and CAT, and has signed several other human rights treaties. Yet in the U.S., judges are not routinely trained on these issues. Instead, human rights education is largely left to individual judges and nonprofits such as the American Society of International Law or the Aspen Institute, with limited funds and without the imprimatur of government that would expand their effectiveness in reaching judges.
As the U.S. delegation pointed out, federalism poses special challenges in implementing human rights education in K-12 grades, but there's no excuse for not integrating such education into the training of the federal and state judiciary.
Friday, September 26, 2014
Criminalization of homelessness in the U.S. is increasingly on the radar of the United Nations. On a positive note, this is the result of inspiring advocacy by the National Law Center on Homelessness and Poverty (NLCHP) and their partners, including this report to the U.N. Human Rights Committee. Unfortunately, though, the U.N. is paying attention because in many localities, policymakers see criminalization as a viable way to address homelessness, despite the negative consequences of criminalization.
This week, the ACLU of Boise, Idaho invoked the CERD and ICCPR concluding observations condemning criminalization in an open letter to the Mayor and City Council of Boise, Idaho, one city contemplating a criminalization ordinance.
This letter echoed what many of us – scholars, advocates and government actors – believe: criminalization is not only ineffective; it is inhumane and flouts the basic human rights principles that should drive policy. Unfortunately, that is not the dominant perspective in national news outlets or city halls.
In June, when the Ninth Circuit overturned a criminalization law in Los Angeles, NESRI, WRAP, NLCHP and the Human Rights Institute at Columbia Law School worked with four local human rights commissions to shift the narrative. The Commissions ultimately authored the op-ed below, appearing here for the first time, outlining the harmful impacts of criminalization, highlighting advocacy to eradicate them, and focusing on the dignity and rights of persons experiencing homelessness.
Human Rights Commissions Call for an End to the Criminalization of Homelessness
By The Los Angeles County Human Relations Commission Executive Director Robin Toma and President Kathay Feng; The Seattle Human Rights Commission; The Eugene Human Rights Commission; and The Portland Human Rights Commission
The 9th Circuit recently confirmed that people who have lost their homes and are forced to live in their cars should not be criminally punished for doing so. The decision represents another affirmation of humanity over hostility in the trend against criminalization of homelessness. This trend has been covered nationally, including in the Los Angeles Times editorial ‘Can begging be banned?’ from last October. It began, ‘A war is being waged over panhandling, as cities and states pass tighter and tighter anti-solicitation laws to control transients and deal with chronic homelessness.’ Referencing a 77 year old woman arrested for ‘loitering to beg’ for $1.25 in bus fare, and citing the 100 or so cities that have placed restrictions on panhandling, the editorial emphasized that while perhaps “understandable… it is not acceptable to pass sweeping legislation criminalizing the behavior of individuals who are engaged in peaceful pleas for money or help.”
Sweeping legislation, and an intensely hostile climate, is exactly what many homeless people face in their daily efforts to get by. The Western Regional Advocacy Project’s (April 2013) street outreach fact sheet reveals that between 66-81% of homeless folks surveyed were arrested or confronted by law enforcement for acts such as sleeping, loitering, sitting or lying down. The National Law Center on Homelessness & Poverty’s (2011) report on criminalizing homelessness noted a 7-10% increase in laws banning panhandling, camping, and loitering. As the U.S.-based International Association of Official Human Rights Agencies recognized in a recent resolution supporting homeless bills of rights, ‘criminalization measures penalize necessary, life sustaining activities ... when individuals engage in such behaviors due to their homelessness’.
Stunningly, ordinances preventing the sharing of food – including by church-based organizations serving food to those in need– are being enacted across the country (including in New York City, Philadelphia and Houston) and considered elsewhere (for example, Los Angeles). In the worst recession since the Great Depression, with pervasive poverty – approximately 47 million people are on food stamps and a living wage is increasingly harder to come by – it is unfathomable and immoral to seek to remove access to food from anyone who might be hungry.
Efforts are similarly underway to curtail the availability of safe public spaces. Palo Alto, for example, recently passed an ordinance imposing criminal penalties on those who slept in their cars. Cities are transforming public spaces to make them less and less friendly to transient populations: closing parks earlier; locking public restrooms; and even selectively and aggressively enforcing littering and jay-walking laws. All of these laws discriminate against and target homeless folks.
But criminalizing homelessness does not solve homelessness; only homes solve homelessness. Criminalization measures actually perpetuate homelessness through increasing marginalization, creating arrest records which make it more difficult to obtain employment or housing, and misusing scarce funds to pay more for police, jail, medical and court time than it would cost to simply provide permanent and adequate homes for homeless individuals and families.
We are undeniably facing a domestic human rights crisis as millions of people are unable to live, or are denied, a life of dignity. The local laws and ordinances – often misnamed as "Quality of Life" or "Nuisance Crime Abatement" policies – not only prevent homeless men, women and children from meeting their basic needs; they represent an attack on our collective humanity. As the L.A. Times says, this is not acceptable, and in order for the current trajectory to be reversed, we need to speak out.
As human rights advocates, we believe in fundamental rights for all people, without discrimination. Whenever rights are denied to anyone in our community, it is our duty and our responsibility to educate our communities about human rights, speak out to defend those rights, and make sure that all of us can live in dignity, with our basic needs met. We can ensure this by promoting policies that respect, protect and fulfill all our human rights. Today, as laws target some of the most vulnerable members of our communities – those who are homeless – we are again called upon to do just that.
[Editors' Note: With today's post, we welcome JoAnn Kamuf Ward as a contributing editor to the Human Rights at Home Law Profs Blog!]
Thursday, September 25, 2014
By Lia Lindsey, Kelleen Corrigan & Hayley Glennie
In November, the Committee Against Torture (“the Committee”) will review the United States’ compliance with the Convention Against Torture (“the Convention”) at the 53rd Session in Geneva. Eight years have passed since the previous U.S. review before the Committee, which is the body responsible for overseeing implementation of the Convention by all States parties.
Since 2009, the U.S. Government and the Committee have engaged in preparation for the upcoming review. The process commenced with the Committee’s release of the List of Issues that they requested the U.S. to specifically address. Areas of Committee inquiry included: psychological torture; treatment of detainees held in U.S. territories; efforts to close Guantanamo Bay; non-refoulement; enhanced interrogation techniques; prevention of sexual violence in detention centers; treatment of women in detention; detention of children; prolonged isolation; use of excessive force by law enforcement; and racial profiling. In turn, in 2013, the U.S. Government provided the Committee its combined Periodic Report regarding its views on U.S. compliance with the Convention.
Civil society organizations have also been preparing for the U.S. review to ensure that their unique experiences and areas of concern are included in the discussions about U.S. compliance with the Convention. One way in which advocates have come together is through the work of the Convention Against Torture Taskforce, a project of the U.S. Human Rights Network. Collaborations through Working Groups within the Taskforce have resulted in joint shadow reports on topics relating to alleged violations of the Convention, such as juvenile justice, the death penalty, police brutality, a variety of national security issues, and immigration detention and deportation.
A shadow report submitted by members of the Immigration Detention and Deportation Working Group illustrates this process of human rights allies coming together to use international law to advocate for increased rights protections. Some non-citizens in U.S. immigration detention face a variety of abuses that are in violation of the Convention’s norms. Examples include verbal, sexual, or physical abuse; the prolonged use of solitary confinement; or exposure to other abhorrent conditions of confinement such as the denial of adequate medical and mental health care, severe overcrowding, and a lack of hygienic and sufficient nutrition. Of additional concern are federal policies that allow for the detention and deportation of asylum seekers without adequate due process safeguards. As a result, some non-citizens may face deportation to their countries of origin despite concerns that they could suffer torture or other serious forms of persecution upon return. This joint shadow report calls for change in these and other aspects of U.S. immigration policy and practice that may violate the Convention.
The Committee Against Torture is not the only international entity highlighting concerns of rights violations of non-citizens in the United States. Recently the Inter-American Commission of Human Rights announced a visit to the U.S.-Mexico border to monitor and assess the human rights of unaccompanied children and families crossing the border.
While unfortunate that allegations of human rights abuses against immigrants in the U.S. abound, international bodies and actors have an important role to play in halting acts of torture against non-citizens—including asylum seekers and survivors of torture—and increasing U.S. compliance with the Convention.
Wednesday, September 24, 2014
Carrie Bettinger- Lopez has done it again. You may recall that a previous post discussed the wave of resolutions being passed by cities across the nation declaring freedom from domestic violence to be a fundamental human right. The idea of the resolutions originated with Prof. Carrie Bettinger Lopez of the University of Miami School of Law. Carrie's latest venture was to bring the resolution movement to the federal level. Last week, on the 20th anniversary of the Violence Against Women Act, President Obama signed a proclamation that among other pronouncements stated the following: " [W]e reaffirm the basic human right to be free from violence and abuse."
The past week has been an amazing one for recognizing folks who have made significant contributions to human rights work. Carrie's work gives us another reason to celebrate our successes. As counsel for Jessica Lenahan in her courageous hearing before the Inter-American Commission on Human Rights, Carrie and Jessica brought recognition to Jessica's inability to obtain domestic legal relief from a Colorado town when it failed to enforce a protection order and then denied any liability for the tragic consequences that resulted. Determined to effect change following the Commission's decision, Carrie and Jessica sought ways to implement the historic ruling. One grassroots proposal suggested by Carrie was a series of local resolutions declaring freedom from domestic violence a basic human right. The effort so far has yielded twelve city resolutions. Now the language, thanks to Carrie's efforts, has made its way to the highest federal level.
Congratulations and thank you, Carrie and Jessica, for your inspirational leadership.
Tuesday, September 23, 2014
Guest blogger Dean Jeremy Paul, Northeastern University School of Law, recommends a hot-off-the-presses human rights book. Dean Paul writes:
Co-editors Helena Alviar García (Dean of the Law Faculty at the Universidad de los Andes), and Professors Karl Klare and Lucy Williams of Northeastern University School of Law have assembled an extraordinary collection of scholarly essays into what should become an indispensable volume – Social and Economic Rights in Theory and Practice: Critical Inquiries – just published by Routledge.
This is an accomplishment of tremendous breadth and depth. Far too often scholarship concerning social and economic rights is caught in tired shadow boxing between resolute but respectful adversaries. Proponents of social and economic rights spin compelling and heart-wrenching tales about the need to provide necessities of life such as food, clothing and shelter, to the millions who lack such essentials and thus are unable to participate meaningfully in other aspects of a rewarding life. Critics of the human rights framework seldom choose to engage such contentions. Instead they retreat to safer ground concerning the threat a human rights framework poses to basic structures of government familiar to American constitutional democracy. The editors of this volume simply refuse to allow people to continue to talk past each other.
This new volume goes head on after stale criticisms of social and economic rights. And they do this in three important ways. First, the volume contains much valuable writing, including Karl Klare's opening and Frank Michelman's closing contributions, which convincingly explain how social and economic rights can be seen as essential rather than antithetical to democratic aspirations. Second, the book contains much writing, including Lucy Williams’ contribution, that draws strength from the simple idea of observing how courts around the world have successfully been working with social and economic rights for many years. It's always heartening to see scholars pause to study facts on the ground before reaching definitive conclusions about theoretical impossibilities. Finally, the book adds so much to our understanding by capturing experiences from so many countries with such diverse traditions. Professors Klare, Williams and Michelman are the only Americans. Other scholars featured come from South Africa, India, Canada, Colombia, Brazil, England, Australia, Argentina, and Chile.
This book is a significant achievement, and valuable reading for all global citizens who care about social and economic rights.
Monday, September 22, 2014
The MacArthur Fellows were announced this past week. Three lawyers known to us for their human rights work were among the awardees.
The law school clinic world is abuzz with the news that one of their own was among those honored. Professor Sarah Deer of William Mitchell College of Law is director of the Indian Law Clinic at the school. A citizen of the Muscogee Nation, Prof. Deer has spent her career advocating for Native survivors of domestic and sexual violence. Prof. Deer’s scholarship and advocacy was instrumental in the passage of The Tribal Law and Order Act of 2010 and the 2013 reauthorization of the Violence Against Women Act. The latter restored to tribal nations jurisdiction to prosecute perpetrators who commit crimes of violence against women or who violate a protection order on tribal land. Prof. Deer’s scholarship addresses a range of issues vital to ending violence against women and tribal law.
Director of the Civil Rights Project of the Gay and Lesbian Defenders (GLAD) Mary Bonauto has led the struggle for marriage equality for a large part of her career. She successfully argued the seminal state marriage equality, Goodrich v. Massachusetts Department of Public Health, the case on which the Massachusetts Supreme Judicial Court decided that the right to marry is a civil rights issue and validated same sex marriage. Attorney Bonauto’s strategy of addressing marriage equality one state at the time proved successful as we watch one state after another authorize marriage equality. Her leadership led to the US Supreme Court’s invalidating the Defense of Marriage Act. Read more about Attorney Bonauto here.
Jonathan Rapping transformed the Southern Public Defender Training Center into Gideon’s Promise. Rapping’s mission is to transform public defender practice. Recognizing that defenders are overburdened, Rapping developed a training approach to remedy some of the barriers faced by public defenders. The MacArthur Foundation noted: “Gideon’s Promise teaches public defenders to work more effectively within the judicial system by providing coaching, training, and professional development as well as a supportive network of peers and mentors from around the country.” The training model is widely employed now, primarily across the South. The Gideon’s Promise model will be incorporated into the Maryland state-wide public defender program. For more information read here. Mr. Rapping is an associate professor with Atlanta's John Marshall Law School and is the author of numerous articles on various aspects of the criminal justice system.
Friday, September 19, 2014
by David Singleton
The right to vote is one of the most fundamental and cherished rights in a free and democratic society. People arrested the weekend before the election are presumed to be innocent. If they are registered and otherwise qualified to participate in the process, voting is still their right. That hasn’t been how it was working in Ohio, but a ruling from federal court on one of my cases is making sure it will work exactly that way. A federal judge this week ruled that the State of Ohio and its county boards of elections must make provisions for eligible voters to request absentee ballots if they are placed into custody the weekend before an election.
The Ohio Justice & Policy Center (OJPC) filed FEO v Husted in 2012 on behalf of Plaintiffs the AMOS Project, Fair Elections Ohio, and CURE-Ohio—all community groups dedicated to making sure underrepresented communities get to participate fully in electoral politics. In registering voters in 2012, workers for the AMOS project fielded questions about what would happen to a registered voter who got arrested just before the election. AMOS and OJPC learned that Ohio law prevented a registered voter from casting a ballot if the voter was arrested the weekend before the election and was unable to pay bail in time to go to the polls on Election Day. The State of Ohio already has in place a special voting procedure for voters who are hospitalized right before an election, where they can vote through absentee ballot. However, the same opportunity was denied to voters arrested and jailed in those same final pre-election days.
In the course of the litigation, Plaintiffs provided expert evidence that showed that at least 400 voters were denied their right to vote in 2012 as a result of the state’s law and policies. Federal District Judge S. Arthur Spiegel, in ruling for the Plaintiffs, stated, “The Court sees no value in taking away this fundamental voting right, even for a short period of time.” The ruling requires the state to extend the opportunity to vote absentee to “late jailed electors” in Ohio.
Human rights are human rights--not just for humans who have money or humans of a certain community or humans of a certain color. This ruling confirms that basic truth using the US constitution and the Voting Rights Act. In brief, the opinion holds that by providing a special voting procedure for voters who are hospitalized right before an election, and denying that same opportunity to voters arrested and jailed in those same final pre-election days, the Ohio law violates both the US Constitution and the federal Voting Rights Act:
The challenged law violates the Equal Protection Clause of the Fourteenth Amendment,
by depriving late-jailed voters of the fundamental right to vote without adequate justification;
by treating jailed voters differently from hospitalized voters even though there is no meaningful difference between the two groups; AND
by effectively creating a wealth-based restriction on the right to vote, since many late-jailed voters could obtain release in time to vote on Election Day, but only if they have the financial means to post bond.
The statute also violates the Due Process guarantee of the Fourteenth Amendment by depriving late-jailed voters of the fundamental right to vote with “no compelling justification.
It violates Section 2 of the Voting Rights Act by disproportionately disenfranchising African-American voters.
It violates the Seventeenth Amendment to the U.S. Constitution by effectively preventing qualified electors from exercising their rights to vote for U.S. Senators and Representatives.
[Editors' Note: Prior Blog coverage of prisoner disenfranchisement is available here.]
Thursday, September 18, 2014
There is a substantial literature on state accountability for domestic violence as a matter of human rights. In particular, the human rights regime calls on governments to act affirmatively and with due diligence in addressing the "5 ps": prevention, protection, prosecution, punishment, and provision of redress.
Contributing editor Penny Venetis, Director of Rutgers Human Rights Clinic, and Carol Robles Roman, President of Legal Momentum, invoke this acccountability in their op-ed, published in Monday's Bergen County Record, addressing New Jersey's obligation in the Ray Rice case. The professional football player knocked his girlfriend unconscious in an elevator in Atlantic City, and the incident was caught on tape. Venetis and Robles Roman argue that Governor Chris Christie cannot treat this as a private incident, but that the state has an important role to play in prosecuting Rice as well as using this moment to expand public education to prevent violence against women.
Wednesday, September 17, 2014
In two recent, provocative articles, Professor Sheldon Bernard Lyke of Whittier Law School seeks to draw deeper meaning from U.S. courts' reluctance to engage with foreign law, and conservative opposition to such engagement. The first article, Making Strange Laws, 35 U.Pa.J. Int'l L. 675 (2014), draws on a qualitative analysis that finds parallels between conservative views of illegal immigrants and conceptions of foreign law. The second article, Is Resistance to Foreign Law Rooted in Racism?, 109 Nw. U. L. Rev. Online 41 (Aug. 31, 2014), considers whether racism is at work in the U.S. Supreme Court's resistance to transnational judicial dialogue. These articles are not yet up on SSRN, but the latter article is available online.
Sheldon Bernard Lyke, Making Strange Laws, 35 U. Pa. J. Int’l L. 675 (2014)
The central argument of this Article is that conflict over the judicial practice to use foreign authority leads to the manufacture of foreign law into a dangerous stranger. Drawing on philosopher and sociologist Georg Simmel’s conceptualization of the stranger as a cultural object that sits on the border of the insider and outsider, I argue that there is a resistance to the use of foreign law in the United States. Foreign laws, like immigrants in the United States, are being constructed as tolerable illegals or threatening legals.
I perform an empirical qualitative content analysis of the senate confirmation hearings for Supreme Court nominees and their discussions of the practice of judicial citation of foreign law. The hearings of nominees Alito, Kagan, O’Connor, Roberts, and Sotomayor are studied. During these hearings, conservatives label foreign law as biased and dangerous. Most interestingly, however, are the ways in which foreign law emerges from these debates linked to otherness--particularly the otherness of disadvantaged gender and racial minorities. The Article connects the transformation of foreign law into a stranger to other conservative movements that have constructed foreign national immigrants as illegal strangers who should be feared. This work argues that foreign laws and decisions constitute a new American stranger.
Sheldon Bernard Lyke, Is Resistance to Foreign Law Rooted in Racism, 109 Nw. U. L. Rev. Online 41 (Aug. 31, 2014)
Racism and oppression inhibit society and its actors and institutions from understanding the intricacies of ethnicity and race. This inhibition makes it more difficult for society to find solutions and remedy oppression. This Essay examines racism in the specific context of “transjudicial communications.” Anne-Marie Slaughter coined this term to describe the practice of courts in one country citing to the opinions and decisions of courts in foreign countries. In the United States, domestic issues of race may shape how legal actors and institutions understand and utilize transjudicial communications. In numerous instances, lawmakers and judges have expressed resistance to foreign law while debating aspects of racial inequality and racism in the United States.
More specifically, racism may fuel myopia on the Supreme Court of the United States by blocking Justices from access to useful foreign legal decisions. As a result, the Justices’ learning process regarding ethnicity and race is stifled. This is a troubling issue, particularly where the perspective lent by transjudicial communications could have been helpful in the Court’s recent discussions of the constitutionality of both race-conscious admissions in higher education and bans on race-conscious affirmative action programs. Specifically, a recent Brazilian Supreme Federal Court decision could have shed light on how the U.S. Supreme Court should view the relation between diversity and equality, how universities might address the U.S. Supreme Court’s concern over applications that allow for self-identification without third-party review, and whether to characterize affirmative action programs as benignly discriminatory, as opposed to manifestations of substantive equality.
The goal of this Essay is to situate transjudicial communications and the backlash against foreign legal citations into a conversation about race and racism. The goal is not to try to prove that opposition to foreign law is racist. That claim is better left for future research. Rather, at a minimum, the resistance to foreign and international law has correlations to racism and is grounded in a racial narrative.
In discussing racism and transjudicial communications, this Essay begins with a working definition of the contested conceptualization of globalization because transjudicial communications are a specific example of globalization. Second, I provide a brief overview of transjudicial communications in the United States and discuss how resistance to this process is linked to oppression and racism. Finally, I argue how racially-rooted resistance to foreign legal citation inhibits the possibilities for U.S. Supreme Court Justices to learn about race in the context of race-conscious university admissions. I use the example of the Supreme Federal Court of Brazil’s landmark affirmative action decision issued in April 2012 as an example of a missed opportunity for the U.S. Supreme Court to learn about race and the crafting of appropriate race-conscious remedies.
Tuesday, September 16, 2014
With so many U.N. treaty body reviews of the U.S. going on this year, it may be difficult for U.S. human rights advocates to focus on much else. However, we are missing a very rare opportunity to push ratification of one of the most innovative human rights treaties available today: the U.N. Convention on the Rights of Persons with Disabilities (CRPD).
The CRPD is a breakthrough human rights treaty, recognizing and outlining an array of rights for people with disabilities and clearly acknowledging that disability is an evolving concept, subject to social context. The treaty itself includes reference to domestic civil rights, international development policy and classic intersectional human rights. For the U.S., ratification provides the opportunity to join – and lead – a community of more than 147 countries which have already ratified the CRPD, and leading by the very positive examples of the Americans with Disabilities Act (ADA) and other policies and practices already in place in the U.S.
There is a real possibility that the Senate may vote again this fall – and successfully ratify – the CRPD. In December 2012, the U.S. Senate failed by only five votes (61-38) to pass its advice and consent to ratify the CRPD. This was after a major coordinated push for ratification led by a broad coalition of national and international disability rights advocates (e.g. the U.S. International Council on Disabilities), veterans groups, and major political figures from both parties, including John Kerry, Bob Dole, and former Attorney General Richard Thornburgh.
The 2012 vote was very disappointing, but still it is remarkable how close the CRPD came to ratification by the U.S., especially when you consider the inactivity of the 112th Congress and the government shutdown of 2013. Moreover, if there was any worry that the then-pending Bond v. U.S. decision was somehow affecting the ratification of treaties by the senate, that cloud has been lifted.
Heavy opposition was mobilized against ratification of the CRPD, both on the basis of rejecting all international treaties (a trend among very conservative Senators) and a rejection of the CRPD based on powerfully persuasive misinformation (such as the idea that parents would no longer have the ability to homeschool their children with disabilities). It is important to bring the facts and benefits of the CRPD to the Senate: the CRPD is a crucial human rights treaty, recognizing the rights of persons with disabilities, focusing on areas of law where the U.S. is a global leader. This is where U.S. human rights advocates are particularly experienced, bringing human rights arguments and making them relevant to U.S. courts and lawmakers.
This July, the Senate Foreign Relations Committee again voted the CRPD out of committee and it looks quite possible that it may come up for a full Senate ratification vote again sometime this fall. U.S. human rights advocates were late to the game in the push to ratify the CRPD in 2012. We need to do more to support and promote ratification efforts now. While some advocates have been pushing for ratification of the CRPD during human rights consultations leading up to the Universal Periodic Review, it would be great to see more connections made between human rights and disability rights groups and a concerted effort by human rights experts to speak and publish about the CRPD and the benefits of ratification.
An easy but significant step U.S. human rights advocates can take to join the push to ratify the CRPD is to go to the U.S. International Council on Disabilities’ website http://disabilitytreaty.org/, join their mailing list to keep up with new developments, and follow their advice to take action by signing their petition of support, and calling, writing or tweeting at senators.
Monday, September 15, 2014
“A DEAFENING AND DEADLY SILENCE”
I was flooded with relief as I read NFL commentator James Brown’s remarks addressing violence against women. Most violence against women, including violence against those who identify as female, is perpetrated by men. Yet intimate partner abuse is often described as a woman’s problem.
Historically in our culture, women’s voices have been discounted. Without the active engagement of men in confronting abuse and other disrespectful behaviors toward women, the elimination of discrimination and abuse of women is unlikely to be achieved.
In his comments, Brown addressed the roots of violence against women in recognizing the systemic cultural problem of treating women disrespectfully. Brown's full remarks may be read and viewed here.
Framing freedom from domestic violence as a basic human right is a good start. That freedom cannot be accomplished through the efforts of women alone. Over the past thirty years more options for woman have developed, providing safer options for those who wish to leave an abusive situation. What has not changed is that at least one in four women in this country are being or have been abused by current or former intimate partners. 1500 women are killed each year by a current or former intimate partner.
Each time abuse against women and girls is ignored or minimized, the problem is perpetuated. Each time men fail to confront another man who disparages women, an opportunity is missed to change that behavior. Women are not without obligations in stopping discrimination against women. But the voices of men are more powerful, particularly when their words are addressed to other men.
As Brown states “…wouldn’t it be productive if this collective outrage, as my colleagues have said, could be channeled to truly hear and address the long-suffering cries for help by so many women?"
“When a guy says, ‘You throw the ball like a girl,’ or, ‘You’re a little sissy,’ it reflects an attitude that devalues women and attitudes will eventually manifest in some fashion.”
Friday, September 12, 2014
Earlier this year, the TED conglomerate was accused of deliberately avoiding speakers addressing abortion-related topics. In the initial coverage in the Nation and elsewhere, a TED spokesperson was quoted as saying that abortion is "more of a topical issue we wouldn’t take a position on," and doesn't fit into TED’s focus on “wider issues of justice, inequality and human rights.”
Within a few hours of the initial report, TED had backpedaled and indicated that abortion was certainly within its ambit. And it posted a request for speaker ideas. Of course, a number of folks immediately come to mind: from the academic ranks, perhaps Rebecca Cook and Joanna Erdman, co-authors of a new collection titled Abortion Law in Transnational Perspective, or Khiara Bridges, a law prof/anthropologist who has written about race and abortion; from the advocacy world, perhaps Nancy Northup or Janet Benshoof, both of whom work for abortion rights on the international stage. An on-line search suggests that none of these folks have had a chance to deliver a TED talk. Further, though the lag time between the speech's delivery and the talk's posting makes it hard to know what's happened since February 2014, it appears that there is still no abortion-focused talk up on the TED website. (Two abortion-related talks are posted on TEDx, but these are from local programs that operate independently of TED).
TED has done a better job of addressing other human rights issues, including US issues such as the justice system and economic inequality. Still, TED doesn't make it easy to find these talks, since there's no search category on its site for "human rights." Further, there are very few (and maybe no) talks with "human rights" in their title. Despite exciting developments on the U.S. human rights front, such as the growth of local human rights initiatives, it does not appear that a single one of the 1800+ TED talks has focused on these local responses to issues of "justice, inequality and human rights."
The U.S. human rights movement has an abundance of eloquent speakers and many compelling stories. Whatever you think of the TED format, it certainly reaches people. The most widely viewed TED talks are watched by millions; the highest viewership for a single video is 15 million.
TED solicits speaker nominations through an on-line nomination form, linked here.
How might TED respond if they had an influx of nominations of highly qualified speakers from the U.S. human rights movement? And how might raising the profile of the movement in the TED space stimulate attention to, and dialogue regarding, US human rights?
Thursday, September 11, 2014
In the wake of the Supreme Court's decision in Burwell v. Hobby Lobby Stores many advocates have expressed concern that the decision opens the door for religiously-couched discrimination based on sexual orientation. The New York Law Journal (Sept. 8) published Laura Redman's careful analysis of the pertinent decisions of the European Court of Human Rights (ECHR) balancing sexual orientation and religious rights. Not surprisingly, the ECHR has taken a different approach to this balancing than that suggested by the Hobby Lobby decision. Given that the Supreme Court has cited ECHR decisions for their persuasive value on several occasions, these decisions may be useful in U.S. advocacy as this issue continues to develop.
More analysis of Hobby Lobby from a human rights perspective is available here.
Wednesday, September 10, 2014
By Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute
With three major human rights treaty reviews happening in rapid succession this year, some U.S. advocates may be experiencing human rights reporting fatigue. And some may find themselves wondering whether they should participate in yet another human rights review, the upcoming Universal Periodic Review (UPR). It’s a good question. And the answer is yes. The UPR is different from the treaty reviews in important respects, and it offers distinct advantages for U.S. social justice advocates.
The UPR, a "peer review" conducted through the UN Human Rights Council, requires that the human rights record of each country belonging to the UN be reviewed once every four years. As a "peer review," representatives from every member of the UN have an opportunity to ask questions of and make recommendations to the country under review. The U.S.’ first UPR occurred in 2010. Round two is scheduled for spring of 2015.
U.S. civil society actively engaged in the U.S.’ first UPR. Advocates filed 103 stakeholder reports, similar to shadow reports submitted in conjunction with the treaty reviews. Advocates from over 70 NGOs traveled to Geneva for the review, at which more than 50 UN member countries engaged the U.S. government delegation on issues ranging from U.S. detention policy and the death penalty to the United States’ failure to ratify key human rights treaties and establish an independent human rights monitoring body. The review culminated in 228 recommendations for ways in which the U.S. can improve human rights conditions at home, many reflecting advocates' input.
But what’s really different about the UPR? After all, robust and effective engagement by U.S. civil society has become a hallmark of the human rights treaty reviews, as well.
One important distinction is that the UPR is based on the UN Charter and the UDHR, in addition to the human rights treaties a country has ratified and any voluntary pledges and commitments it has made. The U.S. UPR isn’t limited to issues that arise under the few human rights treaties the U.S. has ratified. For example, the UPR offers an important opportunity for U.S. advocates to raise issues related to housing, health care, education and other economic, social and cultural rights, regardless of whether and how they relate to the non-discrimination provisions of the CERD and ICCPR.
Also unlike the treaty body reviews, which are conducted by committees of independent experts, in the UPR, countries themselves get to ask questions and offer recommendations. The political nature of the review certainly has some downsides, opening the U.S. government to critique from those who see little value in its subjecting itself to a human rights review by some of the world’s worst human rights violators. Still, the process can place a different type of pressure on the U.S. and may uniquely influence the government’s actions and policies with respect to certain issues. Thus, the UPR can supplement the pressure that the expert treaty bodies exert when reviewing U.S. compliance with its human rights commitments.
Another important feature of the UPR is its requirement that governments engage “all relevant stakeholders, including non-governmental organizations” in the preparation of its report. The U.S. report is due on January 19th. In preparation, the United States has already conducted several thematic civil society consultations, including on access to justice, domestic implementation of human rights treaties, and indigenous issues. More are on the horizon, including a consultation on September 12th on immigration and labor issues and one on October 7th on the environment and human rights. Through these consultations, advocates can participate in substantively focused exchanges with relevant federal agency personnel to raise issues that have not been covered in the treaty reviews, to reinforce concerns recently voiced by the treaty bodies and other experts, to urge the government to address concerns that were raised in the 2010 UPR, or to address human rights concerns that have since emerged.
As with the treaty reviews, reports by U.S. civil society play an important role in the review. The UPR itself is based in part on a document prepared by the Office of the High Commissioner for Human Rights summarizing these “other stakeholder” reports.
But U.S. advocates who want to participate must act quickly. The deadline for filing a UPR stakeholder report for the U.S. review is this Monday, September 15. The good news is that the submissions are necessarily short, and there are many resources to assist advocates who wish to contribute. The US Human Rights Network has created a useful submissions template, and hosts a UPR listserv for interested advocates. The UN Office of the High Commissioner for Human Rights has developed guidance for NGOs participating in the review.
In addition to filing reports, organizations can work more informally to encourage UN representatives to question the U.S. on particular issues during the in-person review, for example by reaching out directly to UN mission representatives based in New York. Here, too, the UPR offers an advantage, since these representatives may be more accessible than the experts comprising the UN treaty bodies.
Finally, a distinct advantage of the UPR is that, at its conclusion, the U.S. is required to affirmatively accept or reject each recommendation that emerges from the review. These commitments, made on a very global and very public stage, offer unique and potentially powerful hooks for future advocacy efforts.
It’s been an extraordinary year of U.S. human rights reviews. Advocates have devoted a tremendous amount of time, energy and other resources to submitting civil society reports and, in some cases, traveling to Geneva to participate in the reviews. The UPR offers an important capstone. The challenge, as always, is making it relevant once everyone comes home.
Tuesday, September 9, 2014
The Hague Institute for Internationalisation of Law (HiiL) is currently running a exciting innovation challenge, this year including ideas about how to promote a living wage in the garment industry. You can review the best competing ideas, culled from many more submissions, and cast your vote for your top choice here.
Two additional HiiL Innovating Justice challenges are also human rights-related. One focuses on testing new ideas for expanding justice; the other addresses scaling up successful innovations that have already been through a testing phase. Now, I have to admit that I have a horse in this race. In the "new idea" category, the NuLawLab is working with both Connecticut and New Haven Legal Services to spearhead an innovative use of on-line gaming to assist unrepresented litigants in advocating for themselves. You can learn more about (and hopefully vote for) our proposal here. Voting ends September 17.
Based in the Netherlands, HiiL is an advisory and research institute for the justice sector. Its mission is to provide crucial knowledge to make law work for people and their organizations. The Innovating Justice Awards have been around for several years, and have generated considerable interest internationally, particularly by opening up dialogues between lawyers and innovators from other disciplines (such as game design). One of the 2013 awards was specifically directed at expanding human rights. It's an exciting model for stimulating policy innovation and social change across the spectrum of justice issues, including in the human rights field.
Monday, September 8, 2014
The recent CERD observations addressed violence against women and the state's need to address ongoing violence, particularly against minority women. Leigh Goodmark reminds us that private entities also play a significant role in perpetuating violence against women when they fail to impose significant sanctions against employees who batter. She writes:
The National Football League’s season started Thursday night, but the NFL has consistently been in the news since February, when Baltimore Raven Ray Rice knocked his then-fiancé unconscious in an Atlantic City casino elevator in February 2014. Following the furor over the NFL’s decision to suspend Rice for only two games, the NFL last week announced a new policy on player-involved domestic violence—a 6 week suspension for the first offense, and at least a year suspension for a second offense. Some have questioned whether the NFL’s stance is unreasonable in cases where criminal liability is not established. The NFL’s answer has been that the personal conduct policy does not require a finding of guilt beyond a reasonable doubt because players in the NFL are held to a “higher standard” of conduct. As well they should be. What is most troubling about the NFL’s historical lack of response is the failure to acknowledge that pro football bears some responsibility for the damage that its players are able to do to their partners. Professional football players are trained to be bigger, stronger, faster, and more aggressive than most elite athletes, let alone their partners. The league encourages men to be violent, pays men huge salaries to be violent, then fails to sanction them for using that violence off the field. The league allows quarterbacks to wear red jerseys during practice; those jerseys tell their teammates not to hit the quarterback too hard. Perhaps the partners of NFL players should be issued those jerseys as well (an idea that came from a long-time Jets fan).
The NFL already has an opportunity to show that it plans to take domestic violence seriously. Since the announcement of the new policy last week, two players, Ray McDonald of the 49ers, and Quincy Enunwa of the Jets, have been arrested for assaulting their partners. Clearly the new policy hasn’t yet served as a deterrent; time will tell whether the NFL’s strong, consistent application of the policy will.
Editor's Post Script: Following McDonald's arrest the 49's coach announced his intention to play McDonald at yesterday's game. He said that McDonald's due process rights were at play. Despite Goodall's earlier announcement that the resonable doubt standard is not applicable to the suspension of players, he did not override the coach's decision saying that he was not going "rush to judgment".
Friday, September 5, 2014
THE UNADDRESSED CONSEQUENCES OF SYSTEMIC RACISM FOR ABUSED WOMEN
Violence against women is recognized as a significant problem in U.S. culture. As is race. African American women face difficulties in seeking and obtaining remedies for intimate partner violence that come more easily to other women. Because of the gross over-representation of men of color, particularly African-American men, in the criminal justice system, women can be discouraged by their communities from seeking police help or cooperating with prosecution where the partner is someone of color. (See Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010) for her work on over-representation issues; and Lisa M. Martinson, The Effect of Racism on Domestic Violence Resources, 16 Wisconsin Women’s Law Journal (2001).
There are many substantial reasons why women may not wish to pursue criminal action against intimate partners, particularly when they have children in common with that partner or when prior police response has been dismissive or resulted in calls to child protective services.
Battered women seek police protection to stop the violence, not necessarily to effect arrest. However, when a woman of color is severely injured by an intimate partner, community pressure to prevent her access to state remedies can leave the survivor particularly vulnerable to further abuse. Discouraging any path of protection empowers abusers and encourages an escalation of abuse.
Lack of fairness in our criminal justice system has implications beyond the very real racial bias against men of color, who are much more likely to be arrested by police than their white counterparts and who are sentenced more harshly.
Because of the widespread injustice in arresting, prosecuting and sentencing men of color, women of color are discouraged from accessing some avenues of protection. The stakes are simply too high. Women know that if their perpetrators are men of color, the consequences of state involvement could be severe. Beth Ritchie in her 1996 book, Compelled to Crime, wrote of this constraint. “…[S]ome women abided by the culturally constructed perception that African American women’s role was to be protective of African American men who, indeed, were vulnerable to the effects of institutionalized racism.” And the problem of over-incarceration of men of color has only worsened since the publication of Richie's book two decades ago.
The imperative to protect African-American men from the real dangers of hyper-incarceration can create serious pressure for their abused partners, asking women to value their own needs less than the freedom of their abusers. When a woman is in danger of being killed or suffering other serious injury, should she be discouraged from seeking protection in whatever form she chooses? The subversion of safety needs to the protection of the abusive partner is a dilemma for battered women, particularly for women of color.
The preliminary Concluding Observations of CERD address both violence against women and the over incarceration of African Americans. The impact of this intersection is unaddressed. If the US wishes to commit to stopping violence against women and providing effective remedies, then systemic changes in how men of color are treated within the criminal justice system must be prioritized.
Thursday, September 4, 2014
On Friday, The UN Committee on the Elimination of Racial Discrimination (CERD) released its Concluding Observations, following its review of the United States on August 13 and 14. Northeastern Law student Hannah Adams represented PHRGE at the review and lobbied the committee on the issue of access to justice in civil cases, and the negative outcomes experienced disproportionately by people of color when unrepresented in civil matters where basic human needs are at stake. In their Concluding Observations the Committee made strong recommendations about this issue in Paragraph 23:
Access to Legal Aid
While welcoming the steps taken by the State party to improve access to justice by indigent persons, such as the Access to Justice Initiative launched in March 2010, the Committee remains concerned at the ongoing challenges faced by indigent persons belonging to racial and ethnic minorities to effectively access legal counsel in criminal proceedings in practice. It also reiterates its concern at the lack of a generally recognized right to counsel in civil proceedings (CERD/C/USA/CO/6, para.22), which disproportionately affects indigent persons belonging to racial and ethnic minorities to seek an effective remedy in matters such as evictions, foreclosures, domestic violence, discrimination in employment, termination of subsistence income or medical assistance, loss of child custody, and deportation (art. 6).
The Committee reiterates its previous recommendation that the State party adopt all necessary measures to eliminate the disproportionate impact of systemic inadequacies in criminal defence programmes on indigent defendants belonging to racial and ethnic minorities, including by improving the quality of legal representation provided to indigent defendants and ensuring that public legal aid systems are adequately funded and supervised. It also recommends that the State party allocate sufficient resources to ensure effective access to legal representation for indigent persons belonging to racial and ethnic minorities in civil proceedings, particularly with regard to proceedings that have serious consequences for their security and stability, such as evictions, foreclosures, domestic violence, discrimination in employment, termination of subsistence income or medical assistance, loss of child custody, and deportation proceedings.
The Committee also recommended that the U.S. provide for legal assistance in all immigration-related matters in Paragraph 18.
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Wednesday, September 3, 2014
CRC Committee to Focus on Social Media and Children’s Rights
On September 12, 2014, the UN Committee on the Rights of the Child will host a Day of General Discussion on "Digital Media and Children's Rights." Days of General Discussion can be important not only for the substantive information presented but also because they can spur the development of a new General Comment on an emerging or critical rights issue. Across a range of children’s rights issues—from education rights to trafficking and other forms of exploitation—technology and social media can be employed either to facilitate children’s rights violations or to help children realize their rights.
Although the media has received attention by human rights treaty bodies over the years—the CRC Committee held a day of general discussion on children and the media in 1996—rapid innovation in social media and information technology prompt important new questions. And as all of the major human rights instruments were drafted years or even decades before widespread use of the internet and social media, many of these questions are not addressed in the text of treaties.
Numerous rights enshrined in the Convention on the Rights of the Child are implicated by technology, including the principle of non-discrimination (Art. 2), the best interests of the child (Art. 3), the right to be heard (Art. 12); freedom of expression (Art. 11), freedom of association (Art. 15); the right to access information (Art. 17); freedom from violence (Art. 19); the right to education (Arts. 28 and 29); the right to rest, leisure, play and the right to enjoy one’s culture (Art. 31); protection from sexual exploitation and sexual abuse (Art. 34); protection from all forms of exploitation (Art. 36).
The CRC Day of General Discussion will include two working groups: (1) children’s equal and safe access to digital media and information and communications technology (ICT); and (2) children’s empowerment and engagement through digital media and ICT.
Harnessing technology to promote and sustain human rights, while simultaneously working to minimize harms associated with or facilitated by technology, must be on the agenda of all human rights organizations and treaty bodies. Thus, the outcomes of this Day of General Discussion merit attention by human rights advocates, regardless of their issue of focus.