Human Rights at Home Blog

Show and Tell: The Use of Visual Media to Document, Describe, and Discourage Gender Equality

By Lesley Wexler

Women and men are increasingly taking to social media to challenge street harassment, domestic violence, and sexual assault. In addition to the forms noted in Martha Davis’ earlier post,  I offer some additional examples and the varied purposes they serve.

In one creative tumblr, an anonymous man has solicited pictures of men taking up too much space on trains. The creator keeps the commentary to a minimum letting the pictures speak for themselves. While the assertion of space on a train need not be identified as a human rights violation, the tumblr is subtitled “A classic assertion of privilege” for a reason. The pictures aptly identify one form of everyday microaggressions women face in public spaces and visually display the seemingly unquestioned authority to ignore the interests of others. The author does respond to write-ins justifying the biological need for men to take up more space and in so doing offers a humorous and relatable approach to the need for equality on issues both big and small.

Moving on to the visual documentation of women, several blogs and twitter conversations use pictures to challenge the idea that women’s clothing creates consent for street harassment and sexual assaults. The Stop the Catcall tumblr asks women to submit pictures of what they were wearing along with the story of how they were cat called. By showing herself in varied outfits and locations, the author demonstrates that the constant is the male belief in their authority to speak to her body rather than the nature of the clothing. A tumbler website, "What I Was Wearing When I Was Raped" does just that. The site collects and displays women protesting their rape while wearing the outfit they were raped in. And twitter hosted a conversation in which women wrote in descriptions of their outfits when raped (many accompanied by pictures). Such campaigns document the pervasiveness of aggressions, big and small, as well as effectively debunking the idea that women who dress provocatively are asking for it. None of these women were asking for it and for many, the effort to cover their bodies seems as likely to garner street harassment as the decision to uncover parts. Perhaps equally important, these visual displays allow women a public opportunity to reclaim their stories. They provide voice for women to emphasize what they found important about these events to a generally hospitable audience.  

At Columbia, Emma Sulkowicz has been carrying her mattress all over campus as a protest of the University’s treatment of her alleged rapist.  Her performance piece has stood as an important piece of a growing movement at Columbia with the mattress serving as a key piece of symbolism in organized protests. Her piece has also invited visible demonstrations of support with other students helping to carry her mattress.  Her performance piece is part of a larger strategy to bring accountability to a University charged with chronic mismanagement of rape allegations and she is one of 23 students to file a federal complaint.

Quite recently, Hollaback! released a video of a woman walking New York as a camera crew documented her street harassment. Meanwhile, group Funny or Die reimagines the same walk through new york by a white man and comically identifies his privileges.  Viewed together, they capture the imagination and help create understanding in a way that speeches and statistics alone are unlikely to do.

Of course, such challenges are not without personal costs such as reporters’ violations of Emma Sulkowicz’s personal space and the death threats to the actress of the street harassment video.  But identifying women as subjects of human rights and documenting their violations and expressing how such violations make them feel goes beyond simple creation of and enforcement of law. Social media campaigns seem poised to play an important part in this ongoing struggle.

From Cradle to Grave, the U.S. Protected Jean-Claude Duvalier

 

By Fran Quigley

In February of 2013, I stood in a sweaty, overcrowded Port-au-Prince courtroom and watched as Jean-Claude Duvalier answered questions about hundreds of his political opponents being arrested, imprisoned, and killed during his tenure as Haiti’s “President for Life.”

Many of Duvalier’s rivals were held in the notorious three prisons known collectively as the “Triangle of Death”—Casernes Dessalines, Fort Dimanche, and the National Penitentiary. One political prisoner held in the Casernes Dessalines recalls being placed in a cell underneath the grounds of the National Palace, where Duvalier lived. The prisoner was led to an area so dark he could not see, but a guard’s torchlight revealed the man was locked in a room amid the skeletons of former prisoners.

At the court hearing I attended, Duvalier ducked responsibility, saying that the killing and oppression was done without his knowledge.

Then he walked out of that courtroom a free man, which is how he died earlier this month, at age 63. Court rulings were still pending at his death, but the process was moving at a glacial pace and several of the interim decisions had been in Duvalier’s favor. Meanwhile, Duvalier met with Haitian and international political leaders, was acknowledged on the dais at public events, and was often spotted dining at expensive restaurants.

In researching a book on the struggle for human rights in Haiti, I spoke with Human Rights Watch’s Reed Brody about the Duvalier situation. “Can you imagine any other country where a former dictator accused of political murders and leaving people to rot and die in prison is allowed to just walk back into his country and remain free?” Brody asked. But he also said that the Haitian government did not bear sole responsibility for seeing that justice is done. “Part of this is the fault of the international community. Where is the outrage we would have if the brutal leaders of Iraq or Serbia were walking around free? We would not allow this anywhere else.”

But it was allowed to happen in Haiti, largely because of the studied indifference of the U.S. government. Shortly after Duvalier’s surprising 2011 return to Haiti from exile, Secretary of State Hillary Clinton and her staff made it clear that any prosecution was a matter solely for the Haitian government to handle.

The U.S. taking a hands-off approach to another country’s human rights issues would be more defensible if our hands were not so bloodied by the tragedy in question. For decades, the U.S. provided money, weapons, and troops to sustain the Duvalier regime in Haiti, even after human rights abuses were well known. Jean-Claude Duvalier’s father, Francois “Papa Doc” Duvalier, even used USAID trucks to carry supporters to his political rallies. More recently, Secretary Clinton successfully pushed the candidacy of current Haitian president Michel Martelly, who opposed the prosecution of Jean-Claude Duvalier and welcomed Duvalier’s son into his administration. 

The determined Duvalier victims and tireless human rights advocates won a key victory in the prosecution last February, when the Haitian Court of Appeals ruled that Duvalier could be tried for his human rights crimes. But there was still a long road ahead when Duvalier died, a road that could have been traveled years ago if the U.S. had stepped up. The U.S. could have provided diplomatic cables and other evidence from the Duvalier era that would have helped make the prosecution’s case. The U.S. could have assisted in ensuring the safety of Duvalier victims fearful of testifying against him. And the U.S. could have used its bully pulpit and status as Haiti’s chief source of aid to push for prosecution. Instead, the Obama administration, likely wary of a trial destined to expose embarrassing evidence of U.S. complicity in Duvalier’s crimes, did nothing.

As a result, the Haitian people lost out. On a previous visit to Haiti, I interviewed Raymond Davius, who still carries the physical and psychological scars from being imprisoned and tortured for daring to join a political party that opposed Duvalier. “The problem is not as much about Duvalier himself as it is what he represents,” Davius said. “If Haiti does not judge Duvalier, we have lost the opportunity to send a message to Haitian leaders who think they can kill whoever they want and steal whatever they want, and not be judged.”

Instead, the message after Duvalier’s death continues to be one of impunity in Haiti, if you are rich enough and powerful enough. From his cradle in the National Palace run by his despotic father to his grave, where the latest U.S.-backed Haitian president called for a salute to an “authentic son of Haiti,” Jean-Claude Duvalier enjoyed U.S. protection.

I ended my column on the February, 2013 court hearing with this sentence: “The U.S. has enormous influence here, and most observers feel Duvalier will be held accountable for his crimes only if the U.S. speaks up.”

We didn’t, and he wasn’t.

            Fran Quigley is a clinical professor at Indiana University McKinney School of Law and the author of How Human Rights Can Build Haiti (Vanderbilt University Press, 2014.)

 

State Quarantines, Ebola and Human Rights

Last Sunday, Kaci Hickox, a nurse placed under mandatory quarantine in New Jersey after returning from treating Ebola patients in Sierra Leone, went on CNN and criticized the "knee-jerk reaction by politicians" to Ebola.  Said Hickox of her quarantine,  "This is an extreme that is really unacceptable, and I feel like my basic human rights have been violated."  

Physicians for Human Rights (PHR) has posted a measured statement on U.S. quarantines that makes the same point, noting that the Siracusa Principles, rather than politics, should be the touchstone for determing responses to public health challenges.  And as Human Rights Watch has articulated, these international human rights principles "require that restrictions on human rights in the name of public health or public emergency meet requirements of legality, evidence-based necessity, and proportionality."  An in-depth discussion of these human rights standards and Ebola is captured in a video featuring Widney Brown, Director of Programs at PHR, taped at Roosevelt House in New York City.  As Professor Sarah Cleveland and others have noted, these standards are applicable to all levels of government, not just federal entities.

Meanwhile, of course, the epicenter of the crisis is in West Africa, not New Jersey or New York or the handful of other states that have announced mandatory quarantines.  One important concern articulated by PHR is that aggressive state quarantines will discourage those with relevant skills from helping during this crisis where help is most needed.  Partners in Health, working closely with local medical organizations in Liberia and Sierra Leone, is hiring short and long-term clinical and non-clinical staff to help on the ground in West Africa.   As UN Secretary-General Ban Ki-moon stated, “the only way to stop Ebola is to stop it at its source” -- a source that includes, as Alicia Yamin points out, persistent poverty and neglect.  In the U.S., measures that distract us from focusing on that source are the real threat.

 

Related articles

New Jersey Releases Quarantined Ebola Nurse Kaci Hickox

Doctors challenge 21-day quarantine for Ebola workers; New Jersey nurse Kaci Hickox released to home

The Human Rights Tour 2014

They brought us the Beatles, the Rolling Stones, One Direction, and now . . . the Human Rights Tour!  The British Institute of Human Rights (BIHR) is in the midst of their fourth annual Human Rights Tour, with events still to come on October 28 in Londonderry, November 4 in York and November 6 in Norwich.  So far, the BIHR tour is staying on their side of the pond, but it's still worth a look as US activists examine effective models for local engagement stateside. 

According to the BIHR website:

"The idea is simple, go across the UK holding free to attend pop-up events in local communities, raising awareness about human rights, how they are relevant in our lives, and having a space for debate and discussion."

Since 2011, the BIHR has hosted 52 events in 35 cities, directly reaching 4000 people and serving almost 12,000 cups of tea! 

Why do this, you ask?  BIHR responds:

"Rather than talking about what people think about human rights, we go out and have the conversation in communities up and down the UK. We believe it’s important to provide the space for people to gain knowledge and confidence about human rights. To have a forum for questions, open debate and discussion which engage people, and empower them to really reflect on what human rights means to them." 

The results bear out the effectiveness of this strategy.  98% of those responding said that they saw human rights as relevant to their everyday lives after attending the BIHR session, and 88% felt more confident using human rights to challenge questionable practices.

This year, the BIHR's grassroots outreach is more important than ever.  In early October, Prime Minister David Cameron announced his controversial plan to repeal the current U.K. Human Rights Act, which implements the European Convention on Human Rights in the U.K.  The BIHR called the proposal an "act of vandalism" against the British public.

Campus Violence, Part Two: Human Rights, Dignity and Process

According to a National Institute of Justice study, a majority of teens who date described themselves as either victims or perpetrators of abuse within the dating relationship.  Much of this violence happens on school campuses.   Friday's post addressed sexual assault and other abuse against members of campus higher education communities and the difficulties faced by students who participate in university administrative hearings. Following a sexual assault or other abuse over which the  educational has jurisiction, students face options should they decide to pursue a remedy.  For many reasons, a student may decide not to pursue criminal charges.  They may, however, decide to pursue an administrative hearing within the university system, typically through campus Judicial Affairs. The sensitivity and civility of these hearings varies between those that safeguard against disrespectful proceedings and those that permit behaviors that humiliate the complaintant.  

Earlier this month, Pepperdine University hosted a conference  Student Life, Relationship and the Law: Confronting Domestic Violence in Higher Education.  The interdisciplinary conference brought together those working with students who have experienced campus violence and those who engage in scholarship on violence.  While the difficulties faced by survivors in finding appropriate remedies was part of the discussion, so was implementing remedies.  One significant part of the identified problems is a lack of respectful treatment during administrative hearings.  Several speakers suggested changes that could restore dignity to campus investigations and hearings. As stated in Article One of the Declaration of Human Rights, "All human beings are born free and equal in dignity and rights."

Schools need to create processes that are culturally sensitive.  In particular, African-American and LGBT students feel at particular risk for not being treated respectfully during school administrative hearings and other parts of the investigatory process.  Prof. Deborah Weissman and others addressed the need for remedies to be available to diverse students in a way that treats them with dignity and respect and provides settings and processes that are designed to incorporate the needs and wishes of those who historically have been marginalized. 

A link to the substantive discussion is found here.

A related suggestion is for Judicial Affairs hearings officers and others involned in the process must be vetted for cultural sensitivity and subject matter competency.  Misunderstanding of sexual assault, use of stereotyping of relationships and parties can victimize all parties to the hearings.  Some hearings leave students humiliated and without a sense of fairness.  Many of the same barriers faced by parties in criminal hearings are present in some campus judicial office hearings. Being a member of the faculty or campus administration does not qualify those individuals to hear concerns regarding sexual assault and other abuse.  Likewise, academic qualifications do not ensure neutrality or lack of bias.  Campuses need to engage experts on abuse to participate in hearings and ensure that all involved in the process are familiar with the issues being heard and the sensitivities involved.

Recently members of the Harvard Law School faculty criticized Harvard's revamped sexual assault policy.  The new policy is not unlike that of many universities.  The professors bring a perspective rooted in criminal law to campus proceedings.  Any accused student is wise to consult with counsel before engaging in either campus or criminal hearings.  A misunderstanding exists, however, that students are deprived of counsel at campus hearings.  While attorneys and other advisers are not permitted to conduct courtroom-like examinations, the students are able to consult with counsel or other advisers at any stage of the process, should they decided to participate.  Bringing a criminal law perspective to these hearings would virtually shut down the purpose of the hearings, which is intended to be remedial, not punitive.  The applicable standard of proof at campus hearings is preponderance of the evidence.  Once campus processes take on attributes of criminal hearings, officers will confuse the standard of proof with reasonable doubt.  A shift of both purpose and standard can happen in ways that are not obvious and may not be intended.   But the consequence would be essentially to close the administrative avenue of recourse to those students who wish to pursue a non-criminal avenue of redress. 

 

 

Campus Violence, Part One

In 2011, Vice President Biden delivered his “Dear Colleague” letter to college campuses across the nation.  The letter reminded campus administrators of their obligations to protect and provide services to those who experience gender discrimination, including relationship violence.  The letter referenced specific protections and obligations incumbent upon colleges and universities to make known to students, including the school’s resources and processes in the event a student experiences violence. Subsequently, the Department of Education announced the investigation of over 50 campuses that may have inadequate campus responses to gender violence.  Non-compliance can range from deficient web posting of Title IX resources to failure to provide fair hearings for sexual assault survivors seeking remedies through their schools.

3900 campus sexual assaults were reported in 2012. Many schools saw an increase in reporting which is attributed to more responsive efforts on the part of colleges and universities following announcement of the government investigations including more accurate reporting of campus crime.  Nonetheless, sexual assault victims continue to report disrespectful hearings and ineffective resources  in both finding help as well as suitable remedies through the university systems.

Student participants in university hearings more often than not describe dissatisfaction with the pre-hearing process and the process itself.  Hearings officers may not understand violence and others who dismiss the seriousness of an assault.  Same sex students and students of color have complaints that echo victims' complaints of negative experience when they engage the criminal justice system.  Stereotypes can permeate the process or enhance of distrust of the process.  While many students fail to report sexual assault, under reporting is particularly high with students of color and and gender variant students. 

Part two of this post will address recent discussions on how to address campus violence in ways that respect  and are meaningful for all targets of campus violence.

 

 

 

---

 

 

 

A Human Rights Lab

More and more social entrepreneurs and innovators seek to break out of the boxes of established institutions by creating "labs," that promise creative spaces, relatively less hierarchy, engagement with technology, and the possibility of social transformation.  Building on this trend, in 2013, the United Nations Development Programme offices in Europe and the Commonwealth of Independent States established the first-of-its-kind Human Rights Lab. 

According to its website, HuRiLab "is a platform to promote innovative concepts into the Rule of Law, Human Rights, and Justice programming. We seek to facilitate collaboration with institutions and youth/ civil society organizations in order to develop more responsive and effective projects that can address persistent challenges posed by vulnerability, marginalization, and exclusion."

HuRiLab's on-line "idea box" is a place where human rights activists can initiate dialogue about their nascent ideas for transformative social change.  Projects to date include several focused on disabilities and one of particular interest to lawyers, "How can innovation and technology help deliver legal aid more effectively?"

Several of HuRiLab's post-graduate fellows are addressing this access to justice issue during their fellowship year, by setting up access to Skype consultations, for example, and developing the use of mobile tools to access legal information.  The fellows' "microblogs" chronicle their successes and challenges during the year.

The human rights lab model has much to recommend it as a source for both ideas and implementation.  As U.S. advocates work closely with local human rights commissions, and continue the long struggle to establish a national human rights body, perhaps we should also be borrowing a page from HuRiLab and consciously developing new approaches to encourage human rights innovation. 

 

 

 

 

Human Rights Conference Round-up: Education, Immigration, and Children's Rights

It's conference season, and human rights issues are the focus for many upcoming events.  Here are three that are worth a look:

On November 6-7, 2014, the Program on Human Rights and the Global Economy (PHRGE) of Northeastern University School of Law (NUSL) will host its annual Human Rights Institute at NUSL in Boston.  This year’s Institute, titled Rethinking Education Reform: A Human Rights Perspective, will analyze and evaluate the combination of initiatives known as “public education reform.” It will do so with an eye toward identifying policies that will help promote and support the human right to education (alongside all other human rights) for all U.S. school children.  The 2014 Institute will focus on three themes: (1) the charter school movement and the broader trend toward the private provision of public education services; (2) the emergence of “no excuses/zero tolerance” discipline policies resulting in the exclusion of students from school; and (3) the continued expansion of high-stakes testing as the principal means of motivating and measuring educational achievement in public schools, alongside related efforts to further standardize public school curricula.  For more information and to register, click here.

The 20th Annual Herbert Rubin and Justice Rose Luttan Rubin International Law Symposium will be held on November 6, 2014, at NYU Law School.  The Symposium, entitled “The Human Rights of Migrants: From Treaty to Reality,” will examine the potency of international human rights law within the United States. In particular, it will focus on how international human rights perspectives could help the U.S. and other nations reframe national immigration debates to find more humane and functional societal solutions than those currently in place.  More information is available here.

Finally, for a comparative perspective, check out Conference 25 Years CRC, part of a multi-day celebration of the 25th Anniversary of the Children's Rights Convention in Leidin, The Netherlands, from November 17 - 20, 2014.  As part of the festivities, Leidin Law School will host the two-day conference, November 17-18, bringing together children’s rights academics, professionals and students from the four corners of the globe, for a program full of discussion and reflection on the past and future impact of the CRC on topical issues of the children's rights agenda.  The week's events will also include the Leiden Children’s Rights Summit on Universal Children’s Day, 20 November 2014, the Leiden Freedom Lecture, an international moot court competition on children’s rights for students, and the inaugural lecture of Prof Julia Sloth-Nielsen on the 17^th of November 2014.  Among the keynote speakers is Bernadine Dohrn, retired clinical professor at Northwestern University and champion of U.S. children's rights and human rights.  More information is available here.

New Resource on Inter-American Court of Human Rights

The Inter-American Court of Human Rights (IACHR) Project of the Loyola of Los Angeles International and Comparative Law Review has released its Inter-American Court of Human Rights Database. This freely-available database produced by the editors and staff of the IACHR Project under the supervision of Professor Cesare Romano allows users to search Inter-American Court decisions by case name, country, and topic. Advanced search features include the ability to search by specific violation of various Inter-American Conventions.

Search results include a brief description of the case, information on judges, and violations found by the Inter-American Court. When available, the database includes a link to a detailed case summary which includes case facts, procedural history, merits, and state compliance with the Inter-American Court's judgment. To date, 74 detailed case summaries are available.

 

 

Next Steps in Detroit: UN Special Rapporteurs Vindicate The Rights to Water and Human Dignity

On October 20, 2014, the UN Special Rapporteur on the right to adequate housing and the UN Special Rapporteur on the right to safe drinking water issued a joint statement at the close of their informal visit to Detroit,.  While there, the two UN officials investigated the impacts of the city's aggressive policies of shutting off water to 27,000 individuals unable to pay their water bills.

According to the Rapporteurs' joint statement, "[d]isconnections of water due to non-payment are permissible if it can be shown that the resident is able to pay but is not paying. When people are genuinely unable to pay the bill, it is the State’s obligation to provide urgent measures, including financial assistance, a specially low tariff or subsidies, to ensure access to essential water and sanitation for all. Not doing so amounts to a human rights violation."  

 Mindful of the fact that the US has not ratified the International Covenant on Economic, Social and Cultural Rights, the two Rapporteurs framed their concerns around the US's binding obligations under the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racism, as well as the Universal Declaration of Human Rights.  For example, the joint statement pointed out that access to water is a prerequisite to achieving the "right to life" and dignity guaranteed under the ICCPR, and noted that residents who were shut off had no recourse to lawyers to challenge such determinations.  Further, the Rapporteurs raised questions about racial impact of the cut-offs, in light of US obligations under CERD, and called for a federal investigation of these disparate racial impacts. 

Interestingly, the joint statement stresses that the responsibility for ensuring the human rights to water and adequate housing must be implemented at every level of government.  The Special Rapporteurs' recommendations are leveled not only at Detroit, but also at the State of Michigan and federal authorities.  For example, the UN officials recommend that the state and federal government utilize their spending powers to condition funding on the city's provision of adequate water to residents.   The City of Detroit, they recommend, should have in place emergency services for those who are cut off.   And expanding on a recommendation made by the Special Rapporteur on the right to water in 2011, the two officials assert that the United States Government, the State of Michigan and the City of Detroit should adopt a mandatory federal minimum standard on affordability for water and sanitation.

Though the Special Rapporteurs visited the city at the  behest of civil society organizations, they met with the Mayor and City Council of Detroit as well as members of civil society.   Last summer, Michigan Senator John Conyers reached out to President Obama and the Secretary of HHS to seek greater federal oversight and involvement.  However, to date the federal presence has been felt most keenly in the form of the U.S. bankruptcy judge who has ruled that Detroit residents have no right to water, and that the cut-offs can continue.  The Special Rapporteurs' statement took pains to point out that federal courts, like the other branches, are also bound by international human rights obligations.

 

Related articles

UN hits at Detroit water shutoffs

The Fundamental Nature of Title VII

Professor Maria Linda Ontiveros of the University of San Francisco School of Law has just posted a new article, The Fundamental Nature of Title VII, on SSRN.  In the article, Professor Ontiveros models the relevance of human rights law to domestic legal analysis, arguing that the treatment of employment discrimination under human rights law should be a factor informing the understanding and construction of the "fundamental nature" of Title VII.  The article is slated for publication in the Ohio State Law Journal.  Here is the Abstract:

Abstract:     

This article explores the fundamental nature of Title VII and argues that Title VII is a statute designed to protect the right to own and use one's own labor free from discrimination in order to provide meaningful economic opportunity and participation. This conclusion is based upon three different types of analysis: the elements approach; the super statute approach and the human rights approach. The "elements approach" places Title VII in context and argues that it cannot be interpreted in isolation because it is only one element of the Civil Rights Act of 1964. The "super statute approach" argues that Title VII embodies the fundamental principle, originally found in the Thirteenth Amendment to the U.S. Constitution, that individuals have the right to own and use their own labor free of discrimination, in order to have meaningful economic opportunity. This conclusion is supported by a historical analysis which ties together the Fair Employment Practices Commission (which served as the direct predecessor to Title VII); the work of the Civil Rights Section of Roosevelt's Justice Department; and the Thirteenth Amendment and Anti-Peonage Act jurisprudence to show the connection between Title VII and the principles underlying the Thirteenth Amendment. The "human rights approach" shows that international law also categorizes and interprets employment nondiscrimination provisions in this way. The article uses this analysis to explain why the U.S. Supreme Court's recent moves to categorize and interpret Title VII as a tort are incorrect. Finally, it suggests that, if tort analysis were to be imported into Title VII, the doctrine of duty could be used to argue that Title VII creates an affirmative duty for employers to provide a workplace where all employees have a right to meaningful economic opportunity.

Affirmative Action in South Africa

On our sister Human Rights blog, the Oxford Human Rights Hub, Barrister Andrew Wheeler recently published an interesting analysis of South African Police Service v. Solidarity obo  Barnard, a decision of the South African Constitutional Court.  The specific question considered by the court was, essentially, what measures constitute affirmative action and what standard applies to determine whether someone has violated Rule 9(2) of the South African Constitution, which specifies that affirmative action is permitted under South African law.

Comparative examination of affirmative action is not foreign in the U.S.  In her concurrence in Grutter v. Bollinger, Justice Ginsburg noted that affirmative action is an accepted concept under international law and under the laws of many other countries.  In recent years, affirmative action cases before the Supreme Court have often been accompanied by amicus briefs detailing the ways in which peer nations employ affirmative action measures, from quotas to preferences.  This new South African case extends, and perhaps complicates, the comparative jurisprudence in this hotly contested area.  

 

Vanita Gupta and Human Rights

Vanita Gupta, the newly appointed (and soon to be formally nominated) Acting Director of the Civil Rights Division of the Department of Justice, will likely have an important role to play in the upcoming Universal Periodic Review of the U.S. conducted under the auspices of the UN Human Rights Council.  Past Civil Rights chiefs and staffs have often served as spokespersons before UN bodies monitoring US compliance with human rights norms, and have contributed to civil society dialogues before and after the reviews.  Happily, Vanita Gupta is one of a new generation of domestic civil rights lawyers who will bring a deep understanding of human rights to the position. 

Gupta has worked on human rights internationally, consulting with the Open Society Institute, for example.   But she has also framed domestic advocacy in human rights terms.  She has served on the U.S. Advisory Board for Human Rights Watch, contributing to that organization’s attention to domestic human rights violations.  And earlier in her career, in 2008, she authored an article entitled “Blazing a Path from Civil Rights to Human Rights: The Pioneering Career of Gay McDougall,” published in Bringing Human Rights Home: A History of Human Rights in the United States, which I co-edited with Cynthia Soohoo and Catherine Albisa.  In that piece, which reproduced an in-depth interview with Gay McDougall, Gupta noted that McDougall “has fundamentally changed the way U.S. civil rights, activists, and lawyers engage with human rights both domestically and globally,” blazing a path for “countless civil rights lawyers in the United States to expand the struggle both in terms of what rights are as well as where and how rights can be affirmed and promoted.”  Gupta’s own record of work on racial justice, immigrant rights, criminal justice reform and other critical U.S. human rights issues exemplifies such a path-breaking approach. 

Vanita Gupta’s appointment and pending nomination have already been praised in many quarters, crossing political divides.  U.S. human rights lawyers and activists also have reason to be encouraged by this nomination.

Civil Debate

Judges, lawyers and others in the profession have been troubled for at least the past decade over the decline in lawyers' civil behavior.  Judges were among the first to observe this phenomenon.  Lawyers appearing before them were becoming more rude to both the judges and opposing counsel.  Lawyers reported similarly disrespectful behavior in professional interactions with opposing counsel. Commentators speculate as to causes of this behavior.  In their book, The Good Lawyer, Seeking Quality in the Practice of Law, authors Linder and Levitt report the opinion that the more impersonal the practice becomes, the less civil lawyer behavior can be.  When electronic communication replaces in person discussion, there are fewer consequences to offensive behavior.  Relative anonynimity can lead to a decrease in civil boundaries.  Without the consequences of confrontation or professional and social ostracism that can result when lawyers behave badly in a small community, there is less incentive for the so inclined to incorporate respectful boundaries into their daily discourse.

So it was with interest that I followed the debate that resulted from the Ford Foundation's publication of responses to its posed question   "When Markets Lead, Will Justice Follow?"  On October 8th, Cathy Albisa, executive director of the National Economic and Social Rights Initiative (NESRI) wrote a response posted on this blog.   The response, in the words of one commentator, "is not an attempt to target or bash Ford Foundation. Instead, it is a carefully calibrated response to the foundation's position."   In an age when civility can be set aside during debate, Ms. Albisa's response is a reminder that those who disagree on important social and humanitarian issues can do so through civil debate.

New Human Rights Casebook Focuses on Advocacy in the U.S.

There's a new casebook in town!  Joining the roster of excellent texts on international human rights law is a new and unique law school textbook focused (like this blog) on bringing human rights home to the U.S.:

 

Human Rights Advocacy in the United States, by Martha F. Davis, Johanna Kalb and Risa E. Kaufman (West Oct. 2014) 

 

A link to the West webpage on the book is here.  A Teacher's Manual will be available in November. 

 

According to the publisher:

 

This pedagogically innovative book is the first of its kind to focus on human rights advocacy in the United States, illuminating a range of important theoretical and doctrinal issues while equipping students to thoughtfully engage these tools in their own practice of law. Readings and case studies expose students to the history, tools, and critiques of the domestic human rights movement and the legal and practical challenges of human rights implementation in the United States. Skills exercises introduce practice-oriented approaches to engaging human rights-based strategies, including practice before international treaty bodies as well as domestic policymakers. Additionally, the appendices offer the text of relevant human rights treaties.

Appropriate for introductory and advanced seminars, as well as clinical and other experiential offerings, the materials engage students on a remarkable range of issues, including immigration, rights of indigenous peoples, counterterrorism and human rights, disparities in access to health care, and the right to housing, while also exploring fundamental issues of federalism, sovereignty, judicial review and legal ethics. 

 

Upcoming Human Rights Conferences

This year marks the This year is the 25th anniversary of the adoption of the UN Convention on the Rights of the Child.  Children's Rights Connect and NewTactics.org is hosting an online tactical dialogue,  Improving Access to Justice for Children and Teens from October 13th to 17th, 2014. 

The conversation sponsors make the following observations:

"...[C]hildren often face additional obstacles to those encountered by adults because of their dependent status and lack of standing, the potential conflict of interest with their legal representative(s), the lack of information that is available to them, or simply because they are not taken seriously when they need to seek remedies because their rights are violated.

Making justice systems accessible for children takes work at the local, national, regional and international levels, and needs to include children's opinions in the process. In addition to challenges, we will discuss ideas for facilitating children’s access to justice, such as collective complaints, positive representation of children by NGOs or others and protection of the identities of child victims."

Here is more information for those who wish to join the conversations. HRAH Blogger Jonathan Todres will be one of the conversation leaders.

Rutgers University-New Brunswick will host a one-day conference on the consequences of rising income inequality.  The conference, Income Inequality and U.S. Politics and Culture,     ers will include speakers such as Lisa Miller, Helaine Olin, Vanessa Williamson, Mike Konczal and Beverly Moran.  The conference announcements states:

    Since the 1970s, the United States has witnessed a sharp divergence in economic fortunes, as the     incomes of the wealthiest Americans have exploded while middle-class incomes have largely     stagnated. This conference considers the effects of growing income inequality on the worldviews,     policy ideas, and institutional practices of major U.S. political parties, electoral campaigns, and     social movements.

The conference will be held from 10-4 on October 24, 2014.  More information may be obtained here. 

 

A Human Rights Code of Conduct

 By Lauren E. Bartlett

 For the past three years, I have been directing the Local Human Rights Lawyering Project at the Center for Human Rights & Humanitarian Law at American University Washington College of Law.  The Project aims to normalize international human rights law at the local level by incorporating the use of the international human rights framework into the everyday work of legal aid attorneys in the U.S.  The Project has a goal of not only integrating human rights arguments into advocacy, but also using the human rights framework to create shifts in internal office systems and staff-client relationships at legal aid organizations.  I want to share with you what our office has done to this end, as well as what Maryland Legal Aid, one of our Project Partners, has done.

 In our initial discussions with legal aid offices about integrating human rights into office systems and the client-staff relationship, it became clear that there was a need to both articulate the specific human rights principles that could apply and clearly explain how they might apply in the legal aid context.  We wanted to focus on simple, yet ambitious and aspirational principles, such as treating all people with respect and as an equal at all times. Moreover, we wanted the principles to apply to everyone involved in legal aid work: clients, attorneys, administrative staff, supervisors, interns, etc.—the legal aid office as a whole.  In the end, it seemed that a draft code of conduct might be the best way to practically lay all of this out.  Using a number of social work codes of ethics which integrate and/or reflect human rights principles as models, I drafted the following, which I called ‘Human Rights Principles for Legal Aid’:

 1.  Human Dignity

Treat all people with respect, not as a gesture of charity but as an act of justice. Respect the inherent worth of each individual, each family and their communities. Be patient, kind, and on time. Listen with empathy.  Communicate with understanding and honesty. Keep private information private. 

 

2.   Participation and Self-Determination

Meaningfully involve clients in identifying problems, goals, planning and case strategy. Empower clients to tell their own story and advocate for themselves. Clearly and simply explain the law and process, clients’ rights, the role of Legal Aid, and the role of the client.

 3.   Equality

Respect all others as your equal. Recognize strength in diversity. Take responsibility for discrimination based on your own beliefs, including but not limited to discrimination based on mental health, sexual orientation, homelessness, education level, age, political opinion, culture, source of income, and place of origin. Work to end all discriminatory acts in your office, as well as in your community. 

 4.   Solidarity

Foster teamwork among clients and staff. Constantly challenge the traditional power structure of the client-staff relationship. Recognize your strengths and your client’s strengths and invest those strengths in shared responsibilities. Stand with your clients and fellow staff members to fight poverty and expand rights for the most vulnerable.

5.   Innovation

Pursue creative remedies towards shared goals. Litigation is only one option among many. Ask what more you can do to counsel, educate, and advocate for your clients and their communities. Encourage your client to use other tools including community education, organizing, legislation and civic participation. Consider using international and regional mechanisms such as special rapporteurs, United Nations treaty-body monitoring committees and the Inter-American Commission on Human Rights.

 While discussing these draft principles with my colleagues, our Advisory Board, and our legal aid project partners, it became clear that thinking about human rights principles and office behavior could shift dramatically during the course of the conversation.  For example, in one conversation I had, an advocate went from thinking that there was no reason to include the principle of human dignity because it was too obvious, to seeing that principle as the key part of the whole document.  It seemed that involving staff members in the process of discussing the human rights principles and being involved in drafting the written code might be just as important as the final product. 

In 2012, Maryland Legal Aid decided to draft their own human rights code and dedicated their yearly all-staff human rights training day to the process.  During that training, staff from each office broke into small groups and went through the Universal Declaration of Human Rights to pull out key human rights and language that they thought were most important to the conduct of Maryland Legal Aid staff towards clients.  An organization-wide subcommittee was later formed which compiled all of the notes from the all-staff training and eventually developed the Maryland Legal Aid Guiding Principles for Staff-Client Relationships. That document was also shared with clients for input, and once it was finalized, it was turned into a poster that now hangs in Maryland Legal Aid offices across the state.

 Last year, the Center for Human Rights and Humanitarian Law also developed a human rights code that guides our interactions and work.  The Center is much smaller than Maryland Legal Aid and our staff members are all very familiar with human rights framework on the whole. Therefore, we were able to sit down together and in a single afternoon we put together a draft, which we then reviewed with students, faculty and colleagues at American University Washington College of Law.  We finalized our guiding human rights principles document late last year and it is now posted in our offices and on our website.  We also periodically review the principles at staff meetings and when we face big decisions regarding staffing or outside conflicts.  For us, this process underlined the fact that we should not only advocate for the application and expansion of human rights law, but also practice applying human rights principles to daily decision-making and interpersonal relationships, to truly be a human rights attorney.

 I am sharing this with you all because I think this has been a great exercise for us and for Maryland Legal Aid.  This could be a great process for students, as well as other offices.  For more information on the human rights principles above and a comparison of the human principles to the American Bar Association’s Model Rules of Professional Conduct, please see Section 3.6 of our Human Rights in the U.S. Handbook for Legal Aid Attorneys.

Sustainable Development Goals and U.S. Human Rights

 By Risa E. Kaufman, Columbia Law School Human Rights Institute

 Late September was a busy time at UN headquarters in New York. The 69^th Session of the UN General Assembly opened on September 16, bringing together the world’s leaders for discussion of such heady topics as global terrorism, nuclear disarmament and the prevention of armed conflict.  Also on the agenda was discussion of the Sustainable Development Goals, or SDGs.  It’s a conversation that U.S. human rights advocates should pay attention to. 

The SDGs will replace the eight Millennium Development Goals (MDGs), which were adopted by the UN back in 2000 to alleviate global poverty.  The MDGs, which expire in September 2015, have accomplished a great deal, by some measures halving the number of people in the world living in extreme poverty and improving access to clean water, health care and education.  But they have fallen short in other areas and been roundly criticized by many international human rights advocates and organizations for ignoring the interrelated nature of rights and failing to address systemic barriers and underlying inequities and disparities.

Expiration of the MDGs has inspired a robust conversation within the human rights community about what a more universal and holistic set of goals to eradicate poverty might look like.  Groups including the Center for Economic and Social Rights, the Center for Reproductive Rights and CIVICUS have formed a post-2015 Human Rights Caucus and developed a human rights “litmus test” for the SDGs.  The Caucus calls for the SDGs to align with, and explicitly reference, relevant human rights standards; secure the full spectrum of rights; combat inequality and commit to end discrimination; and support the human rights of women and girls.  In addition, the Caucus calls for the SDGs to be premised on universality, indivisibility and interdependence; to ensure transparency and meaningful participation of all people; and to ensure human rights accountability of all actors, including in the private sector.

Civil society, including many international human rights NGOs, have been active participants in the initial conversations about the post-2015 development agenda, including through participation in Rio +20, the UN Conference on Sustainable Development which took place in June 2012 in Rio de Janeiro, Brazil.  In July 2014, building off of the outcomes from Rio +20, the Open Working Group for Sustainable Development Goals issued a Proposal, which is intended as a starting point for the state-level discussions on the SDGs that will take place over the course of the coming year.  But now negotiation and drafting of the final goals rests with the member countries of the UN, in what will largely be a political process. 

What does this all mean for the U.S. human rights community?  While the content and text of the SDGs won’t be final until September 2015, there appears to be fairly broad consensus that they will be premised on the understanding of universality.  The goals will apply to developing and developed countries alike.  Thus, the United States will be accountable for achieving the goals to the same extent as all other countries.  And while they may not explicitly reference human rights, if the Open Working Group’s Proposal is any indication, they are likely to address a more comprehensive set of issues than the MDGs, including access to justice, inequality within and among countries, and climate change. So, it’s an issue worth following, and indeed deserving of some deep thinking.  Just as U.S. advocates are developing creative approaches to hold the U.S. accountable for its international human rights treaty commitments, we should consider, too, how to make the SDGs real and meaningful close to home. 

De Facto Imprisonment and the Right to a Speedy Trial

by Brian Howe

There is not much available in the way of a comprehensive drafting history for the US Bill of Rights.  It is sometimes difficult or impossible to divine the specific intent of the framers when it comes to any particular clause.  You have to think, though, that when the right to speedy trial was inserted in the Sixth Amendment, Kalief Browder's case was the kind of case the framers had in mind.

Browder was a high school junior when he was arrested on robbery charges for allegedly punching a random passerby and stealing his backpack.  He proclaimed his innocence and pleaded not guilty, but could not afford bond.  Because of repeated delays, he would sit in jail for the next three years without a trial.  Much of that time was spent in solitary confinement, and Browder tried to commit suicide several times.  Twice he was offered a quick or immediate release if he would plead guilty.  Browder refused both times, steadfastly maintained his innocence, and continued to insist on a trial.  He would never get one.  Over 900 days after he was arrested, on his thirty first pretrial court date, prosecutors simply dismissed the charges and Browder was released.  He had just turned 20 years old.

 

The US Supreme Court has left some ambiguity as to the specifics of the Constitution's guarantee for a speedy trial.  And states can and should have flexibility necessary to set their own procedures within some broad boundaries.  But New York's system is broken.  According to a recent New Yorker article about Browder's case:

 

"The Bronx courts are so clogged that when a lawyer asks for a one-week adjournment the next court date usually doesn’t happen for six weeks or more. As long as a prosecutor has filed a Notice of Readiness, however, delays caused by court congestion don’t count toward the number of days that are officially held to have elapsed. Every time a prosecutor stood before a judge in Browder’s case, requested a one-week adjournment, and got six weeks instead, this counted as only one week against the six-month deadline. Meanwhile, Browder remained on Rikers, where six weeks still felt like six weeks—and often much longer."

 

There is  no reasonable explanation for why a prosecutor would request a one week delay to prepare, receive a two month extension, and then still be unprepared-- much less for this to continue for over two dozen hearings.   Browder's attorney in his pending civil suit suggests the delay here was intentional, that prosecutors knew they couldn't produce their witness and were trying to leverage a guilty plea.  Intentional or not, what happened to Browder appears to be extreme but indicative of a larger trend in NY's system, where a large majority of felonies sit for longer than 6 months before trial.

 

These lengthy pretrial detentions are not limited to New York.  Last month, the ACLU filed a class action suit on behalf of inmates held in Scott County jail in Mississippi, for up to a year without even being appointed an attorney.  

 

In Mississippi, the delay appears to be caused by the fact that only three grand juries are empaneled per year, and the state courts do not start their clock on speedy trial, or even appoint an attorney, until a formal indictment is issued.  So suspects are arrested, and given a bail hearing without a lawyer, and then wait up to 3-5 months for a grand jury.  If the case isn't brought to the grand jury at that time, then the arrestee just waits another 3-5 months for the next grand jury.  At no point prior to an actual indictment are indigent suspects appointed an attorney who could challenge improper bail, investigate their case, or begin negotiating with prosecutors. As a result, one plaintiff spent over three of the past five years detained in Scott County jail, awaiting trial on three separate charges.  According to the complaint, "he has only been indicted once, he has been to trial once, and he has never been convicted."

 

 It is hard to imagine a more serious human rights issue than de facto imprisonment without trial.  And it is hard to imagine the Supreme Court would find either of these cases constitutional.  But without strict and vigilant enforcement, the pressures on state systems will always be for greater pretrial delay and less access to appointed counsel.  Even absent any malicious intent from prosecutors, many state legal systems are chronically underfunded, and there is pressure to make the current case load work with as minimal staffing as possible.  Some of these systems could not function without lengthy delays, and these realities almost certainly influence states' own perception of their Sixth Amendment obligations.  The only effective remedy is repeated and strict enforcement from federal courts, which may be soon forthcoming in New York and Mississippi.

Related articles

Accused of Stealing a Backpack, High School Student Jailed for Nearly Three Years Without Trial

"Where Markets Lead, Will Justice Follow?": A Response to the Ford Foundation

On October 1, the Ford Foundation published a Ford Forum focused on the question: "Where Markets Lead, Will Justice Follow?"  The Foundation asked eight "changemakers" -- including Raymond Offenheiser of Oxfam America and Judith Samuelson of the Aspen Institute -- to reflect on this question and circulated their essays widely via e-mail and the web.  Other commentators have also published their analyses. 

Cathy Albisa, Executive Director of the National Economic and Social Rights Initiative, offers her critique of, and reflections on, Ford's question here:

The Ford Foundation posed the question “Where Markets Lead, Will Justice Follow?” to leaders in their fields.  Their responses varied in how they framed the market, the role of government, and the need for public goods.  But examining the question seems as important as reflecting on the answer. Why should markets lead? Markets are inherently undemocratic. Markets, as noted by some of the commentators, are only for those with the money to participate in them. And even if almost everyone participates in some aspect of the market, they remain profoundly undemocratic as your “vote” grows or shrinks depending on the amount of money you have. While we know democracy alone does not guarantee human rights, democracy remains an essential part of their character and practice, in particular given the centrality of the human right to participation in the systems, institutions and decision-making that determine basic rights. Is it then not the case that if markets lead in arenas that demand democratic processes, justice has already been compromised?

 Amartya Sen famously wrote “to be generically against markets would be almost as odd as being generically against conversations between people,” arguing that people will always exchange goods and services. I believe this is likely to be true, and probably a good thing. But the evidence does not support the premise that markets consistently distribute those goods and services in an optimal way. On the contrary, there are profoundly important markets that do anything but that. Healthcare is a market – albeit a heavily subsidized one – in the United States that allows thousands to die due to lack of care while costing more than publicly financed systems with better outcomes. Our private healthcare financing system has perverse incentives to deny care, although clearly the goal of a healthcare sector should be to provide care. Care and profit are desperately at odds in a private insurance system. Housing is a profoundly important market to our economy – yet we have three times as many empty homes as homeless people. And these are but a few of the market arenas in which human rights are seriously at risk. Clearly something is amiss.

 The questions we ask are often more important than the answers. They point to the paths we allow ourselves to consider and guide our thinking. Because markets are no more than vehicles towards other ends – profit, efficiency, growth, distribution, infrastructure -- we might want to avoid putting them at the beginning of the question. We must lead with our values and if we are concerned with the outsized role of markets, as we should be, what we need to be asking is “where human rights lead, will markets follow?”  In some cases the answer is a resounding no, such as healthcare financing. That market has been nothing short of calamitous. The scorecard on housing isn’t very good either, although we are very far from imagining a scalable alternative. And in our world dominated by indifferent markets, work fails to deliver a decent standard of living, dignity or fulfillment for far too many. Does that mean we reject all markets wholesale? That would be shortsighted and thoughtless. In fact, it would be as shortsighted and thoughtless as the market fundamentalism that has taken hold, where we fail to even consider alternatives and almost pathologically ignore the evidence.  Market fundamentalism, which I loosely define as an almost divine faith in the inherent value of markets, irrespective of the evidence, is among the greatest threats to human rights today. But can we create more democratic markets?  And can markets play a more constructive role? These are important questions, and we need to look for honest and realistic answers.

 There are some arenas, however, where markets have clearly demonstrated their incompatibility with human rights. When it comes to basic human rights, such as education, healthcare, housing, food, water and a basic standard of living, government must play whatever role is necessary. Nonetheless, given a range of markets are the source of great injustices, the other question we need to ask is how can we build the power to make markets follow at least the minimal human rights obligations? Judith Samuelson, of the Aspen Institute, states that what matters in terms of corporate social responsibility is CEO leadership. I can’t imagine a less tenable situation than human rights depending on who happens to have those jobs. It is far from a structural or reliable solution. So what is a solution and, just as importantly, how do we get there? Despite Ray Offenheiser’s claim that Oxfam was not seeing “the kind of transformative structural change that [they] were after” with grassroots work, one of the most transformative examples we have in making markets follow basic human rights standards is right here in the United States: the Campaign for Fair Food. The Campaign for Fair Food has been led by farmworkers themselves who have worked simultaneously downstream in communities, with consumers, and activist networks, as well as upstream in collaboration with corporations, but only after building an unstoppable movement to end abuses in the agricultural supply chain in our country. The Campaign has resulted in the Fair Food Program – a comprehensive complaints-based, monitoring and worker-to-worker education system powered by swift market consequences for violations – that represents a worker-driven social responsibility model meriting further support.  We should be learning from those experiences that shifting power dynamics so our human rights are not at the mercy of any specific individual’s largess. And as Mr. Offenheiser notes, we must move from corporate responsibility to corporate accountability, which requires strengthening the role of government not only in setting standards, but in actual enforcement.  

 Even with the question posed, to be fair, many of the respondents agreed that we must reject market fundamentalism and argued for public goods and infrastructure, while others took less clear positions. It is a healthy and valid debate, but only if paired with a questioning of all our underlying assumptions and a clear message that we must always lead with our values.