Human Rights at Home Blog

CAT Concluding Observations

Thank you to Risa Kaufman for forwarding the Concluding Observations issued following the recent U.S. review.

The observations may be found here.

 

Just Another Scapegoat: Blaming Federalism for Failed Human Rights Remedies

 By: Alexandra Tate and Elise Meyer

Jessica Lenahan Testifies with Prof. Carrie Bettinger Lopez and Santiago Canton (RFK Center) looking on.

 

 Alexandra Tate and Elise Meyer are law students in the University of Chicago Law School International Human Rights Clinic, supervised by Human Rights at Home Contributing Editor, Professor Caroline Bettinger-Lopez. In part one of this discussion, Tate and Meyer discuss the background to the October, 2014 hearing held at the Inter-American Commission on Human Rights in the Lenahan Matter.  They write:

Large-scale responses to domestic violence have been all over the news lately. Whether it’s related to the NFL, campus sexual assault, or a recent hearing at the Inter-American Commission on Human Rights (IACHR), domestic violence is in the spotlight. While the NFL and campus sex assault focus on the role large and oftentimes non-governmental institutions play in perpetuating domestic violence, the IACHR’s October 2014 hearing on Jessica Lenahan (Gonzales) v. United States prompts us to think about our government’s role at the federal and state levels. While the hearing saw some positive developments—such as the U.S. government showing greater openness to the Commission’s review of alleged human rights violations in the U.S.—it also demonstrated the U.S. government’s reluctance to think expansively about how to overcome challenges posed by federalism in addressing problems relating to domestic violence in Colorado.

In 1999, Jessica Lenahan’s three young daughters were abducted by her estranged husband and killed after the Castle Rock, Colorado police refused to enforce a restraining order against him. Ms. Lenahan filed a suit in federal court in Colorado against the Town of Castle Rock, alleging that the police department’s failure to respond to her complaints of restraining order violations, resulting in the deaths of her three daughters, violated her constitutional right to due process. The case made it all the way up to the Supreme Court but was dismissed after Justice Scalia, writing for the court, held that, despite a mandatory arrest statute and a message on the back of the restraining order that ordered police officers to arrest restrained persons, the enforcement of a restraining order was not mandatory under Colorado law.

Having exhausted domestic remedies, Ms. Lenahan brought her case to the international arena, specifically the IACHR (a tribunal in which individuals can bring complaints against countries in the Americas). Ms. Lenahan is the first domestic violence victim to bring a case against the U.S. before an international human rights tribunal. In 2011, the IACHR found that the U.S. had violated the human rights Ms. Lenahan and those of her three daughters. Specifically, the IACHR found that the U.S. had discriminated against Ms. Lenahan and did not provide equal protection to her and her daughters by failing to act with due diligence to protect them from domestic violence. The IACHR recommended that the U.S. conduct an investigation into the cause of the daughters’ deaths and enact comprehensive reforms to protect domestic violence victims across the U.S. Fifteen years after the abduction, no independent investigation into the cause her daughters’ deaths has been conducted. Although the IACHR’s decision is arguably legally binding, there is no body to carry out its enforcement.

The October IACHR hearing was convened to evaluate the U.S.’s implementation of these recommendations. Representing Ms. Lenahan at the hearing were the University of Chicago Law School International Human Rights Clinic (in which we are students); University of Miami School of Law Human Rights Clinic; Rashida Manjoo, the UN Special Rapporteur on Violence Against Women; ACLU Women’s Rights Project; Columbia Law School Human Rights Institute; and Robert F. Kennedy Center for Justice & Human Rights.

 See Monday's Post for details on the US failure to provide human rights remedies.

 

Happy Thanksgiving!

We wish you a Happy and Peaceful Thanksgiving.

We are grateful for our co-editors, guest authors, our readers and all others who take an interest in and support the Human Rights at Home Blog.

Martha Davis

Margaret Drew

 

 

Teaching Ferguson

Thank you to Carrie Bettinger Lopez for forwarding this message from her colleague.

The author, Professor James, would like to know how others are approaching the discussion.  We welcome your comments. 

 

 

 

Colleagues,

 

I am writing to ask all of you that teach today, regardless of what subject you teach, to consider acknowledging Ferguson and the jury's return of 'no true bill' in your classrooms today.  I am not asking you to agree or disagree with the jury's return, but rather to simply acknowledge the issues that Ferguson necessarily implicates, and to ask students to consider what it means when perceptions of the justice system differ so starkly by race. 

 

As we all know, there will be many students in our classrooms today who come from communities that do not believe they can trust law enforcement, and for them, the failure to indict will be another reminder that they don't see access to justice in their communities; a failure to discuss it in law school will be a signal that their concerns are not valid here.  For many other students, they will be under the misimpression that although tragic, the issues that Ferguson implicates are neither their issues nor their problems, and that ensuring access to justice for all is merely the work of people of color, or civil rights attorneys, or lefty law professors.  Access to justice, however, is an issue for all of our students, and as a law school, we are called to help them reflect deeply and critically on the legal system they will be navigating in just a few short years.  

 

I know many of you already think very deeply about your pedagogy and will, in fact, be addressing Ferguson today.  I write, therefore, to support you in those efforts, and to encourage more of us to broach Ferguson with our students today.  

 

Kind Regards,

Osamudia James

Professor of Law 
University of Miami School of Law 

Death Penalty Drugs and the Transmission of Human Rights Norms

 

As widely reported in the media, states across the U.S. are experiencing severe shortages of death penalty drugs, with supply falling far short of demand.  Texas, for example, with 317 people on death row, has only two doses remaining of sodium thiopental, a key death penalty drug.  As also widely reported, the shortage can be directly traced to the European Union's ban on exporting drugs used for execution -- a policy adopted nine years ago by the EU in a deliberate move to support abolition of the death penalty worldwide.

Exploring this development in depth, an article recently posted on SSRN connects the dots to argue that international human rights norms are at its core, albeit transmitted through the market rather than through usual international institutions.  The article, by James Gibson and Corinna Lain, both of the University of Richmond School of Law, is Death Penalty Drugs and the International Moral Marketplace, forthcoming in Georgetown Law Journal, v. 103 (2015).  The abstract follows:

Abstract:      

Across the country, executions have become increasingly problematic as states have found it more and more difficult to procure the drugs they need for lethal injection. At first blush, the drug shortage appears to be the result of pharmaceutical industry norms; companies that make drugs for healing have little interest in being merchants of death. But closer inspection reveals that European governments are the true instigators of the shortage. For decades, those governments have tried — and failed — to promote abolition of the death penalty through traditional instruments of international law. Turns out that the best way to export their abolitionist norms was to stop exporting their drugs. 

At least three lessons follow. First, while the Supreme Court heatedly debates the use of international norms in Eighth Amendment jurisprudence, that debate has largely become an academic sideshow; in the death penalty context, the market has replaced the positive law as the primary means by which international norms constrain domestic death penalty practice. Second, international norms may have entered the United States through the moral marketplace, but from there they have seeped into the zeitgeist, impacting the domestic death penalty discourse in significant and lasting ways. Finally, international norms have had such a pervasive effect on the death penalty in practice that they are now poised to influence even seemingly domestic Eighth Amendment doctrine. In the death penalty context, international norms are having an impact — through the market, through culture, and ultimately through doctrine — whether we formally recognize their influence or not.

November 25th, International Day for the Elimination of Violence Against Women

From the United Nations Secretary General's website:

 

Orange the World in 16 days

 

From 25 November, the International Day for the Elimination of Violence against Women, to 10 December, Human Rights Day, the 16 Days of Activism against Gender-Based Violence Campaign is a time to galvanize action to end violence against women and girls around the world.  

This year, the United Nations Secretary-General’s Campaign UNiTE to End Violence against Women invites you to “Orange YOUR Neighbourhood.” Take the UNiTE campaign to local streets, shops and businesses, and organize “Orange Events” in your own neighbourhoods between 25 November and 10 December 2014. 
 
Reach out to your neighbours, local stores, food-sellers on the corner of your street, gas stations, local cinemas, barbers, schools, libraries and post offices!  Project orange lights and hang orange flags onto local landmarks, tie orange ribbons where you are allowed, and organize local ‘orange marches’ on 25 November to raise awareness about violence against women and discuss solutions that would work for your community. 

For more information click here.  

 

Top Six Reasons to Cover the Guiding Principles on Business and Human Rights in your Law School Class

On October 23, 2014, the International Bar Association issued the first ever Guidance for business lawyers and bar associations on the implementation of the United Nations (UN) Guiding Principles on Business and Human Rights.

Released in draft form, the IBA Guidance is the culmination of a six month drafting process.  The Guidance is divided into two working documents, one for bar associations (11 pages) and the other for business lawyers practising as in-house counsel and in law firms (60 pages). 

According to the IBA, the main aims of the Guidance for Bar Associations are to:

• Encourage bar associations to improve the understanding of the relevance and applicability of business and human rights principles;
• Urge bar associations to develop an overall strategy for integrating the Guiding Principles into the practice of law;
• Provide information to heighten awareness of the implications of the Guiding Principles; and to
• Serve as a training tool for current and future legal professionals.

For business lawyers the new Guidance:

• Explores the ways in which the Guiding Principles may be relevant to the advice that business lawyers provide clients, consistent with their professional ethical responsibility as lawyers to uphold the law, to act in their clients’ best interests and to preserve client confidences;
• Reviews potential implications of the Guiding Principles for law firms as business enterprises with their own responsibility to respect human rights, focusing on services rendered to clients; and  
• Will assist the representation of the legal profession in the design of business and human rights policies before policy makers, governments and legislatures.

Here, then, are the top six reasons for incorporating this material into your law school teaching, especially in legal ethics, corporations, or courses on the legal profession.

First, this is new material, that students may not encounter unless you introduce it; it will likely not appear in your casebook;

Second, major businesses, particularly those with international business operations, are well-aware of these principles.  They will expect lawyers to be aware of them as well and to take these issues into account in crafting legal advice and advising on human rights issues;

Third, lawyers -- often through bar associations -- should be taking a leadership role in promoting corporate responsibility.  Law  teaching that acknowledges lawyers' role will set the stage for that leadership;

Fourth, for lawyers, the Guidance supports not just good advice, but good ethical advice, that acknowledges the role of lawyers in promoting larger community needs as well as their individual client's goals;

Fifth, students will enjoy covering this material, which dovetails nicely with the social change goals that draw many folks go to law school; and 

Sixth, we "make the road by walking," and teaching this material will inevitably strengthen it and expand the dialogue about business, human rights and the law, as well as encouraging greater attention from U.S.-based law firms and bar associations.

 

Related articles

Human Rights Guidance for Corporate Lawyers

Nurse at Risk for Refusing to Force Feed Guantanamo

With thanks to Sarah Dougherty of Physicians for Human Rights (PHR) and the Bringing Human Rights Home network, we post the following statement just issued by PHR.  More background on the general issue of forced feeding and on this case in particular is available here from Lesley Wexler's blog on the topic, and in Martha Davis's blog post of May 27, 2014:

Navy Nurse Should Not be Punished for Declining to Force-Feed Guantánamo Detainees

PHR Welcomes American Nurses Association’s (ANA) Statement Supporting Nurses’ Professional Autonomy

 New York, NY - 11/19/2014

Physicians for Human Rights (PHR) today welcomed the American Nurses Association’s (ANA) statement supporting a nurse who refused to force-feed Guantánamo detainees based on his professional ethical obligations. PHR urged the U.S. Navy to end any disciplinary actions against the nurse, who has been charged with misconduct and faces potential discharge from the military.

“Nurses, like physicians, have professional duties to respect the autonomous decisions of their patients and never participate in ill-treatment or torture,” said Dr. Vincent Iacopino, PHR’s senior medical advisor. “This nurse has shown exemplary commitment to his profession’s ethics by refusing to comply with a military policy that has no clinical justification and is inherently harmful. The Navy should not punish him for refusing to compromise established ethical principles.”

Today’s statement represents the first time the ANA has spoken publicly about force-feeding at Guantánamo, signaling the wider nursing community’s interest in the nurse’s situation and the military’s treatment of medical professionals. The ANA also released communications it had with top defense officials urging them not to punish the nurse for exercising his professional rights and duties. PHR emphasized that the codes of conduct for nurses and physicians mandate respect for patient autonomy and the principle of doing no harm, and that military clinicians are legally and ethically bound to comply.

The Navy is considering holding an administrative trial that could lead to the nurse’s discharge from the Navy, in which he has served for 18 years. His decision not to participate in force-feeding was revealed through Abu Wa’el Dhiab, a Guantánamo detainee challenging his force-feeding in federal court. Dhiab’s case has shed light on the cruel and unnecessary methods used at Guantánamo, including the use of five-point restraint chairs and forced cell extractions.

“All physicians and nurses share a duty to put their patients first and act in their best interests, no matter the circumstances,” said Widney Brown, PHR’s director of programs. “Punishing this nurse for upholding the humane treatment of his patients sends a message that medical professionalism is not respected at Guantánamo.”

The World Medical Association and the American Medical Association are among the leading medical groups that prohibit force-feeding of competent adults. PHR said that health professionals should never take part, and pointed out that the main purpose of the Department of Defense’s force-feeding policy is to keep detainees from protesting over a decade of indefinite detention without charge. In response to criticism of these practices, the U.S. government has applied secrecy rules to any information regarding its treatment of hunger strikers.

PHR calls on the U.S. government to:

• ·         Immediately end the practice of force-feeding hunger strikers and institute policies and procedures consistent with the World Medical Association’s Declaration of Tokyo and Declaration of Malta on Hunger Strikers;
• ·         Ensure that no health professionals are compelled to participate in force-feeding, and that those who refuse do not face disciplinary or retaliatory actions for complying with their professional obligations; and
• ·         Commit to full transparency around hunger strikes at Guantánamo and medical management policies and protocols, including the release of Dhiab’s force-feeding videotapes.

 

Public Shaming as a Tool in Human Rights Violations

Over the years I have observed, and represented,  individuals who were so humiliated by the court that they determined not to pursue remedies against their abusive partners.  As with other forms of discrimination, many incidences of this form of abuse go unadressed because the target of the humiliation is too discouraged to permit further action.   Let me describe two incidents of which I am aware and verfied through transcripts and discussions with the principals.  

One woman sought a civil protection order against a man who had sexually assaulted her on two occassions.  The first time was as she was walking into her apartment building.  The second happened when the individual broke into her apartment and assaulted her.   The unrepresented woman explained to the court the circumstances of the assaults by the man who up until the first assault was unknown to her.  The judge's response, in denying the protection order, was to ask if she had heard the saying "Fool me once, shame on you; fool me twice, shame on me."  The woman was absolutely devasted, as you might expect.

On another occasion, a judge denied a protection order after hearing that theh oarties had sex within the prior few weeks.  The judge in that instance interpreted the petitioner's act as evidence that she was not afraid of the intimate partner.  Upon learning that the petitioner was receiving public benefits, the judge instructed her to turn around. The judge then announced that the petitioner had just wasted money of the taxpayers who were supporting her by bringing her frivilous petition.

In both instances, attorneys approached the petitioners and offered to assist with any further actions.  Both petitioners were too humiliated and embarrassed to pursue further action. 

While these incidents might seem extreme, these and more subtle forms of humiliation are often employed by government representatives to silence those who bring claims of abuse and other forms of discrimination.  The frequency of public shaming and other forms of humiliation that ar employed to maintain control over a targeted group are innumerable.  This is particularly so for those who have been oppressed by institutional as well as individual discrimination.  These are examples of just one of the situations where human rights advocates can make a positive difference in the lives of the oppressed.  Even if no further action is taken, validating the experience of the survivor makes is significant.

The AALS Section on International Human Rights

    The Association of American Law Schools (AALS)'s Section on International Human Rights was founded in 2000, emerging from the first AALS Workshop on Human Rights in 1999.  The Section immediately inspired the publication of a Human Rights Module on crimes against humanity for use in human rights and international law courses.  Since its inception, the Section's activities have expanded, and it now sponsors a number of activities to stimulate and support scholarship on international human rights, including an annual call for papers and special programs during the AALS annual meeting each January.
 
     The Section also publishes a Newsletter.  Professor Richard Klein, the current Section chair, recently circulated an invitation for Newletter submissions on member activities, including "any news of articles or books that you may have written or that you think would be of general interest for our membership to know about."  In addition, Professor Klein invited submissions of short essays "on a timely human rights issue that you would wish our membership to read," and notices of upcoming human rights-related conferences.

    Readers of this blog will want to make sure that the AALS Section's newsletter includes highlights of recent human rights work in the U.S. -- for example, the systematic work of human rights clinics to spearhead local human rights resolutions on violence against women  or new scholarly publications focused on human rights and U.S. immigration laws.

    Member submissions to the AALS Section's Newsletter should be made by Monday, November 24, to [email protected].    

 

  

Upcoming Human Rights Training in Portland, Oregon

By Lauren E. Bartlett

 On December 12, I am participating in a human rights in the U.S. litigation and advocacy training in Portland, Oregon, with the Portland Chapter of the National Lawyers Guild and Prof. Gwynne Skinner.  The training is open to all legal aid attorneys, public defenders, other public interest attorneys, professors, law students, and members of community organizations.   This day-long training will provide practical strategies, sample arguments, and resources to integrate human rights into daily work at the state and local level in the U.S.  5.5 CLE credits are available for Oregon-licensed attorneys and registration is available online.

 This is the most recent human rights training organized by the Local Human Rights Lawyering Project 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.  Last year we held similar trainings with colleagues in New York City, Miami and Irvine.  We have also held a series of webinars on various issues including housing, international child abduction, domestic violence, disability rights and more.  The materials for our past trainings and videos of the webinars are all available for download on our website.   The Project’s Human Rights in the U.S. Handbook for Legal Aid Attorneys  forms the core of our training materials and can also be downloaded from our website.  Since its formal launch in October 2011, the Project has trained more than 1,600 attorneys across the U.S. through in-person meetings and webinars and the Handbook has been distributed to more than 2,000 people. 

Report from Geneva: The Committee Against Torture Pushes the U.S. on Youth and Gender Issues

by Cynthia Soohoo 

As expected, during this week’s review of the U.S.’s compliance with the Convention Against Torture, the Committee Against Torture chastised the U.S. on Guantanamo, prison conditions and solitary confinement. Less expected – but equally significant – was its tough stand against violence and detention of youth and sexual and gender violence. 

Prior to the review, the Committee received information from U.S. NGOs across the country coordinated by the U.S. Human Rights Network. Here in Geneva, they heard the moving testimony of Lesley McSpadden and Michael Brown, the parents of Michael Brown, Martinez Sutton, whose sister Rekia Boyd was shot by a Chicago police officer, Anjelique Wadlington, who was incarcerated as a youth in New York, and the inspiring advocacy of the We Charge Genocide Campaign around police violence against youth against color in Chicago.

U.S. activists also testified about serious gender and sexual violence issues. The Committee heard from Sam Brinton and Samantha Ames about the dangerous use of conversion therapy against LGBT youth, from Monica James about police and custodial violence against transgender women, from Barbara Blaine about priest sexual abuse, from Stephanie Schroeder about sexual violence in the military, and from Women’s All Points Bulletin and Black Women’s Blueprint on rape and sexual assault by police officers. 

The advocacy and information provided to the Committee clearly had an impact. During the review, the Committee asked several questions about around police violence against youth of color in Chicago, including the deadly use of tasers. They asked about the numbers of youth being held in adult jails and prisons and about sexual abuse and solitary confinement of youth. They also questioned the U.S. about the detention of unaccompanied minors and migrant families. 

Several Committee members asked about the use of conversion “therapy” on LGBT youth. They also expressed concern about police harassment and violence against transgender women and the treatment of LGBT detainees and sexual abuse by the police. The Committee questioned the U.S. about the shackling of pregnant women in detention and the lack of access to sexual and reproductive health care in immigrant detention. They also pushed the U.S. to address legal and structural barriers that prevent victims of sexual violence in the military and by the Catholic clergy from obtaining a remedy. 

The Committee’s concluding observations should come out on November 28.

Human Rights Clinic Issues Report on Solitary Confinement

Professor Deborah Weissman of the University of North Carolina School of Law announced that she and her students enrolled in the Immigration/Human Rights Clinic recently issued a comprehensive report on solitary confinement as torture.  

One of the many heart-wrenching details of the report is a section on prisoner narratives.  As one Illinois incacerated man reported:

"The C-MAX was said to have been designed to house the IDOC’s ‘worst of the
worst’ in an effort to help state authorities re-gain control of their prison system.
This couldn’t be further from the truth because most of us have been sent here
based merely on the fact that we have mental illnesses or in retaliation for filing
lawsuits, grievances, or past disciplinary histories...This facility functions more as
a mental institution than a prison of rehabilitation and it serves no penalogical
purpose other than to warehouse prisoners. As the duration of our isolation drags
on and the degree of our conditions of confinement deteriorate you begin to see
the psychological effect that this place has on us. We know that we will spend all
day in these cells with absolutely nothing constructive to do with our time and we
do not know if we will ever leave here. This knowledge overwhelms many of us
and it leads many of us to insanity, causing attempted suicide, suicide, body
mutilation, hanging, eating and throwing feces, and other extreme acts."

This report is particularly timely as this week the U.S. is reviewed in Geneva regarding its compliance with the Convention Against Torture.

The full report may be read here.

Child Survival and the Interdependent Nature of Rights

by Jonathan Todres

Children of domestic abuse victims are more likely to die before their fifth birthday than similarly situated children of mothers who were not abused, according to a new study by Samantha Rawlings and Zahra Siddique, Domestic Abuse and Child Health. In addition to child mortality data, the study examined other critical health issues including low birth weight and stunting, finding that “children of domestic abuse victims face an important long term disadvantage over their lifetime.”

Though the study focused on developing countries, it is consistent with results from studies in the U.S. and a reminder that adverse consequences for children are often unseen. In the U.S., more than 3 million children witness domestic violence in the home each year. The high profile case of Ray Rice generated justifiable outrage over his violent acts against his fiancé (now wife). Yet there was little mention of the impact on and consequences for their young daughter.

Human rights law is unequivocal: domestic violence is a human rights violation. The Convention on the Rights of the Child also mandates in article 19:

“States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.”

This obligation encompasses the harms suffered from witnessing abuse of other family members.

The child health consequences also remind us of the interrelated and interdependent nature of rights. Importantly, this includes vertical relationships among rights. Ensuring the rights of women can advance the rights and wellbeing of children. Similarly securing rights for all children, including girls, can ensure that girls develop into women who are aware of and able to realize the full range of their rights, including the right to live free of violence. Too often the connections between rights—both vertical and horizontal—are under-appreciated.

Ultimately, securing the rights of all individuals will require greater recognition of and accounting for the interdependent nature of rights and more partnerships between advocates focused on different treaties and rights.

For more information on the interrelated nature of rights, see:

Gillian MacNaughton & Diane F. Frey, Decent Work for All: A Holistic Human Rights Approach , 26 Am. U. Int'l L. Rev. 441 (2011),

Jonathan Todres, Rights Relationships and the Experience of Children Orphaned by AIDS , 41 U.C. Davis L. Rev. 417 (2007) 

Loretta Lynch's Qualifications

Loretta Lynch, President Obama's nominee for Attorney General, has had an impressive career as a federal prosecutor and the U.S. Attorney for the Eastern District of New York.  Interestingly, she has also had some direct experience with the international human rights system.  This past August, Lynch was a member of the United States delegation that traveled to Geneva to report on U.S. compliance with the Convention on the Elimination of All Forms of Racial Discrimination (CERD).

Lynch's testimony to the CERD Committee focused on criminal justice. While acknowledging that there is more to do, she defended the U.S. record stating that:

    From the reduction of the use of solitary confinement, to the expansion of the federal clemency     program, to our support for the retroactive reduction of penalties for non-violent drug offenders     to the reduction in the sentencing disparity between crack and powder cocaine, we have worked     to improve our criminal justice system in furtherance of our human rights treaty obligations.   We     look forward to the future and the opportunity to do even more.

International law is not likely to be a focus of Lynch's confirmation hearings, yet in a year when the U.S. has been reviewed under both CERD and CAT, with a Universal Periodic Review on the horizon, and with the Department of Justice playing an important role in these reviews, there may be some attention to her human rights positions.  Indeed, when Eric Holder testified during his confirmation hearings in 2009 that torture such as waterboarding violated international law, it made news.  There is little indication in Loretta Lynch's prior record that she has championed a human rights framework.  But given the range of human rights issues within the DOJ's ambit, Lynch's recent participation in the CERD review should be seen as enhancing her qualifications for the job of Attorney General.

Human Rights at the Border: Front and Center

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

 

 In the aftermath of last week’s election, the outlook for meaningful and rights-protecting immigration reform is bleak.  Nevertheless, the past few weeks have seen significant efforts by regional and international human rights experts and advocates to promote and protect the rights of people at international borders. U.S. human rights advocates have redoubled their efforts, as well.

 On October 22, U.N. Secretary General Ban Ki Moon presented a report to the U.N. General Assembly on the promotion and protection of human rights of migrant children and human rights at international borders. The report details human rights challenges and concerns such as systematic and arbitrary detention; conditions of detention; access to the rights to education, health, and adequate housing; use of excessive force by authorities; and interception and push-back practices.

To address the violations detailed in the Secretary General’s Report, the Office of the High Commissioner for Human Rights released “Recommended Principles and Guidelines on Human Rights at International Boarders,” setting out core obligations that already exist in international documents to guide human rights safeguards at borders.  U.S. migrants’ rights advocates have hailed the Guidelines as an important tool in the fight to address the human rights crisis at the U.S. border.

 In the week following the release of the report and guidelines, on October 27, human rights advocates held a hearing at the Inter American Commission on Human Rights (IACHR) to call attention to the U.S. border crisis.  The thematic hearing was requested by University of Pennsylvania’s Transnational Legal Clinic, The University of Texas School of Law’s Immigration Clinic, The ACLU, Women’s Refugee Commission, National Immigrant Justice Center, National Alliance of Latin American and Caribbean Communities, CEJIL, and the Washington Office on Latin America, and was accompanied by a request that the Commission issue precautionary measures. 

 The hearing followed on the heels of a visit by the IACHR to the southern U.S. border.  From September 29 through October 2, the Commission visited sites in Hidalgo, McAllen, Harlingen, Karnes City and San Antonio to monitor the human rights situation of unaccompanied children and families who have crossed the southern U.S. border. At the conclusion of the visit, the Commission issued a press release  noting grave concerns and urging the United States to improve conditions. The visit and press statement underscore the importance that the Inter-American human rights system is placing on the issue more generally. This summer, Inter-American Court issued an Advisory Opinion on the Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, setting out basic obligations and guiding principles under the American Convention and the American Declaration on the Rights and Duties of Man.

 And, of course, many of these issues and concerns will be raised this week during the U.N. Committee on Torture’s review of U.S. Compliance with the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.  U.S. human rights advocates have put issues such as prolonged and indefinite immigration detention and non-refoulement of asylum-seekers front and center at the review, likely to result in concrete and U.S.-specific recommendations from the Committee later this fall. 

 U.S. advocates are working round the clock to urge legislative and policy reforms and litigate challenges in U.S. courts on immigration-related issues. The recent attention and concern by international and regional human rights experts to violations at the border offer a potentially powerful boost to this critical work. 

Street Harassment and Human Rights

by Leigh Goodmark

 

This week’s gender violence controversy:  A woman walks through New York City cataloging the catcalls she draws as she walks.  An advocacy organization posts the video.  Commenters notice that the video only shows men of color harassing the woman on the street.  The organization responds that for various reasons, the white men were all edited out.  And the underlying point of the video is lost in the (both predictable and totally warranted) backlash—that a woman cannot walk down the street in New York City without men of all races commenting on her appearance, her failure to smile, her dress, and her body.

The controversy surrounding the Hollaback! video is unfortunate in that it obscures what is a real problem for all women, but particularly young women.  The right to walk down the street unmolested, unremarked upon, and unafraid should be a basic human right.  That right is jeopardized, however, by the catcalling, commentary, and hostility that many women face when they are unwilling to respond positively to this unwanted attention.  Such harassment reflects the sense of entitlement that some men feel to make their opinions about the women they pass on the street known, regardless of whether those opinions are sought or encouraged.  The extreme end of this exercise of entitlement?  Mary Spears, an engaged woman, was shot to death after she refused to give a man she didn’t know her name and phone number.

Title III of the UN Convention on the Elimination of All Forms of Discrimination Against Women requires states to take “appropriate measures…to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.”  One important question is what form efforts to combat street harassment should take.  In response to the Hollaback controversy, the New York Times Room for Debate offered a variety of perspectives on whether street harassment legislation is appropriate. Whatever one’s perspective on the need for legislation, however, it is hard to argue that women’s exercise and enjoyment of human rights and fundamental freedoms is not undermined by street harassment.  Legislatively or otherwise, states need to address this pervasive form of gender discrimination.

For prior posts on this topic click here and here.

Another City Declares Freedom from Domestic Violence A Human Right

As this blog has noted previously, due to the work of clinic law students, cities across the country have declared freedom from domestic violence to be a fundamental human right.  While visiting at Chicago this semester, Carrie Bettinger Lopez led her students in the effort for Chicago to join in the domestic violence resolutions.  On October 8, Mayor Rahm Emanuel's signature ensured that  Chicago would be the thirteenth city to adopt a resolution acknowleding domestic violence as a human rights concern.

Prof. Bettinger-Lopez, who is visiting with the University of Chicago Law School's International Human Rights Clinic, engaged clinicians across the country to encourage cities to adopt similar resolutions following the decision by the Inter-American Court of Human Rights in Lenahan v. United States.

The Chicago resolution specifically  commits the city "to respond diligently to acts of domestic violence, and that each of the city's departments shall incorporate the principles embodied in this resolution into their policies and practices." 

Related articles

Jessica Lenahan (Gonzales), domestic violence, and the Inter-American system of human rights: online resources

New Research on Impacts of Human Rights Treaty Ratification

 

A new article posted on SSRN enters into the ongoing debate on the effectiveness of treaties in promoting state parties' human rights compliance.  Professor Christopher Fariss of the Penn State Political Science Department argues in his new analysis, Human Rights Treaty Compliance and the Changing Standard of Accountability, that the positive effect of human rights treaty ratification greater than some scholars have previously asserted.  Here is the abstract:

Abstract:          

Researchers have puzzled over the finding that countries that ratify UN human rights treaties, such as the Convention Against Torture, are less likely than non-ratifiers to respect human rights. The changing standard of accountability -- the set of expectations that monitoring agencies use to hold states responsible for repressive actions -- masks real improvements to the level of respect for human rights and explains this anomalous finding. Using a novel dataset that corrects for systematic changes in monitoring reports over time, I demonstrate that the ratification of human rights treaties is associated with higher levels of respect for human rights.

 

 

Human Rights Magazine Looks at the Role of States

Quick, what's the name of the quarterly magazine put out by the American Bar Association's section on Individual Rights and Responsibilities?  If you're one of the thousands of members of this section, you'll know: it's Human Rights.

The ABA's IRR section was founded in 1966 with a mission to (1) raise and address often complex and difficult civil rights and civil liberties issues in a changing and diverse society; and (2) ensure that protection of individual rights remains a focus of legal and policy decisions, both within and beyond the ABA.  As the topics covered in Human Rights magazine demonstrate, that mission encompasses domestic civil rights, but also includes a growing emphasis on international human rights perspectives.

The current issue of Human Rights magazine, available on-line, is focused on states, including articles on education rights and the freedom to marry.  The issue closes with a profile of retired Oregon Supreme Court Justice Hans Linde, a champion of state court use of international norms as persuasive authority; see his majority decision on prison privacy issues in Sterling v. Cupp.

While Human Rights addresses issues from a decidely legal standpoint, with articles contributed by legal experts in their fields and civil rights taking the lead, several other magazines work the human rights beat with a more accessible, journalistic approach and a global reach.  Yes! Magazine is specifically focused on human rights, with a slogan of "dignity and freedom for all."  Likewise, The MaG has a worldwide focus for its human rights reporting, though unlike Yes!, The MaG is exclusively on-line.  And also in the on-line categody is Global Voices, a citizen media forum that includes many stories on human rights from around the world.

As the meaning of human rights continues to broaden within the U.S. legal community, beyond the limits of the term civil rights, Human Rights magazine will also likely continue to evolve and expand its human rights coverage and perspectives.