Human Rights at Home Blog

Arquette: A Wrong Turn, But Point Taken

Thank you, Patricia Arquette, for raising the issue of US women's equality.  I agree.  US women are in a sorry state.  I remember the momentum to pass the women's equal rights amendment and the shock and disappointment when it did not.  We are beyond our time for pressing this issue forward with the same intensity of the 70's feminists.  And, as Martha Davis points out, this is an opportunity to breathe life into the campaign for the ratification of CEDAW.

Where Ms. Arquette lost her way was in assuming that her world view is the norm.

In her initial comments, Arquette managed to minimize the status of women who by choice or otherwise have not given birth.  Presumably mothers of adopted children were also not included in this category addressed in her initial comment.  In the U.S., mothers have cultural and employment barriers that others do not encounter.  Organizations such as Mom's Rising bring attention to the special needs of mothers and children and the US policies that harm them.

We cannot minimize the role of childless women, including transgender women, whose leadership in the struggle for women's equality has been significant. But Arquette lumped those women, along with others, in with the general population of taxpayers and citizens which, by the way, excluded non-citizen immigrants and those women who are not working in paying positions.

And then, of course, Arquette, in her follow up remarks, called upon the LGBT community as well as people of color to support U.S. women's equality.  In one sentence Arquette managed to change her earlier remarks from an "it's about time" whoop, to a view that promotes the rights and needs of straight, white women .   The mistake of prior movements repeated.  Far from her awareness was the recognition of thousands of lesbians, particularly lesbians of color, and brown skin women everywhere, who encounter  barriers that white, cisgender, straight women never encounter. 

What I find interesting in reading various responses is that many commentators responded from places that reflect their own world view.   Lesbians pointed out their exclusion.  Women of color did the same.  Lesbians of color, well they recognized their exclusion even more deeply.  A few raised the exclusion of women who have not given birth as well as women who are not paid for their work and those who are not citizens. 

Here is my point:  Arquette was on the right road in pressing for action on women's equality.  Her world view caused her to take a wrong turn.  Her critics must not do the same thing.  A women is a sister, is a sister.  Straight, lesbian, transgender, brown, white, religious or not, documented or native, we are all sisters.  To exclude one is to offend us all.   The white feminists who preceded us were courageous and successful.  We can finish the job without repeating their exclusion of women of color, the gender diverse and others who live outside what many consider our cultural norm.

The feminine way is to embrace, rather than reject, those who falter. Let's thank Patricia Arquette for contributing to the cause and for igniting a new conversation.  Then let's move forward together with leadership from those historically deprived of recognition. 

Editors' Note:   Today marks the one-year anniversary of the Human Rights at Home Law Professors' blog.  Thanks to our readers and contributors for making this experiment a success!  And here's to another year of commentary, analysis, resource sharing on human rights!

 

Appointment of The First U.S. Special Envoy on LGBT Individuals

By Jeremiah Ho 

 

This week the U.S. State Department announced the appointment of Randy Berry as the first-ever Special Envoy for the Human Rights of LGBT Persons to advocate globally for the human rights of lesbian, gay, bisexual and transgender people. The creation of this position has broader implications than merely the symbolic. On the one hand, it does align with the Obama administration's historically progressive stance on the rights of LGBT individuals. From Attorney General Eric Holder's 2011 letter to Senator John Boehner that suggested judicially protecting sexual orientation at the same levels as we protect race and gender to the repeal of Don't Ask Don't Tell, this administration has been part of a vast transformation toward recognizing LGBT rights. This is in comparison to more than 60 years ago when President Eisenhower signed an executive order discharging LGBT individuals from working in the federal government.

On the other hand, it is also a step that moves beyond recognizing issues regarding LGBT individuals domestically, and takes the advocacy of the rights of LGBT individuals into foreign policymaking, where serious human rights violations of LGBT peoples are a concern because they still exist in various countries. Having a special envoy would centralize efforts to dialogue with and push countries where homosexuality and consensual same-sex intimacy are not only illegal but the accompanying punishments are very severe (e.g., imprisonment and/or death)--even those countries who are already on good terms with the U.S. It reaffirms the signal that the Obama administration is interested in protecting and preserving the dignity of LGBT people but now broadens that goal by directing protection beyond our borders. And it certainly puts into effect the Obama administration's original intentions of incorporating LGBT rights into U.S. foreign policy.    

It's intriguing to note that Secretary Kerry made it pretty clear that his criteria for filling this appointment were, amongst other requirements, that the person would be a career Foreign Service officer from within the State Department and also a diplomat by training. To me, it seems that there would likely be more sophisticated work that the State Department intends to give to the envoy than had the envoy been someone that would have served a more symbolic function by nature. It will be interesting to see how Randy Berry, who is the envoy and who has diplomat experience, works to pressure countries that act indignantly and even violently against their LGBT citizens.  He might be able to better influence the State Department in its foreign aid decisions, and play a part in pressuring countries from enacting anti-gay legislation. There are also trade implications as well, as the envoy could work with various U.S. government agencies and American companies doing business abroad to see how American economic and development programs could better service the needs of marginalized LGBT individuals internationally.  And lastly, it would also be very interesting to see how the envoy could in turn represent the U.S. in support of foreign leaders and governments that are progressive about its LGBT citizens.  

 One of the basic focuses of human rights law is with the concept of preserving and furthering human dignity because this idea goes to the root of modern concepts of human identity and experience.  Dignity is a reflection on one's right to be a free citizen in society, to be able to express oneself freely, and have ideas that are unencumbered by unnecessarily oppressive forces.  Such rights should also be distributed equally to all members of society.  When a government interferes with that freedom toward a particular group for no such reason other than bias, then there could be a violation of human dignity. An example of this result in the LGBT experience is when state laws in the U.S. before 2003 used to criminalize same-sex consensual sex acts--essentially with the effect of branding sexual minorities as criminals if they engaged in same-sex consensual sex.  In 2003, the Supreme Court in Lawrence v. Texas eventually found such laws unconstitutional.  If you read Justice Kennedy's majority opinion in Lawrence, he connected the idea that laws that interfered with individual privacy between consenting same-sex partners in this way violated their human dignity, and he referenced international case law that found human rights violations in identical circumstances to draw the line between the issues of Lawrence v. Texas with human rights concerns.  We saw this connection between LGBT rights and human rights again in U.S. v. Windsor when DOMA was found to demean or stigmatize the relationships of same-sex couples over opposite-sex couples. We'll likely see this connection between LGBT rights and human rights furthered this summer when the next same-sex marriage case at the Supreme Court (DeBoer v. Snyder) is determined.

The appointment reminds us that there are issues beyond marriage equality that affect LGBT individuals, and that their rights and dignity are still left unprotected in disproportionate ways compared to the protections of other groups in this country.

New Resource on Land Grabbing

As students start selecting topics for spring semester papers or Notes, many will want to explore the burgeoning issues around land grabbing.  Don't let them re-invent the wheel!  Jootaek Lee, of Northeastern Law School, has written a useful and timely research guide on land grabbing.  The paper, titled "Contemporary Land Grabbing, Research and Bibliography," will appear in the forthcoming Law Library Journal, v. 107 (Spring 2015).  Meanwhile, the complete paper can be downloaded from SSRN.  Here is the abstract:

Abstract:     

Researching contemporary land grabbing issues is complicated and more difficult than traditional land grabbing research which covered between the colonial period and the early twenty-first century.  Contemporary land grabbing research is difficult for researchers because of the complex reasons and motivations behind the contemporary land grabbing, the number of stakeholders involved, the interdisciplinary nature of research, the many different types of legal sources to search — international treaties, custom, jurisprudence, soft law, and domestic statutes and customary law — lack of empirical evidence, and scattered resources in many different places.  The research is a mixture of international and domestic legal research and legal and non-legal research.   In this article, I will first investigate the contemporary land grabbing and land alienation and their definitions and identify the difficulties of research.  Next, I will delineate various mechanisms and international principles which can be useful for the protection of the rights of indigenous and local people from the attack of State and non-State actors.  Finally, I will selectively review several books and articles with annotations which I believe will provide great starting points for contemporary land grabbing research.

 

 

What Patricia Arquette Got Right

Many in social media and elsewhere have weighed in on Academy Award winner Patricia Arquette's statements at the Oscar award ceremonies, where she won Best Supporting Actress for her role in Boyhood.  In her acceptance speech, she called for equality for women, and particularly for equal pay.  Mega-stars Meryl Streep and Jennifer Lopez whooped their approval.  But in a press conference following her award, Arquette elaborated and urged LGBTQ activists, people of color and others to get behind women's equality.  Some criticized her for minimizing the equality struggles of these groups and seeming to suggest that they should wait their turn.  Later, Arquette tweeted that "[w]age equality will help ALL women of all races in America. It will also help their children and society."  With that, maybe this tempest can be laid to rest -- or better, taken as an opportunity to expand the conversation, as thoughtfully suggested by Imani Gandy at RH Reality Check. 

Meanwhile, what has received virtually no attention is Arquette's perspective on American exceptionalism.  Said Arquette during her press conference:  “Equal means equal. . . . It’s inexcusable that we go around the world and we talk about equal rights for women in other countries and we don’t [address it here.]”

Arquette specifically called for passage of the Equal Rights Amendment.  CEDAW ratification would, of course, also continue the pressure to achieve women's equality within the U.S.  But whatever the legal vehicle for promoting greater social equality, everyone who cares about the plight of marginalized groups in the U.S. should applaud Arquette's willingness to speak out to millions of Americans with the message that human rights begins at home. 

Health Journals Seek Human Rights Submissions

Two health-related journals are seeking submissions addressing human rights issues.  First, the influential Journal of the American Medical Association (JAMA) is planning a 2015 theme issue on trauma associated with violence and human rights.  For the issue, which will be published in August 2015, JAMA is soliciting papers on trauma resulting from unintentional and intentional injury, from interpersonal and community-levels of violence, and from mass conflict, war, displacement, and natural disasters.

According to the JAMA announcement, "[a]uthors may submit manuscripts addressing any topic related to trauma, injury, violence, war, civil conflict, disaster, and human rights abuses. We are particularly interested in manuscripts reporting on studies of interventions to address the effects of trauma, new modes of management and treatment, and optimal systems of care in a variety of settings. Randomized clinical trials of preventive, therapeutic, or rehabilitative interventions are of primary interest, but we will also consider reports of observational studies and systematic reviews that address new and important findings as well as scholarly Viewpoints that address timely topics on clinical management, research, and policy related to trauma, violence, or human rights."

Manuscripts received by March 15, 2015, will have the best chance of consideration for publication in the JAMA theme issue. More information about submission procedures is here. 

Second, the open access Health and Human Rights Journal, edited by Dr. Paul Farmer and Carmel Williams, is soliciting submissions for its special issue on Tuberculosis and human rights.  According to the call for papers, TB and human rights is a neglected topic.  Possible subjects to be addressed in the special issue, slated for June 2016, are: 

    -- The individual rights and entitlements of people living with and vulnerable to TB;

    -- The obligations of States and non-state actors under human rights law to respect, protect and fulfill rights, including through prevention measures, and diagnosis and treatment;

    -- The role of human rights in promoting the availability, accessibility and acceptability of good quality testing and treatment for TB;

    -- The impact of stigma and discrimination in the lives of people living with and vulnerable to TB;

    -- The situation of key affected populations;

      --The State’s duty to protect against violations of human rights by non-state actors, such as pharmaceutical companies and private health providers.

Submissions should be received by September 20, 2015.  Guidelines for submission are here.

 

Judges, Lawyers and Bank Fraud

Recently, the New York Times reported on "Two Judges Who Get It About Banks".  Decisions by the two judges addressed unscrupulous and illegal bank practices, in these cases by Wells Fargo, that led to wrongful foreclosure.  The cases are demonstrative of the deceit and fraud that caused much of the mortgage foreclosure crisis. 

The first case involved a wrongful foreclosure against Mr. and Mrs. Holms.  They were told that a payment of  $10,000.00 would stop the foreclosure and if they faxed a copy of the check to Wells Fargo that the foreclosure scheduled for the next day would be cancelled.  The couple managed to raise the funds, faxed the check copy and Wells Fargo proceeded anyway.  The couple learned as soon as a lawyer was retained that they had a viable defense to the original foreclosure.  

“Defendant Wells Fargo’s deceptive and intentional conduct displayed a complete and total disregard for the rights of David and Crystal Holm,” wrote Judge R. Brent Elliott, a circuit judge in Missouri’s 43rd Judicial District, in his Jan. 26 opinion. “Wells Fargo took its money and moved on, with complete disregard to the human damage left in its wake.”  The court awarded the Holms $200,000.00 in actual damages, attorney's fees and nearly $3,000,000.00 in punitive damages.

In the second case, New York Bankruptcy Judge Drain, heard a separate case involving Wells Fargo.  In that case it became clear that Wells Fargo had manufactured evidence purporting to make the bank the legitimate owner of the debt at issue. The testimony, Judge Drain noted, shows “a general willingness and practice on Wells Fargo’s part to create documentary evidence, after the fact, when enforcing its claims, WHICH IS EXTRAORDINARY.” (Original emphasis)

The White Plains lawyer who represented the debtors, Linda Terelli, commented:  “I very respectfully disagree that this is extraordinary...This is business as usual, not just at Wells Fargo.”

So the question arises why are these cases newsworthy?  The judges are to be applauded for their findings.  Some might call this courageous judging.  Their findings certainly were unusual and welcomed. But these judges were simply doing their jobs well.   Without regard to clearing dockets and other administrative considerations, these judges listened and weighed the evidence, made findings and took offense at the bank's disregard for the law and process.  

There have, however, been thousands of similar foreclosure cases across the nation.  Why now are we hearing of cases addressing bank fraud and assessing penalties against those institutions who engaged in fraud?  Why haven't judges made these findings before?  Is it poor lawyering? The inability of debtors to hire counsel?  Are the attorneys retained by debtors quickly overwhelmed by the aggressive tactics of the bank attorneys?    We may not have the answers to those questions although it seems implausible that so many years after the foreclosure crisis started debtors are only now presenting evidence of fraud and forgery.   The sad stories of those who lost their homes, of broken families and dreams, reinforce the need for Civil Gideon statutes.  Appointment of competent counsel in civil cases that so fundamentally alter people's lives must be viewed as a right and not as a privilege that the state cannot afford. 

 

 

 

 

Model United Nations and Human Rights Perspectives

Did you first learn about human rights issues at a Model United Nations?  

According to the U.S. United Nations Association, more than 400,000 students participate in Model United Nations programs each year.  Through Model UNs, students practice skills like drafting, advocacy, negotiation and public speaking.  Importantly, they are also exposed to human rights issues on a global and national scale as they research the policy positions of their assigned countries and evaluate possible alliances with other nations.  Prominent Americans who participated in Model UNs range from Supreme Court Justice Stephen Breyer to famous "first child" Chelsea Clinton to actor Samuel L. Jackson.

With support from Newman's Own Foundation, in 2010 the U.S. United Nations Association created a special human rights curriculum to be used in conjunction with a Model UN program in a middle-school or high school classroom setting.  Special topics in the curriculum include children's rights, free expression and universal primary education.

Interestingly, though Model UN is a huge driver of human rights education at high schools and universities across the U.S., its origins are obscure and it operates as a loose, decentralized and student-powered network.  Further, the legal academy has virtually ignored the role of Model UNs in shaping Americans' views of human rights and global politics.  Legal scholars only occasionally note the role that Model UN programs play in expanding American awareness of transnational perspectives.  A deeper analysis of the ways in which Model UNs have served as a decades-long forum for developing Americans' global perspectives -- perhaps reinforcing exceptionalism or alternatively, straining against it -- would be a fascinating contribution.  

Is the Senate Eliminating Civil and Human Rights?

Senator Charles Grassley (R-Iowa) new chair of the Senate Judiciary Committee, recently announced the chairs of the various Senate sub-committees.  During the announcement we learned that Senator John Cornyn (R-Texas) will chair the Committee on the Constitution.  The Committee was formerly known as the Committee on the Constitution, Civil and Human Rights. 

Through a spokeswoman, Cornyn explained: "We changed the name because the Constitution covers our most basic rights, including civil and human rights.  We will focus on these rights, along with other issues that fall under the broader umbrella of the Constitution.”

But the exclusive focus of the re-named committee was clarified in a Cornyn press release:  The committee on the Constitution will be a "watchdog against unconstitutional overreach and will hold the Obama Administration accountable for its actions." 

It appears that the Committee will no longer focus on concerns raised by actual citizens, rather the Committee will be a vehicle to continue partisan warfare. 

More information on the name change can be found here.

Grassley does not stand alone. Committee chairs apparently have the right to name their committees.  Senator Jeff Sessions (R-AL) has renamed the sub-committee he chairs from one on Immigration, Refugees and Border Security to the Sub-Committee on Immigration and the National Interest.

We can expect that along with Sub-Committee names, agenda will changed. 

 

 

Human Rights Lawyer to Serve as White House Advisor on Violence Against Women

In today's news, Caroline Bettinger-López, Professor at University of Miami School of Law and founder of the school's Human Rights Clinic, has been appointed as the Obama Administration's White House Advisor on Violence Against Women (VAW).  Professor Bettinger-Lopez replaces Lynn Rosenthal, a veteran activist who originated the position and served from 2009 to January 2015 as a close advisor to Vice President Biden on VAW issues. 

The announcement of Professor Bettinger-López's new White House position is the latest in a series of key nominations and appointments of individuals with knowledge of U.S. human rights issues.  As reported in this blog, Attorney General nominee Loretta Lynch served in the U.S. government's delegation to the CERD Committee's review in 2014.  Likewise, the acting head of the Civil Rights Division of the U.S. Department of Justice, Vanita Gupta, who previously worked for the NAACP LDEF and the ACLU, has framed her advocacy work in human rights terms.  

Professor Bettinger-López's human rights experience brings this Administration's in-house expertise to a new level, as she has long been a leader in the movement to "bring human rights home" to the U.S.  Earlier in her career, she was Deputy Director of the Columbia Law School Human Rights Institute.  While in that capacity, Bettinger-López served as counsel for Jessica Lenahan (formerly Gonzales), a survivor of devastating domestic violence. Represented by Professor Bettinger-López, the Miami clinic, the Columbia Human Rights Institute, the ACLU and the RFK Center, Lenahan initiated proceedings against the U.S. government before the Inter-American Commission after the U.S. Supreme Court ruled that her order of protection against her abusive husband was unenforceable (Castle Rock v. Gonzales).  Following the Inter-American Commission's favorable ruling, Bettinger-López (with Lenahan's active support) masterminded a nationwide effort -- often implemented by law school clinics -- to pass local resolutions declaring freedom from VAW as a human right. Within just a few years, dozens of localities have passed such resolutions, setting the stage for ongoing conversations concerning VAW redress, deterrence and enforcement issues as well as human rights norms.

In her new position, Professor Bettinger-López will work closely with Vice President Biden, who has a long-time commitment to these issues.  While in the U.S. Senate, Biden was primary co-sponsor of the groundbreaking Violence Against Women Act of 1994.  Indeed, the position of White House Advisor on Domestic Violence was created by Biden when he took office as a means to elevate attention to VAW.

Coming into the position during the last two years of the Obama Administration, Bettinger-López will have to hit the ground running to make her mark.   Those of us who have worked with her know that if anyone can do it, she can. 

 

Does Human Rights Have a History?

As legal academics debate the origins of human rights and the role of human rights in legal education, the University of Chicago's Pozen Family Center for Human Rights has taken the bull by the horns.   On April 10-11, 2015, the Center will sponsor a conference entitled "Does Human Rights Have a History?"  Speakers include leading historians such as Molly Nolan (NYU), Elizabeth Borgwardt (Wash. U.), Amy Dru Stanley (Chicago), and Samuel Moyn (Harvard), as well as philosopher Martha Nussbaum (Chicago).  While the conversation will be wide-ranging, moving from Rwanda to South Korea, one panel will specifically focus on the relationship of human rights and the civil rights movement in the United States.

Details about this timely and topical conference are available here.

The Human Rights of Love

 By Lauren E. Bartlett

 Today, on this day of love, valentines, sweets, flowers, and hearts (and do not forget the executions), let’s pause and examine the human rights of love.  Is there a human right to love?  What’s love got to do, got to do with it – the “it” being human rights?  

 On the face of it, love actually has very little to do with human rights.  In fact, there is only one specific reference to love in any of the core international human rights treaties.  The preamble to the Convention on the Rights of the Child (CRC) recognizes that “the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.”  This same phrase can also be found in the preamble to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.

Yet, just last week, Zeid Ra'ad Al Hussein, the U.N. High Commissioner for Human Rights, recently spoke about the need for love and kindness in a human rights response to major atrocities like the holocaust.  Navi Pillay, the former High Commissioner, spoke out about LGBTI rights in a loving relationship, and the late Robert F. Drinan, S.J., said that “human rights is another word, if you will, for love” (25 Ohio N.U.L. Rev. 321, 328). 

So, let’s dig a little deeper, beyond the face of human rights treaties, and see what we can find related to love.  First, there is a very clear human right to family and a right to protection from interference with family life.  The International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), CRC, International Convention on the Protection of the Rights of All Migrant Workers and their Families (ICRMW), American Convention on Human Rights (ACHR), and African Charter on Human and Peoples’ Rights all recognize the family as the natural and fundamental group unit of society.  In addition, all but the African Charter recognize the duty of the State to protect the family unit from unlawful interference in the context of the right to privacy.  The Convention on the Elimination of Racial Discrimination (CERD) and Convention on the Elimination of Discrimination Against Women (CEDAW) both provide protections for the family from discrimination. In addition, there are clear international standards that require families be detained together, and family visits to prisoners, when it is in the best interest of the children. 

The right to marriage, at least between men and women, is also clear. The Universal Declaration of Human Rights provides for the right to marriage: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” The ICCPR, IESCR, ICRMW, ACHR, CERD, CEDAW, Convention on the Rights of Persons with Disabilities (CRPD), and the European Convention on Human Rights also include the right to marry.  We may be getting closer to the crystallization of the right to marriage for all at the international level, including same-sex marriages, but we are not there yet.  On today of all days, that is heart breaking in too many ways to count. 

Moreover, human rights law helps to respect, protect, and fulfill other rights that set you up for love. There are all sorts of different types of love.  Yes, there is familial love and romantic love, but also love of pets, love of work, love of god, love of books and movies, love of food, love of peace, compassionate love, and more.  Some of these types of love are protected under human rights law, such as the right to religion and the right to education and information.  For example, the right to food, the right to adequate housing, the right to health, the right to education, and the right to assembly are all interdependent and interconnected with a right to love.  If you do not have food, shelter, or your health, it sure makes it difficult to go about getting some good lovin’.

In the end, it seems that love is a central part of human rights and human rights protect love.  So, why is love so absent in human rights Law?  Perhaps the right to love is too ethereal or emotional for the law.  Perhaps there is no right to be loved, but a right to love.  Perhaps love is earned and deserved, and should not be recognized as a matter of right.  Louis Henkin defined human rights as “claims asserted and recognized ‘as of right,’ not claims upon love, or grace, or charity: one does not have to earn or deserve them” (The Rights of Man Today, 1978). 

Today, let’s agree that we may have taken our right to love for granted, but remember that in the end love conquers all.

 

 

 

 

 

 

 

Honoring Courageous Judges

On February 9, the Supreme Court refused to further stay the implementation of gay marriage in Alabama.  On the evening of February 8, that State's Supreme Court's Chief Justice  Roy Moore had ordered a hold on the issuing of gay marriage licenses.

 You may remember Roy Moore who in 1990's initially defied a federal court order that he stop the recitation of Christian prayers in his courtroom and remove a Decalogue from the room. In 2000, voters rewarded Moore's defiance by  electing him chief justice of the Alabama Supreme Court . Emboldened, Moore commissioned a sculpture of the ten commandments that he ordered placed in the Alabama judicial building.  In 20o1, a federal court ordered the sculpture's removal.  When Moore refused, he was promptly removed from office by the judicial ethics panel.  Moore was then re-elected Chief Justice in 2012.  This time the focus has been implementing his personal views on same-sex marriage through the legal system.  

After receiving Moore's order not to issue  marriage licenses to same-sex couples, some lower court judges defied the order and began issuing licenses as couples lined up outside of courthouses.  Judges in Birmingham and Montgomery led the issuance of licenses, with some performed wedding ceremonies for same-sex couples.  With the U.S. Supreme Court's denial of an extension of the ban on issuance of marriage licenses, there is no further immediate recourse to those who look to stop the marriage of same-sex couples in Alabama.  

The courageous judges who defied Moore's order may face re-election difficulties in a state where most judges are elected.  My observation is that election of judges hinders courageous court decisions.  Indeed, judicial elections can foster corruption of the legal system in other ways as well, but that argument is for another day.  The reality is that human and civil rights issues beg for courageous lawyering and judging.   The Iowa Supreme Justices who voted in support of gay marriage in their state were not re-elected.  We will see if the courageous Alabama judges face the same fate.

The U.S.’s 2nd UPR Report: A Conversation Opener

 

Risa E. Kaufman, Columbia Law School Human Rights Institute 

 

How does the United States evaluate its own record on human rights?  The answer was revealed when the U.S. submitted its 2^nd report for the Universal Periodic Review (UPR) to the U.N. Human Rights Council last week.  In the report, the U.S. offers a self-assessment of the progress made and challenges that remain on a host human rights issues addressed during the United States’ first UPR, back in 2010. The report sets the stage for the in-person review, scheduled for May 11 in Geneva, and offers an important jumping off point for the work of U.S. human rights advocates.

The UPR, a "peer review" conducted through the U.N. Human Rights Council, requires that the human rights record of each country belonging to the U.N. be reviewed once every four years. As a "peer review," representatives from every member of the U.N. have an opportunity to ask questions of and make recommendations to the country under review.  The review, which is grounded in the U.N. Charter, the UDHR, human rights instruments to which the country is a party, and any voluntary pledges and commitments made by countries, is based on the national report submitted by the country under review, as well as on a compilation of findings and reports from U.N. human rights treaty bodies, special procedures and other relevant U.N. mechanisms, and a summary of reports submitted by civil society, including community groups and advocacy organizations. The UPR is intended to “promote the universality, interdependence, indivisibility and interrelatedness of all human rights.”

The U.S. underwent its first UPR in 2010.  The first U.S. UPR resulted in 228 recommendations for ways in which the United States can improve upon its human rights record.  The U.S.’s 2^nd UPR report responds to the 173 recommendations that the U.S. supported in whole or in part from that first review. In 25 pages, the report touches on issues including state and local implementation of human rights; excessive use of force by law enforcement; racial bias in the criminal justice system; racial discrimination in areas including voting, housing, education and health; discrimination against lesbian, gay, bisexual and transgender individuals and against persons with disabilities; capital punishment; the rights of indigenous peoples; immigration detention and the rights of migrants; gender equality in the workplace; national security and counterterrorism efforts; access to food, healthcare, education, housing, water and sanitation; and climate change.

Perhaps somewhat predictably, the report provides an overall upbeat assessment of human rights improvements in the United States, including legislative and policy initiatives and accomplishments under the Obama Administration. 

Last fall, I posed the question of whether it is worth the effort for U.S. human rights advocates to engage in advocacy around the U.S.’s 2^nd Universal Periodic Review.  (Spoiler alert: the answer is “yes.”).  One of the reasons I offered for the utility of engaging in the UPR is that, unlike the reviews conducted by the human rights treaty bodies, the UPR requires the United States to respond to each of the recommendations resulting from the review, thus committing itself to addressing a number of human rights issues. By offering a self-evaluation of how it is meeting these commitments, the U.S., in its 2^nd UPR report, provides an important touchstone for advocates to engage in deeper dialogue with federal, state and local government, with grassroots communities, and with the general public about long-standing and new domestic human rights concerns. 

Between now and May 11, there are several opportunities for U.S. advocates to give due credit to the United States for progress made on human rights issues, offer a more accurate assessment of where progress is lacking, and raise significant concerns that the U.S. report may gloss over or ignore altogether. The U.S. government has invited U.S. civil society to participate in a consultation regarding the report at the U.S. State Department on the morning of Friday, February 20^th. Those interested must RSVP by this Friday (February 13^th), preferably with a written statement.

And the U.S. Human Rights Network and allied organizations are hosting a series of U.S. civil society consultations and “diplomacy dialogues” in the lead up to the review.  The first is scheduled for the afternoon of February 20^th at Howard University in Washington, DC.  Diplomatic representatives have been invited to the session to learn about U.S. human rights concerns directly from advocates, thus providing an opportunity for advocates to encourage UN missions to ask targeted questions of and offer constructive recommendations to the U.S. in May.  Similar events are planned for March 26^th at the University of the District of Columbia’s School of Law; March 27^th in New York City (place TBD); April 15^th at American University’s Washington College of Law; and April 17^th at the Roosevelt House in New York.  Information on each of these events will be made available on the U.S. Human Rights Network’s website.

Given the resources necessary to travel to Geneva, most U.S. advocates will not be able to attend the in-person UPR this spring.  But there is a great deal that they can do from home to contribute to the review and to amplify domestic human rights concerns raised in (or omitted from) the U.S. report.  Advocates can join a UPR working group hosted by the USHRN network and participate in the civil society consultations and diplomacy dialogues to offer UN representatives in New York and Washington, D.C. a U.S. advocacy perspective on the U.S.’s 2^nd UPR report.  They can encourage state and local officials to hold human rights consultations or hearings on relevant local issues that are addressed in the U.S. report.  And they can leverage the UPR more generally to raise greater public awareness about domestic human rights concerns through social and mainstream media; op eds, blog posts, and twitter campaigns can respond to the U.S. UPR report, or be timed to coincide with the May 11^th review.  The U.S.’s 2^nd UPR report isn’t the last word on human rights in the U.S.  It’s a starting point for conversation.

U.S. Workplace Policies and Women's Equality

Building upon Cindy Soohoo's post from yesterday, The George Washington University School of Law Associate Professorial Lecturer in Law Robin Runge reflects upon U.S. policy toward women and workplace equity. 

Prof. Runge writes:

The concept of using employment laws to promote specific societal behaviors and values is one that has been considerably explored in U.S. legal scholarship.  For example, Title VII of the Civil Rights Act in 1964, prohibiting discrimination in employment based on race, ethnicity, color, religion, and sex is frequently described as a law intended to more broadly increase economic opportunity and promote equality for populations that had historically experienced extensive societal discrimination. The passage of the Family and Medical Leave Act in 1993 has been described as a reflection of U.S. society valuing a specific set of family and caregiving responsibilities over others by mandating employers provide unpaid, job guaranteed leave to employees for limited medical or caregiving reasons.  I, among others, have criticized the FMLA for promoting behaviors that reflect the needs and experience of middle and upper class “ideal families,” to the exclusion of low income women who cannot afford to take unpaid leave and often don’t qualify for the job guarantee leave provided by the FMLA because they need to take leave for family-related reasons that don’t meet the requirements. See Robin R. Runge, Redefining Leave From Work, 19 Geo. J. on Poverty L. & Pol’y 445 (2012).  Finally, recent amendments to the Fair Labor Standards Act are intended to promote breastfeeding among low income working women and help them maintain employment by requiring employers to provide break time and a private location to express milk at work.  However, as Young v. UPS, currently pending before the U.S. Supreme Court demonstrates, pregnant women are still fighting for basic rights in the workplace.

Unlike Prof. Soohoo’s description of countries in East Asia, the U.S. is not facing a significant drop in birth rates or considerable concerns about a shrinking labor pool. I do not think, however, this is because our workplaces are models of equality for women. Quite the opposite.  Women make up almost half the workforce, and a high percentage of mothers are working. Moreover, 40% of American mothers are the primary breadwinners for their families. So, women seem to be able to make it work in spite of a lack of pay equity, paid family leave, workplace flexibility, and rampant violence against women in some workplaces, even though the Pregnancy Discrimination Act was passed in 1978.

The employment and labor laws of the U.S. have created workplace structures and cultures that make women vulnerable to exploitation and discourage mothers from working. Just this week a headline in an article asked “When we will stop punishing women for having babies at the peak of their careers? Others have attributed a recent decrease in women in the workforce to U.S. employment policies that make it nearly impossible to have a child and maintain employment.

The Administration and several members of Congress have recently and consistently argued that passage of legislation mandating paid family leave and raising the minimum wage (women are the majority of minimum wage-earners) would promote women’s equality and economic opportunity with the Women’s Economic Agenda: When Women Succeed, America Succeeds: An Economic Agenda for Women and Families. However, this effort does not seem to be effective in getting the legislation passed.

Maybe if the U.S. did face a crisis in our birth rate, or a need to increase women’s participation in the workforce, that would result in legislation that makes our workplaces more equitable for women.  Or maybe, whether there is a connection between increasing economic equality for women and government policy  depends on where a woman lives, China or the U.S.

 

 

 

 

The US and China’s One-Child Policy Loosens; Women’s Equality Will be Key to its Success

 

Co-Editor Cindy Soohoo writes on a shift in China's one child policy.  Tomorrow's post will discuss the differences between US - China policy in both motivation and social policy in addressing women's equality.

Prof. Soohoo writes:

After years of pursuing a one-child policy, China is taking steps to try to increase its birth rate, but is finding that it’s not so easy.   The current policy changes respond to demographic shifts caused by a low birth rate and aging population.  The prospect of a smaller labor pool saddled with supporting an aging population has fueled fears that China will “get old before it gets rich.”  Promoting women’s equality may be the key to addressing China’s labor and population problem.

China’s one child policy has been criticized for employing coercive tactics that violate women’s reproductive autonomy and for triggering a gender imbalance in the population due to a historic societal preference for sons.  Human rights bodies have denounced abusive tactics employed pursuant to the policy including forced abortion and sterilization. They have also emphasized the need to address the structural causes of son preference by eliminating gender stereotypes and promoting women’s equality.  The same emphasis on improving the status of women, including eliminating barriers faced by working mothers, will go a long way to support China’s current efforts to encourage births and economic growth.

Since China’s current 1.5 birth rate is substantially below the 2.1 rate needed to maintain a stable population, last year it decided to allow parents a second child if one of the parents was an only child (the prior policy allowed only two children if both parents were only children).   But the number of couples that applied to have second children is much lower than expected. This is especially true in urban areas like Shanghai.  At the end of 2014, only 5% of couples in Shanghai eligible to have a second baby applied to do so.

Chinese reticence to take advantage of the new policy is consistent with regional trends.  East Asia has the lowest fertility rate in the world, and some demographers say that China’s birth rates would have declined even without the one child policy.  There are dire forecasts about the future of Japan, where the birth rate is currently 1.4, and social security costs are projected to be 24.4% of the country’s GDP by 2026.  Last summer, South Korea’s birth rate dropped to 1.19 leading a government research service to declare that at current rates, its population will be extinct by 2750. 

Reports suggest for the growing middle class in these countries the cost of child-rearing, including housing, child-care and education have become prohibitively expensive.  An official in Shanghai cited the high cost of raising children and the negative impact of having a child on a woman’s career development as driving the lack of interest in having a second child.

Promoting women’s equality and economic opportunity can make it easier for families to bear the costs of larger families and expand the work force.  But often parents face substantial hurdles in the workplace, forcing women to choose between work and motherhood.  In Japan 70% of women stop working after having a child due in part to inflexible work hours and lack of male participation in household chores and children rearing.  And if they return to work they end up in low wage, part-time or contract positions.  The loss of female talent has led economists to suggest that closing the gender gap could substantially improve Japan’s GDP.

Japan and South Korea have funded match-making and dating services to address their low birth rates.  Adopting family friendly policies that encourage and support working parents could have a greater long term impact.   Japan’s prime minister is reportedly considering a number of policies to encourage women to stay in the workforce after having children, including increasing the availability of affordable child care, changing tax rules favoring single income couples, encouraging more flexible hours in the workplace, and encouraging companies to employ more women in senior positions.   

The current demographic pressures may cause China to further relax regulation of family sizes. But, if China is serious about increasing its birth rate and increasing the labor pool it must ensure that women have equal economic opportunities and working families have the support they need.

 

 

Comics, Human Rights and Representation

This week, the London School of Economics Human Rights Blog and the Talking Comics website are co-hosting "Comics, Human Rights and Representation."  The conversation is wide-ranging, and comic book human rights may not be as far from real human rights as you think.  Check out the links here!

Vaccinations and Human Rights, American Style

With the outbreak of measles in the U.S., traceable to unvaccinated Disneyland visitors, the "anti-vaccine" movement has gained new attention.  A survey of anti-vaccine websites and blogs indicates that one of the arguments frequently made by defenders of the movement is that refusing vaccines is a human rights issue.

But while many can appreciate that mandating vaccinations against a patient's will can raise medical ethics concerns regarding patient decisionmaking and autonomy, the human rights issues seem to cut in the other direction.  

It is worth remembering that the movement to refuse vaccines is a phenomenon largely limited to those places where people are fairly certain that the medical infrastructure in place ensures that they will not actually get the serious diseases (e.g., mumps, measles, rubella) that the vaccinations address.  In contrast, in most parts of the world, where measles alone threatens more than twenty million people each year, it is access to health- and life-saving vaccinations that is the human rights issue.   For example, a General Comment recently issued by the UN Committee on the Rights of the Child emphasized the affirmative government obligation to ensure that the benefits of immunizations reach "all children who need them."  Similarly, the UN Social Forum to be held in Geneva later this month will focus on "access to medicines in the context of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health."

Researchers at the World Health Organization, balancing the individual right to refuse vaccines with the collective right to health, have concluded that:    

  "Parent's refusal to get vaccinated or to vaccinate their children can cause collective harm by       incrementing the pool of unprotected, susceptible individuals in a community.  With herd       immunity compromised, devastating disease outbreaks can occur.  In these settings, individuals       are morally obligated to accept vaccination to prevent harm to others."

Some experts, sensitive to individual autonomy issues, have suggested that governments should comply with their health-related obligations through education and encouragement -- i.e., "nudges" -- rather than attaching punishment to vaccination refusal.  If "nudges" are as, or more, effective than other approaches, then this would certainly be an appropriate route.  

Whatever mechanism a government adopts for promoting vaccination, however, it is clear that the weight of the human right arguments fall on the side of promoting the right to health.  The right to refuse vaccine may be compelling when considered in isolation, but people who refuse vaccines do not do so in isolation, and the collective human right to health prevails.  

Human Rights, Human Trafficking and Global Supply Chains

Jonathan Todres' post on 2/3/15 observed that Congress' willingness to enact  anti-human trafficking legislation is, to all effects, a human rights victory, though Congress has not embraced human rights language to describe these efforts.

Still, language does matter, and it is worth noting that while members of Congress have not framed the trafficking issue in human rights terms, the Administration has.   Speaking in 2012, President Obama stated that "[o]ur fight against human trafficking is one of the great human rights causes of our time."  And in a speech  and summit meeting last week marking National Human Slavery and Trafficking Prevention Month, Secretary of State John Kerry drew explicit connections between human rights, human trafficking and the global supply chains that enable labor exploitation.  

In his January 29 speech, Secretary Kerry announced that in 2015, the Administration would focus its anti-trafficking efforts on supply chains.  And the State Department honored the Coalition of Immokalee Workers and its Fair Food Campaign with a Presidential Award. Secretary Kerry particularly cited the Coalition's "extraordinary efforts to combat human trafficking by pioneering the Fair Food Program, empowering agricultural workers, and leveraging market forces and consumer awareness to promote supply chain transparency and eradicate modern slavery on participating farms."  On the same day, the Administration finalized new anti-trafficking rules that increase the accountability of government contractors for human trafficking and monitoring. According to one legal analysis, these rules -- praised by advocates -- pose significant new burdens on federal contractors.

Human trafficking and global supply chains has been on the UN human rights agenda for a number of years.  While Congress may not be quite ready to address these issues squarely as human rights issues, the Administration should be given credit for making explicit the connections between human rights, the global supply chain and human trafficking. 

Why Preventing Human Trafficking Sounds a Lot like Human Rights Advocacy

Jonathan Todres

Human trafficking is a hot topic on Capitol Hill.  In January, the House passed 12 human trafficking bills.  While it’s impossible to provide in-depth analysis of every bill in this brief essay, this wave of legislation merits significant attention because it signals a shift in approach to this grave violation of human rights.

The current U.S. response to human trafficking started with the adoption of the Trafficking Victims Protection Act in 2000.  Since then, the TVPA has since been reauthorized four times, other federal legislation has been passed, and all 50 states have adopted anti-trafficking legislation.  For much of this time, criminal law centered measures have predominated.  This is understandable in many respects, as human trafficking is a serious crime, and criminal law responses have the added benefit of building on an existing criminal justice system. In more recent years, legislation has also focused on services for trafficking survivors. 

 This year’s wave of legislation reflects a growing understanding both that a comprehensive multi-sector response is necessary and that we need to prevent these harms from occurring and not only pursue perpetrators and assist victims after the harm has occurred. Several bills reflect this shift.

 H.R. 350 – the Human Trafficking Prevention, Intervention, and Recovery Act of 2015 – would mandate evidence-based research on prevention strategies with a view to identifying best practices.  Other bills seek to move response efforts in the direction of earlier intervention by focusing attention on the role of the child welfare system and health care professionals (a full list of the bills is below).

Many of these bills touch upon issues that are at the core of human rights advocacy, including health care, housing, education, and social services. Given the current political climate, it’s not surprising that they have not been presented as human rights responses to human trafficking.  Yet it’s worth noting that the broader approach evidenced in the 12 bills passed by a Republican-led House of Representatives echo what human rights advocates have said for many years:  rights—including the right to live free from exploitation—are interdependent; and reducing vulnerability to harms such as human trafficking requires a comprehensive approach that recognizes both the rights of all and all rights of every individual.

This is not to say, of course, that human rights advocates would embrace every provision of all 12 bills. I have my own concerns about certain proposed steps and about what is left out of some bills. But that debate is for another column. As a starting point, this series of bills should prompt advocates on all points of the political spectrum to realize that preventing exploitation of vulnerable individuals requires a comprehensive approach that addresses the root causes of these harms, something human rights has long called for.

            

1. H.R. 181 –      Justice for Victims of Trafficking Act of 2015, as amended (Sponsored      by Rep. Ted Poe (R-TX) & Carolyn Maloney (D-NY))
2. H.R. 159 –      Stop Exploitation Through Trafficking Act of 2015, as      amended (Sponsored by Rep. Erik Paulsen (R-MN) & Gwen Moore      (D-WI))
3. H.R. 469 –      Strengthening Child Welfare Response to Trafficking Act of      2015 (Sponsored by Rep. Karen Bass (D-CA))
4. H.R. 350 –      Human Trafficking Prevention, Intervention, and Recovery Act of      2015 (Sponsored by Rep. Kristi Noem (R-SD) & Doris Matsui (D-CA))
5. H.R. 468 –      Enhancing Services for Runaway and Homeless Victims for Youth Trafficking      Act of 2015 (Sponsored by Rep. Joe Heck (R-NV))
6. H.R. 246 –      To improve the response to victims of child sex trafficking (Sponsored      by Rep. Joyce Beatty (D-OH))
7. H.R. 398 –      Trafficking Awareness Training for Health Care Act of 2015 (Sponsored      by Rep. Renee Ellmers (R-NC) & Debbie Wasserman Schultz (D-FL))
8. H.R. 460 –      Human Trafficking Detection Act of 2015 (Sponsored by Rep. Mark      Walker (R-NC))
9. H.R. 285 –      Stop Advertising Victims of Exploitation Act of 2015 (Sponsored by      Rep. Ann Wagner (R-MO))
10. H.R. 514 –      Human Trafficking Prioritization Act (Sponsored by Rep. Chris Smith (R-NJ))
11. H.R. 515 –      International Megan’s Law to Prevent Demand for Child Sex      Trafficking (Sponsored by Rep. Chris Smith (R-NJ))
12. H.R. 357 –      Human Trafficking Prevention Act (Sponsored by Rep. Sean Patrick      Maloney (D-NY))

 

There Is Nothing Casual About Prejudice: “Serial” And the Stories We Tell

by Guest author Anita Sinha, practitioner in residence with the Immigrant Justice Clinic at American University's Washington College of Law.

 Like millions of others others, I was an avid listener of the podcast “Serial.”  Its “one story told week by week” was the true story of Adnan Syed, who is serving life in prison for the 1999 murder of his ex-girlfriend Hae Min Lee.

 Adnan is Pakistani American, and Hae Min was Korean American.  Their identities prompted some to say the podcast was an “immigrant story,” and criticize host Sarah Koenig for not getting many aspects of this narrative.  I agreed, but did not think it compromised host Koenig’s role as a storyteller – until I neared the end of the podcast.

In Episode 10, Adnan’s mother tells Koenig that she believes her son was convicted because he is Muslim.  Surprisingly, Koenig immediately responded that she did not believe her.  Koenig seemed to retract by stating that prejudice may have “crept in…advertently or inadvertently.”  She then gave examples of prejudice present throughout Adnan’s case, and exclaimed one can “stir stereotypes into facts, all of which gets baked into a story.”

 But then Koenig downplayed the injustice that can come from such sordid story making, stating: “Reporting this story I found plenty of examples of casual prejudice against Muslims.”  As an example, she presented former jurors’ claims that while they had stereotypes about Adnan’s religion, it “didn’t affect their view of the case.”  However, Koenig stated that when she pressed, it seemed “stereotypes of Adnan’s culture were there, lurking in the background.”  She played two jurors’ interviews explaining that assumptions of Muslim men’s misogyny influenced their peers. 

That Koenig identified how stereotypes were present but then dismissed this as “casual” is troubling.  Casual prejudice is not an actual phenomenon.  It is not a defined phrase or term of art.  There is, however, a proven concept called “implicit bias,” and it is part of our national discourse after the deaths of Michael Brown, Eric Garner, Tamir Rice, and other civilians of color killed by police officers.  Referring to “the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner,” we are learning how implicit bias plays a role in police brutality.  There is the language in Darren Wilson’s grand jury testimony describing Michael Brown as a “demon.”  There is a report revealing that police perceive Black men to be less innocent than their White counterparts, and also older than they actually are (the officer who killed twelve-year-old Rice thought Rice was twenty).  A Washington Post article flatly declared, “across America, Whites are biased and they don’t even know it.”

Koenig invokes “casual prejudice” to cast the bias of jurors and others as not dispositive.  It is not clear how Koenig is so certain, but her characterization of the bias as “casual” calls into question her credibility.  In my opinion, she never restores her credibility.  Prejudice is conscious, or it can be implicit.  It is pervasive.  Prejudice in the U.S. incarcerates and kills people of color at disproportionate rates.  What prejudice is not is casual.

 A previous version of this blog was published in the Huffington Post.