Human Rights at Home Blog

Human Rights Could Influence Whole Woman's Health

by Cynthia Soohoo

On Wednesday when the Supreme Court hears oral argument in Whole Woman’s Health v. Hellerstedt, its first major abortion case in several years, Justice Scalia, the Court’s biggest opponent to abortion and international and foreign law will be missing. The Court is set to consider whether a Texas law that would shut down 75% of the state’s abortion clinics and leave vast swaths of the state without a legal abortion provider imposes an undue burden on women’s access to abortion. International human rights law could provide a useful perspective to aid the Court in its deliberations if the newly constituted Court is open to considering it.

As recognized in a recent post on this blog, around the world reproductive rights are recognized as an integral part of, and necessary pre-condition for, gender equality. The Supreme Court invoked equality values to support its Due Process analysis in Planned Parenthood v. Casey but has stopped short of adopting the Equal Protection clause as an independent basis for affirming women’s right to abortion. International law could help further develop and expand the Court’s equality analysis.

But, even if the Court continues to rely on the Due Process clause as the main source of women’s right to abortion, as set forth in an amicus brief submitted by the National Latina Institute for Reproductive Health (NLIRH) that CUNY Law School’s International Women’s Human Rights Clinic co-authored with NLIRH attorneys and Freshfields Bruckhaus Deringer, there are several ways that international law can provide helpful insights to inform the Court’s analysis.

Rights can’t just be theoretical. At the heart of Whole Woman’s Health is Texas’s argument that it may pass laws that shut down medical facilities that legally provide abortion without unduly burdening women’s access to abortion. The European Court of Human Rights and other human rights bodies have emphasized that where a country recognizes that a woman has a right to an abortion, it must ensure that the right can be meaningfully exercised. For instance in R.R. v. Poland, the European Court stated that when a state allows abortion in some situations “it must not structure its legal framework in a way which would limit real possibilities to obtain [an abortion].”

The Court must consider those most adversely affected. Human rights law emphasizes that the experience of the most marginalized populations should be at the center of determining whether laws violate human rights. The forced clinic closures will impose long waits for appointments, lengthy and expensive travel, including overnight stays, and increased costs for many Texas women seeking abortions. These barriers will have the greatest impact on women without the means or ability to travel. NLIRH’s brief describes the experience of Latina women working low wage jobs and in school - many of whom are mothers - who do not have access to cars, days off, child care or financial resources. Immigrant women and women in domestic violence situations will be particularly impacted because of the challenges they already face in traveling outside their communities. In determining whether the Texas law imposes an undue burden, the Court should consider the law’s impact on these women.

Impact of lack of clinical abortion services on women’s health: Another important factor for the Court to consider is the impact that the Texas law will have on women’s health. Around the world, it is well documented that when women do not have access to legal abortion services, the rate of unsupervised and unsafe abortion rises. As a result, international human rights bodies have warned that restrictive abortion laws lead to “unsafe, illegal abortions, with attendant risks to life and health.” Consistent with international experience, recent studies have found that self-induction in Texas is likely to increase if the law goes into effect and that Latinas living near the Mexico border and poor women facing barriers to reproductive health care are most likely to be affected.

Board of Immigration Appeals, Asylum and Domestic Violence Survivors

by Sital Kalantry and Carolyn Wald, J.D. Cornell Law School Class of 2016

Although Matter of A-R-C-G-, the landmark Board of Immigration Appeals (Board) decision, gave women fleeing domestic violence a pathway to asylum, survivors continue to be routinely denied asylum by immigration judges who interpret the decision narrowly.

To address this problem, the Harvard Law School’s Immigration Refugee Clinical Program, the Center for Gender and Refugee Studies at the University of California Hastings College of Law (CGRS), and a number of prominent NGOs and immigration law experts have encouraged the Board to designate as precedent certain unpublished decisions related to domestic violence-based asylum claims. See Blaine Bookey, Gender-Based Asylum Post-Matter of A-R-C-G-: Evolving Standards and Fair Application of the Law, 22(1) SW. J. Int'l L. (forthcoming). The Board publishes only a limited number of decisions per year. For example, last year it published only thirty-five. The Board has sought comments for this request from the lawyers of record of those unpublished cases (including one of the authors of this post), suggesting it is taking this request seriously.

We have seen first-hand the consequences of narrow interpretation of Matter of A-R-C-G- at the IJ level. Catholic Legal Immigration Network, Inc. (CLINIC) referred “Jimena” to us at Cornell Law School’s Asylum and Convention Against Torture Appellate Clinic. Jimena, is a Salvadoran woman who was repeatedly raped, beaten, and stalked by her long-term partner. The severe abuse continued even after their relationship ended and Jimena fled with her children. On several occasions, Jimena’s former partner hunted her down and even managed to find her when she went to Guatemala. Even years after Jimena left, her former partner would appear on her doorstep, attack her, and tell her that she was his property. Jimena obtained a restraining order and called the police numerous times, but her abuser was never arrested. Worse still, the police often refused to intervene, telling her this was a private matter, best resolved between the couple.

Although Jimena’s story was nearly identical to that of A-R-C-G-, the immigration judge declined to grant asylum because Jimena, unlike the respondent in A-R-C-G-, was not married to her abuser. On appeal, the Board held that Jimena still qualified for asylum on the basis of domestic violence, despite being unmarried. The Board decision further clarified that the police’s failure to intervene satisfied the state nexus requirement.

But this decision came after Jimena had already been detained for more than a year. During that time, she was sentenced to solitary confinement for 30 days for a minor infraction (without proper process), which resulted in her near-mental collapse. Because of her distress, she was unable to eat while in solitary confinement. When the guards found her uneaten meals, they threatened to confiscate her clothes and her bed. The idea of having her clothes removed caused her so much anguish that she asked us to withdraw her appeal before the Board. Fortunately, the detention center placed her back with the general population after only a few days, perhaps because they realized the punishment had been overly severe and instituted without proper process. There, in a less-distressed state of mind, Jimena reaffirmed her desire to seek asylum. The Board granted a reinstatement of her case and ultimately granted her asylum. Nevertheless, a woman with a meritorious asylum claim, who faced extreme danger if returned to El Salvador, almost gave up this claim merely because her detention was so prolonged and traumatizing.

We strongly encourage the Board to publish precedent decisions that clarify and extend Matter of A-R-C-G-. Doing so would ensure that women like our client, who have meritorious claims, do not languish in prison-like detention centers because of immigration judges who are reluctant to apply the underlying principles of Matter of A-R-C-G and who instead interpret it as only giving a pathway to asylum for married women from Guatemala. It will also promote judicial efficiency.

While designating more decisions as precedential is essential, to truly secure the pathway for domestic violence-based asylum claims, one of the authors has argued elsewhere that more drastic measures are needed. A solution this author proposes is finalizing the Department of Justice regulations that have been pending since 2001. Carolyn Wald, Does Matter of A-R-C-G- Matter that Much?: Why Domestic Violence Victims Seeking Asylum Need Better Protection, 25 Cornell J.L. & Pub. Pol'y (forthcoming).

The consequences of continuing to allow immigration judges to decide domestic violence-based asylum cases without further guidance is already apparent. It is imperative that something be done to prevent more women with meritorious cases from having to endure lengthy detention while the BIA considers their appeal.

 

From the Human Rights Bookshelf: Gender-Based Asylum and US Immigration Policies

Meghana Nayak, a political scientist at Pace University, has written a new book published by Oxford University Press, titled:  Who is Worthy of Protection: Gender-Based Asylum and U.S. Immigration Policies.  Here's the publisher's description:

A surprisingly understudied topic in international relations is that of gender-based asylum, even though the tactic has been adopted in an increasing number of countries in the global north and west. Those adjudicating gender-based asylum cases must investicate the specific category of gender violence committed against the asylum-seeker, as well as the role of the asylum-seeker's home state in being complicit with such violence. As Nayak argues, it matters not just that but how we respond to gender violence and persecution. Feminist advocates, U.S. governmental officials, and asylum adjudicators have articulated different "frames" for different types of gender violence, promoting ideas about how to categorize violence, its causes, and who counts as its victims. These frames, in turn, may be used successfully to grant asylum to persecuted migrants; however, the frames are also very narrow and limited. This is because the U.S. must negotiate the tension between immigration restriction and human rights obligations to protect refugees from persecution. The effects of the asylum frames are two-fold. First, they leave out or distort the stories and experiences of asylum-seekers who do not "fit" the frames. Second, the frames reflect but also serve as an entry point to deepen, strengthen, and shape the U.S. position of power relative to other countries, international organizations, and immigrant communities. This book explores the politics of gender-based asylum through a comparative examination of asylum policy and cases regarding domestic violence, female circumcision, rape, trafficking, coercive sterilization/abortion, and persecution based on sexual and gender identity.

M. Bob Kao reviewed the book on-line for the London School of Economics Review of Books, calling it an "important contribution."

The Drumbeat to End Solitary Confinement Intensifies -- New Resources and Continuing Challenges

Recent weeks have seen a number of diverse contributions to the growing campaign to end the liberal use of solitary confinement in the US, and to bring practices within international human rights guidelines.  This blog entry collects these developments, which many will want to use in their teaching and writing in the coming months.

The lead story is undoubtedly President Obama's January 2016 ban on the use of solitary confinement for juveniles in federal prisons and other restrictions on the amount of time that prisoners can be held in solitary for low level infractions.  Amnesty International heralded the move as a human rights victory that followed years of struggle.

While the federal reforms provide a guide to state and local prison officials, truly national reform has yet to be achieved.  Yet the momentum supporting such changes has never been stronger.  Among other developments, the Yale Law Journal-Forum recently published a set of responses to the Yale Liman Center's September 2015 critical report on solitary confinement, Time-in-Cell.  Contributors include Judge Alex Kozinski and Marie Gottschalk, among others, presenting both the critiques and shortcomings of solitary confinement as well as alternatives.  Perhaps the contribution that has sparked the most attention is the first-person essay by Reginald Dwayne Betts, a current Yale Law student who writes about his experience of solitary confinement during a period of inceration as a teenager.

Another first-person account, written by former prison journalist Wilbert Rideau, appears in the February 22 issue of Mother Jones Magazine.  And the Guardian posted this account of an exclusive interview with Albert Woodfox, recently released after 43 years in solitary confinement in Louisiana prisons.  Woodfox told reporters, “It’s an evil. Solitary confinement is the most torturous experience a human being can be put through in prison. It’s punishment without ending. We have got to stop this, and having been a victim of it for so long myself, that’s what I’m going to do.”

Lawyers and criminal justice advocates are not the only contributors to this movement.  For example, Architects, Designers and Planners for Social Responsibility added their comments to the modest Changes proposed by the American Correctional Association, while also situating their position within the larger human rights context.  Social Workers Against Solitary Confinement are also active, producing a recent report by prison social workers calling for an end to the practice.

While the drumbeat to end solitary confinement intensifies, the road ahead is difficult.  As Woodfox's decades-long ordeal indicates, solitary confinement is an entrenched practice in many jurisdictions.  The recent visit of the UN Working Group of Experts on People of African Descent put this into perspective.  On the one hand, they welcomed President Obama's announcement regarding federal reforms, made during the Working Group's US visit.  On the other hand, they expressed regret that they were not allowed access to the Mississippi State Penitentiary and that several state officials did not make themselves available to meet with the Working Group.  They further noted the hurdle posed by the United States' federal structure, observing that "Disparities in the enforcement of policies, can be found in the different approaches adopted by states to address issues such as . . . the use of solitary confinement and the trial of juvenile offenders, among others."  The Working Group then added its voice to the domestic calls for further reform, stating that:  "Solitary confinement should be banned absolutely for being in violation of international human rights law standards particularly those found in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the United Nations Standard Minimum Rules on the Treatment of Prisoners."

Still, the practical challenge of how to gain traction for such human rights pronouncements in the US remains significant.  An important contribution in this regard appears in  the new book,  titled The Transformation of Human Rights Fact-Finding, by Philip Alston and Sarah Knuckey.  In a chapter titled Human Rights Fact-Finding in the Shadows of America's Solitary Confinement Prisons, New York Civil Liberties lawyer Taylor Pendergrass  offers an analysis of the human rights fact-finding approach adopted by the NYCLU as it prepared its landmark 2012 report on NY State's solitary confinement practices, Boxed In: The True Cost of Extreme Isolation in New York's Prisons.  Pendergrass concludes that "the NYCLU’s utilization of a human rights framework was of key importance for placing New York’s solitary confinement practices in an international context, and contrasting well-established human rights protections with still-developing domestic law.  That human rights framework was reinforced by adherence to the principles of human rights fact-finding, many of which do not commonly inform investigations in the United States."

Status Information on Civil Right to Counsel

John Pollock of the National Coalition for a Civil Right to Counsel announced that the organization has listings of all of the 2016 right to counsel bills filed in the state legislatures across the country.  Along with a summary of the bills, sponsors, current status and a link to the bill on Legiscan are part of the tracking done by the Coalition.  The listings are updated frequently.

 

The Civil Right to Counsel (Civil Gideon) has been at the forefront of US Human Rights legal work.  Advocates recognize that once individuals engage the US Justice system, litigants can fairly pursue justice only with competent legal advice and representation.   As the Coalition's website aptly states "You have the right to counsel - unless you are about to lose your home, your children or your healthcare".   Nowhere does the gap between the wealthy and those with limited resources become more apparent than in the legal system.  Even the vanishing middle class has limited options in retaining counsel when hourly bills can quickly reach $20,000.00 in a custody suit, and often much more than that.  Poverty easily can be the result of litigation where a homeowner may barely be meeting payments but becomes devastated by a lawsuit, health problem or other unexpected circumstances. If we want the legal system to not just be available to all, but be beneficial to those who engage the system, the process must address equity as soon as an individual enters the system. Justice can be achieved only if both parties are appointed counsel in those cases where the outcome could have serious, if not devastating, consequences to one or both of the parties.

 

 

Scalia and Ginsberg: Friendship in a Polarized World

In an era of reality tv, where anger and polarization are rewarded, Prof. Irene Scharf shares her thoughts on the friendship between Justices Scalia and Ginsberg:

It’s interesting that, regardless of his conservative bona fides, Justice Scalia’s “best friend” on the court was Justice Ginsburg, one of the more liberal Justices.  The two, and their spouses, apparently socialized regularly.   As a law professor who works with students on a daily basis, I hope this aspect of Justice Scalia can provide a lesson to students and us all. This friendship of opposites demonstrates that a person’s humanity is measured by far more than the sum of one’s political views.

 

Editors' Note:  This post originally appeared on Best Practices Blog.

 

The US Influence on the Human Rights Council

The Jacob Blaustein Institute for the Advancement of Human Rights (JBI Human Rights) has published a study of changes to the UN Human Rights Council's operations during the US membership from the Council, 2009-2015.  This year, per the Council's rules, the US is off the body, but it need stay off only one year and it has indicated that it will see re-election next year.  Meanwhile, JRI Human Rights concludes that the US influence has been largely positive, resulting in more country specific resolutions and more special procedures.  It urges the HRC to maintain those gains during the coming year. 

Advancing the Rights of Women and Families in the U.S. Workplace

By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Associate Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute

Women in the United States have strived for, and achieved, equality in many areas, and have rights and freedoms unparalleled in many countries around the world.  However, despite an array of legal protections, women continue to face barriers to equality.

The ways that human rights might level the playing field was the focus of the recent visit of the U.N. Working Group on discrimination against women in law and practice.  The Group spent two weeks in the U.S., meeting with government representatives, lawyers, and advocates in Washington, D.C., Alabama, Texas, and Oregon.  The Working Group’s conclusion:  the United States “lags behind” human rights standards in protecting women’s rights.  As the Working Group opined  “[t]here is a myth that women already enjoy all these rights and protections under U.S. law.  However, there are missing rights and protections.” 

One area where the Working Group was taken aback was the degree of U.S. workplace hostility to women workers, particularly when it comes to pregnant workers and workers with caregiving responsibilities.  And rightly so.  There are significant gaps in protections in the arenas of gender pay equity, workplace accommodations for pregnancy, and paid leave, among others.

What does the lack of legal protection mean for American women? The answer depends, in part, on where you live.  

Alabama, one of the states visited by the Working Group, demonstrates some of the harshest challenges facing women – it ranks 48th nationally with respect to support services for working parents, making it one of the worst states in which to be a caregiver of children.  In Alabama, women are paid 73 cents for every dollar paid to men, with a yearly wage gap of $12,109.  For women of color in Alabama, the disparity is even greater, as black women earn 57 cents for every dollar that white men make, while Latina women earn less than 41 cents.

Alabama has no state level protection requiring employers to provide accommodations for pregnant women in the workplace so that they can remain employed.  Employers do not have to allow pregnant workers to carry around a water bottle or sit down when needed, for example, and can push these workers out on leave rather than allow them to work through their pregnancies.  As a result of the lack of policies that ensure common sense pregnancy accommodations, pregnant women are exceptionally vulnerable to discriminatory treatment by their employers.  In many cases, women in Alabama and around the country are forced to choose between a paycheck and a healthy pregnancy.  With infant mortality rates above the national average in Alabama, and maternal mortality rates on the rise in the rural South, there is an urgent need for policies to ensure that pregnant workers can maintain their health.

Of course, these challenges do not end at the conclusion of pregnancy.  Women with children continue to face myriad challenges in balancing workplace responsibilities and caregiving.  

The U.S. is the only industrialized country that fails to ensure workers are provided paid parental leave.  This is not just a global embarrassment.  It is the reason that only 12 per cent of the private sector workforce is eligible for paid family leave, offered voluntarily by their employer.  Yes, that means the majority of working women do not have access to paid family leave when they have a baby.  This has real and tangible psychological, physical, emotional, and economic consequences. 

The U.S. also fails to provide paid leave to care for ill family members and there is no national guarantee of paid sick time.  Nationally, upwards of 40 million workers are not entitled to a single paid sick day, and 38 per cent of employees in the private sector have no paid sick time. In Alabama, which lacks any sick time protections, 44.6 per cent of private sector employees (more than 670,000 workers) have no ability to earn paid sick time.  There are also significant implications for the approximately 700,000 children who live in families in which both parents work, or in single-parent households.

In many states, like Alabama, existing protections are a far cry from human rights standards.  Yet there are cities and states that are working hard to make progress. 

Human rights call for equal pay for men and women; for maternity leave with pay; for policies that enable parents to balance family obligations with work responsibilities; as well as for special workplace protections for pregnant women.  These protections are laid out in CEDAW, the comprehensive treaty on women’s rights.  International human rights experts have also specifically called on the U.S. to introduce paid parental leave and to address the pay gap. 

There is cause for optimism that the U.S. is moving in the right direction.  In the absence of federal movement on paid family leave, paid sick time, and pregnancy accommodations, three U.S. states have enacted legislation requiring employers to provide paid family leave insurance to their workersNew York began to offer paid parental leave to non-union city employees, four states, the District of Columbia, and twenty localities now have paid sick time laws insuring a minimal amount of paid sick time to most workers, and sixteen states, the District of Columbia, and four localities have protections that offer at least some accommodations for pregnant workers.  Obama has used his executive authority to make incremental improvements, including by fostering transparency in wages.

These are positive steps, but further action is needed at the state and federal level. Federal legislation that has been introduced such as the Paycheck Fairness Act, the Pregnant Workers Fairness Act, the Schedules that Work Act, the FAMILY Act, and the Healthy Families Act would contribute to gender equality for working women and provide better support for families. If enacted, these laws would bring the U.S. much closer to human rights standards for fair treatment in the workplace.   Standards that offer stronger support for women, children, and families.      

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Editors' Note: This post is based on a piece that originally appeared on HuffingtonPost, co-authored by JoAnn Kamuf Ward and Hillary Scrivani, the Kennedy Fellow at A Better Balance.  A Better Balance and the Columbia Law School Human Rights Clinic drafted this submission to the U.N. Working Group.  

 

Upcoming Human Rights Events

Check out these three upcoming human rights events:

Human Rights, Borders and Barriers Symposium, Feb. 22-24, 6-9 p.m. for three successive evenings, sponsored by the University of Arizona Foundation.  This free symposium will feature speakers talking about such topics as human rights, migration flows in the US, Europe, and Africa, terrorism, war conflicts, and freedom of expression.  Lectures and discussions will focus on contemporary national and transnational issues such as Ferguson, Charleston, Baltimore, Charlie Hebdo, Paris attacks, and the global refugee crisis

The George Washington University Law School is hosting an International Law Review Symposium on the Identity and Future of Human Rights. The symposium will be held on Saturday, April 9, 2016 from 9:00am-4:15pm (EST).  The organizers write:

The modern human rights project began with the passage of the Universal Declaration of Human Rights and the drafting of the two Covenants on Civil and Political and Economic, Social and Cultural Rights. Following this, special agreements started being drafted, applicable specifically to groups such as racial minorities, women, migrants, and others. Are these special agreements simply a reflection of special interest politics that undermine the notion of universal human rights or do they reinforce universal norms? How much do these specific treaties call for accommodation or exemptions from otherwise applicable laws? Are regional systems part of the subdivision of human rights to reflect regional identity or do they provide effective means to enforce global standards?

BU School of Public Health hosts (Public) Health and Human Rights, April 6, 9 a.m. - 3 p.m. , with speakers Juan Mendez and  Dainius Pūras.  According to the symposium website:

             The right to health both defines a “health in all policies” agenda and prohibits state cruelty. The UN rapporteurs on             the right to health and torture will help us set a forward-looking health and human rights strategy.

What We Lose with Scalia

A number of commentators who do not share the late Justice Scalia's politics have noted his role in helping progressives sharpen their arguments.  One area in which he certainly played that role was in the debate concerning the citation of international and foreign law in US courts.  In a remarkable series of exchanges, both on and off the bench, Justice Scalia parried with Justices Breyer, Ginsburg and Kennedy on this issue.  And beyond his colleagues, his provocative views triggered an avalanche of law review articles on the subject.

At the end of the day, of course, he was in the minority on this issue, as so many others.  On the current Court, Justice Breyer, Ginsburg, Kennedy, Kagan and Sotomayor are all on record approving of the idea that international and foreign law has a place in domestic adjudication.  But had Scalia not taken up this debate, perhaps it's fair to say that we would not have had the benefit of the extensive back-and-forth that so clearly illuminated the reasons that the practice is appropriate. 

One commentator has suggested that Justice Scalia's status as a foreign law deny-er and his dismissive treatment of foreign jurists and their work alienated foreign jurists and diminished the Supreme Court.  More likely, though, foreign jurists appreciated the qualities that Scalia's political opposites in the US also enjoyed -- his good humor, high energy and quick wit -- and gave little weight to Scalia's minority views.  Indeed, after some low points in the 1980s and '90s, the Supreme Court has re-engaged with the larger world in, for example, its decisions on marriage equality and the juvenile death penalty.  Scalia's efforts to pull the Court back from that international judicial dialogue may have been provocative, and they certainly were vigorous, but they failed, and the Court's stature is all the better for it.  

The Human Right to Sanitation

Inga Winkler, a scholar in residence at NYU Law School, is a leading thinker and writer on the human right to water and sanitation.  Her definitive book, The Human Right to Water, appeared in 2012.  Now, she has contributed a companion analysis of the human right to sanitation: The Human Right to Sanitation, forthcoming in 37 U. Penn J. Int'l L. (2016).  The article is currently available on SSRN.  Here is the abstract: 

Abstract:     

Sanitation is a very personal and private matter, inextricably linked to human dignity. At the same time, sanitation has an important public health dimension. In this regard, sanitation is not only about an individual’s right to have access to a toilet or latrine. Inadequate sanitation leads to contamination of the environment, of public spaces and water bodies through feces and wastewater and therefore has a negative impact on public health and the life and well-being of everyone in the community, affecting their human rights to health, life, food, and a healthy environment. This multitude of rights concerned makes sanitation complex to understand and address through the lens of human rights.

The Article provides background on the lack of access to sanitation faced by billions of people and highlights, in particular, inequalities in access to sanitation. It discusses how sanitation has long been, and continues to be, a neglected issue and how it is slowly gaining more and more attention, including in the context of human rights. The Article traces the steps that led to the political recognition of the human right to sanitation, and then discusses the legal status of the right to sanitation: is sanitation a “new” human right? Or has it rather been an implicit component of existing human rights guarantees that has only recently started receiving increasing attention? The Article argues that sanitation has a legal basis in existing human rights law and is best understood as a distinct human right (also distinct from the human right to water) as a component of the human right to an adequate standard of living. It provides clarification on the definition and specification of the right to sanitation through the criteria of availability, accessibility, affordability, quality and hygiene, and acceptability.

Finally, the Article discusses the complexity of realizing the right to sanitation and related human rights combining the aspects of individual dignity and public health. It acknowledges that sanitation is largely a matter of individual responsibility, but argues that states have a significant role to play in creating the environment that enables individuals to practice adequate sanitation as well as in ensuring public health.

 

Sex Workers: Adding Their Voice to the Discussion

Editor's Note: This is the final post in a three part series by Margaret Drew on concerns of those living with HIV.

This series concludes with an appeal to consider the voices of the most vulnerable and politically powerless of those living with HIV:  sex workers.   Katherine Hanssens, Executive Director and Founder of the Center for HIV Law and Policy, has called for the inclusion of sex workers in the national discussion of HIV.   Sex workers are stigmatized in ways that are usually not encountered by others living with HIV.  The disdain and dismissiveness with which sex workers are treated in both U.S. law and culture compounds when HIV is added to the existing stigma experienced through the gender oppression of sex workers.  Sex workers also are often poor and experience abuse, both in their personal relationships as well as professionally. In some cases, sex workers are dealing with addictions, as well.

Effective advocacy efforts must include sex workers.  As the Center's website states: "Effective advocacy strategies seek to empower, rather than shame or punish, the sex worker community, and are often most successful when led by sex workers themselves."

One of the greatest health risks to sex workers is the policy of many police departments who arrest those in possession of an arbitrary number of condoms.  This policy caused sex workers to reduce the number of condoms they carry and engaging in unprotected sex.  The policy leaves sex workers as one of the populations left without significant choice in ways to protect themselves from HIV and other sexually transmitted health conditions.  The condom possession is then used to make a case of prostitution.

Missing from the discussion of this policy targeted at an unpopular segment of our society are those targeted.  But Human Rights Watch changed the discussion by conducting a 2012 study of the effect on condom restriction on sex workers.  Most reported that the policy resulted in their having more unprotected sex presenting a serious health risk for them as well as a public health concern.

 In 2014, influenced by the study, the New York City police department ended their condom carrying policy in response to pleas from public health advocates.  In large part, changes in police policy resulted from the work of Human Rights Watch.  Wer eit not for human rights advocates, criminalization of the marginalized expands, if only because those in the criminal justice system are not thinking holistically.  In this case, police policy designed to enhance prosecution neglected the public health needs of the general population.

Organizations such as Human Rights Watch provide a service to the marginalized in providing data in order to effect policy change.  The next step is,  as Hanssens says, is to bring sex workers into the conversation thereby igniting the cultural shift from dismissing the marginalized to respecting their voices.  

 

Human Right of Love Part II: Valentine's Day Special Student Post

Editors' Note:  Last year on Valentine’s Day Lauren E. Bartlett wrote a blog post here examining the human rights love.  Her terrific student, Desirae Bedford, has agreed to share some of her thoughts on love and religion, in loose reaction to Lauren Bartlett’s post from last year.  Desirae Bedford describes a struggle between devotion to the Christian faith and support for the expansion of human rights that is all too common across the U.S.  Desirae Bedford is from Cincinnati, Ohio, and went to Wilmington College in Wilmington, Ohio.  She is President of the Black Law Students Association at Ohio Northern University Pettit College of Law and she will be graduating in May 2016. Ms.  Bedford can be contacted at [email protected]. Ms. Bedford writes:

 
Love is in the air and for the first time in U.S. history, nationwide same-sex marriage will be celebrated over Valentine’s Day. For decades same-sex marriage was illegal in the United States, with the exception of some states. With the disproportionality of the gay marriage laws, what one person could celebrate in New York another could not in Ohio.  In the infamous case Obergefell v. Hodges the U.S. Supreme Court leveled the field in a 5-4 decision, which ruled that same-sex marriage was guaranteed under the due process and equal protection clauses in the 14^th Amendment. The United States became the 21^st country to legalize same-sex marriage.  With over 190 countries recognized by the United Nations, the LGBTQI community is not even halfway close to same-sex marriage recognition worldwide.  In some countries before same-sex marriage can be discussed, talks of basic LGBTQI human rights have to happen first.  In countries like Ghana homosexual acts are punishable by imprisonment. 

There are other countries that find homosexuality so repulsive that such acts are punishable by death—Yemen for instance.   For many of these countries, it is their religious beliefs that influence their thoughts on love, relationships and moral responsibility. In this battle of universal love, it’s a fight between religious moralities and human rights.  Bishop Gyamfi of Sunyani, a Catholic bishop in Ghana, spoke openly about the need for Ghanaian’s to rebuke European cultural and its heavy influence on the Ghanaian families.  He described these influences as both direct and indirect attacks on the family structures. He urges families to restore the family God had intended.

For many people they are their religion and their faith, and devotion to their faith is a reflection of who they are.  In the United States we guarantee everyone the right to believe in and practice their faith according to what they see best fit for themselves. We call this freedom of religion, but when does the support of one human right make another subordinate?  Though same-sex marriage is recognized in the United States, the conflict of Christianity and human rights is one that is still apparent in the United States and around the world.

There are two types of Christian believers. There are those who believe that they are their faith and because so they must make decisions according to how God would want them to represent him, even if that means depriving someone else of happiness. Then there are those who believe that they can represent God without having to project their own belief onto someone else.  Therefore, on issues such as abortion and gay marriage, they do not vote according to their own belief, but with the thought that other people should be allowed to make their own decisions. People who vote or make decisions with this latter ideology struggle with the notion of doing God’s work. By allowing everyone the freedom of choice, are they sacrificing salvation? 

Followers of the Christian faith believe in the notion that God wants people to choose Him, and do not want people forced to believe in Him. With our ability to reason and use logic, God wants people to use their rationale to believe and develop a relationship with him without force.  With this thinking, are those that would vote to allow people to make their own decision, and to believe according to their own faith, correct?

If you choose to be a believer and decide not to vote on matters based on your beliefs does that mean that you are not choosing to entirely follow God, and does the opposite mean that those who vote entirely on their faith are the true followers? This is circular reasoning, but is one that explicitly describes the reason why so many people struggle with allowing LGBTQI rights in their country. In order for LGBTQI rights to be openly supported, navigating through these questions of faith and religion have to first be accomplished if LGBTQI rights are going to be accepted without animosity or hostility. 

 

  

  

 

Women and HIV

    According to the Center for HIV Law and Policy, women living with HIV statistically tend to be poor and women of color.  These and other women living with HIV, face multiple societal and cultural barriers, and are further stigmatized because of their HIV status.  Women face barriers that men with HIV do not.

    The interplay of the triple stigma is no more evident than in family court.  At least one half of women living with HIV report being in or having been in an abusive relationship.  They experience partners controlling their medication. In some cases, their HIV positive partners consume the medication rather then seek medical help on their own.  Women who seek civil protection orders must consider the likelihood of the partner's "outing" their medical condition in open court or through public documents.  Often women choose not to reveal their HIV status, trading critical  testimony for either privacy or the abusive partner's silence.  Jane Stover addressed the difficulties of HIV positive battered women in her article Stories Absent from the Courtroom: Responding to Domestic Violence in the context of HIV-AIDS.  But not all of the legal challenges originate with  abusers. 

    Mothers living with HIV face challenges in custody matters that HIV positive fathers do not.   When women are infected, particularly women of color, courts are concerned with the cause of infection.  Consistent with the cultural expectation of the "perfect mother", presumptions are made around women's sexuality, including promiscuity and sex work.  Reproductive rights can be impinged by physicians not understanding that for medically treated mothers, transmission between mother and fetus is nearly impossible. 

    Women also can be encouraged to take PrEP, the relatively new medication that has proven effective in preventing transmission.  But the drug's  testing was done largely with the men who have sex with men.  The research leaves unanswered questions of how the drug will impact women's hormonal systems as well as bone density.  Little has been done to ensure the safety of children breastfeeding from mothers who take PrEP.  And transgender women need studies separate from other women. 

       Two organizations that focus exclusively on the needs of women living with HIV are creating change.  Positive Women's Network has  conducted research on the barriers faced by HIV positive women and SisterLove assists women living with HIV in resolving their health care challenges, including reproductive health.  The greatest health care challenge may be how to make health care and research systems gender inclusive when addressing solutions for those living with HIV.

 

Criminalization of HIV: A Human Rights Call for Science Based Laws

This is the first in a series of posts addressing the status of those in the US living with HIV/AIDS.

To varying degrees of culpability, over thirty states in the nation have laws criminalizing having sex while HIV positive.     States vary from treating HIV the same as exposing a partner to any STI to intentional infection of a sexual partner.  Many of the statutes are based upon outdated science.

Most criminalization statutes originated during the hysteria of the 1980's when thousands, primarily gay men, died of the virus because no stabilizing or preventive medication had been developed.  The treatment world has changed.  And while a few states amended or invalidated laws designed to punish those living with HIV for having sex without disclosing their status, overall the U.S. has done very little to update laws to reflect the limited likelihood of transmission.

No longer is HIV a terminal condition.  Contemporary treatments are effective not only in extending life within normal range, but in prohibiting transmission.  Viral loads can be undetectable, making transmission impossible. Aids.gov states that HIV cannot be transmitted through saliva.  There is no known case of HIV transmission through spitting, yet many states enhance punishment for those who are HIV positive and spit on a police officer. Bad science makes bad laws. 

 In 2008, a man in Iowa, Nick Rhoades. was sentenced to 25 years after a one time sexual encounter during which he used a condom but did not disclose his positive status. His viral load was undetectable.  After spending over five years in jail, his sentence was reduced to time served after Lambda Legal successfully assumed representation.  Prison release happened only after Rhoades spent six weeks in solitary confinement, a traumatizing experience all its own.

While HIV is treatable, this does not diminish anguish felt by those who have been infected through a non-disclosing sexual partner. But the penalty for transmission, even intentional, is often as great or greater for crimes of where the victims are killed. The most recent conviction took place in Missouri last year.  Twenty-three year old Michael Johnson was prosecuted for knowingly exposing sexual partners to HIV.  Only one of the partners  contracted HIV due to the encounter with Johnson.  Johnson was sentenced to over 30 years in prison, a sentence far longer than most manslaughter sentences.  

According to the Center for HIV Law and Policy  nearly two hundred HIV prosecutions have occurred since 2008.  

The Global Network of People Living with HIV calls the US one of the world's hotspots for HIV criminalization.

 

 

If the U.S. Had a National Human Rights Institution . . .

Unlike over 100 other nations, the United States does not have a national human rights institution (NHRI). But if it did, the US NHRI could participate in an international HRI-led initiative designed to strengthen HRIs' oversight of water-related inequalities and other human rights violations.  The initiative was first launched in 2013 with a focus on good water governance.  As stated in its founding documents, "NHRIs can provide a core function in the promotion and protection of human rights linked to water and water governance and contribute to a human rights-based water governance." 

In furtherance of these goals, in late January 2016, WaterLex and the Danish and South African human rights institutions published a training manual for use by NHRIs.  And in March 2016, they will launch an on-line training platform on water rights for NHRIs.

US advocates have been working for some years to establish an NHRI without success.  But as we in the US learned in recent weeks, human rights oversight is critically important when it comes to water.  If the US did have an NHRI, it could fill an important gap in monitoring, sharing information,  and supporting local implementation of the human right to water and sanitation.          

The Fair Food Program: A Human Rights Success Story

By: 

Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute, and lecturer-in-law, Columbia Law School

Human rights are alive and well in the Florida tomato fields, according to a report released last week by the Fair Food Standards Council. The report is the third annual update on the Fair Food Program, a groundbreaking worker-driven social responsibility program based in human rights. An outgrowth of the Coalition of Immokalee Workers’
(CIW) Campaign for Fair Food, the Program is combating human trafficking, forced labor, sexual assault, and wage theft within the Florida tomato industry, and securing dramatic improvements in worker health and safety conditions. According to experts discussing the new report at a launch event last week, the Program is inspiring new efforts, as well.

The Fair Food Program has its origins in CIW’s Boot the Bell campaign, an almost four year boycott of Taco Bell that led to a 2005 Fair Food Agreement with Yum Brands (parent company of Taco Bell, Pizza Hut and KFC). Over the past ten years, the Program has grown remarkably, with retail and restaurant giants including Walmart, Whole Foods, McDonald’s, Burger King, Chipotle, Ahold USA, and Aramark signing on. These companies pledge to buy only from tomato growers who comply with the Fair Food Standards, a human rights-based Code of Conduct, and to pay the growers an extra penny-a-pound, which is passed on the workers. The new report notes that the 14 participating companies have paid $20 million in premiums through the penny-a-pound provision.

The new report confirms improvements to the Florida tomato industry recently reported by CBS News and the New York Times. The success of the Fair Food Program was recognized by the UN Working Group on Business and Human Rights during its 2013 visit to the U.S. and lauded by U.S. Secretary of State John Kerry during a White House Forum on combating human trafficking in supply chains. At the White House event, CIW was awarded a Presidential Medal for Extraordinary Efforts to Combat Trafficking in Persons.

What contributes to the success of the Fair Food Program in eradicating modern-day slavery in Florida’s tomato industry? At the report launch event last week, experts identified two core components of the Program: it is worker-driven, and it has an “obsessive” focus on enforcement. Workers generated the Code of Conduct underlying the program, and CIW engages in worker-to-worker education on company time and company property. Company compliance with the Code of Conduct is monitored by the Fair Foods Standards Council , which overseen by Judge Laura Safer Espinoza, a recently retired New York State Supreme Court Justice. And it is backed by market consequences. Growers who violate the code are suspended from the program. Workers can lodge complaints through a 24-hour hotline, where calls are answered by a live person.
According to the new report, there have been over 1100 complaints brought under the Code of Conduct, leading to swift resolution of labor abuses. The Fair Food Standards Council has issued approximately 120 reports and corrective action plans, based on worker interviews and audits. According to the experts at the launch event, this efficacy also drives prevention.

The Program’s success can be measured by its replication, as well. The Fair Food Campaign is inspiring workers in other industries. Transformation might come next to the dairy industry, as the Milk with Dignity Campaign gets underway. Through the farmworker organization Migrant Justice, dairy workers in Vermont, with support and collaboration from CIW and the National Economic and Social Rights Initiative, are adapting the Fair Food Campaign model. They recently secured an agreement of cooperation with Ben and Jerry’s ice cream.

And, the Fair Food Campaign is moving into new territory, including Georgia, North and South Carolina, Virginia, Maryland, and New Jersey, as well as new industries, including the strawberry and bell pepper industries.
Success should be celebrated. And it should be shared. For those looking for ways to communicate the “value added” of human rights in the domestic context and the importance of worker-led social responsibility, the 2015 annual report on the Fair Food Program offers concrete data and powerful illustration.

The President, Human Rights and Dignity

One observation of President Obama as he completes his presidential term is amazement at his ability to remain spiritually centered during eight years of personal, hateful, attacks.  Over the course of the past eighteen months, the President has been less constrained in his comments on racial and gender inequities.   He is able to address, in action as well as speech, issues that he may have avoided or minimized when facing re-election.

But even if the President were not now loudly promoting equity for the culturally marginalized and other human rights, I would honor him for a significant personal and public achievement. Against odds, he is leaving office a centered man.

While sometimes his frustrations with the political process leaked through, grace has been his hallmark response when criticized or stonewalled. As with all presidents, he has aged notably. As with his predecessors , this President has experienced responsibilities that were not imagined during his first campaign. The responsibilities are humbling. President Obama acknowledged that daily briefings on the extent of terrorist activities has softened some of his criticisms of his immediate predecessor. Nursing the economy back to stability has taken patience and persistence in the face of public and congressional criticism.

While these pressures may seem extraordinary to us, they are ordinary for presidents.  What has been unusual for this President was the unreasonable, aggressive opposition he experienced not because of his political choices but because of who he is:  a black man in what is often considered the most powerful position in the world. Racism trumps reason.  Times over the past seven years when Congress came together to act in the best interests of the country can barely be sussed out.  For many, the exclusive agenda was to undo the black man.   Mission not accomplished.

Dignity has been a recurring theme on this blog.  Dignity is the cornerstone of human rights work.  Justice Kennedy's invocation of dignity in Obergefell v. Hodges has been pondered by our bloggers.  No matter what our political criticism and differences, we would be missing an opportunity to recognize personal dignity if we do not honor the President's ability to maintain his own under incredible pressure.  While no doubt the attacks have caused him personal strain, President Obama's centered leadership model in spite of the strain has been a singular accomplishment of his administration.   

As noted at the time, awarding the Nobel Prize for Peace early in his presidency was premature.  The sentiment supporting the award may have been for the singular and amazing accomplish of being elected while black. The award might have carried more significance if given at the end of the President's term for his ability to maintain peaceful leadership within our country despite what many consider a war on him.

The Global South and the Rise of Human Rights Post-1945

A new book from Cambridge,  The Making of Human Rights: The 1960s, Decolonization, and the Reconstruction of Global Values, by Stephen L.B. Jensen, due out this month, promises to make an important contribution to the scholarly dialogue on the origins of contemporary human rights.  According to the Cambridge website:

"This book fundamentally reinterprets the history of international human rights in the post-1945 era by documenting how pivotal the Global South was for their breakthrough. In stark contrast to other contemporary human rights historians who have focused almost exclusively on the 1940s and the 1970s - heavily privileging Western agency - Steven L. B. Jensen convincingly argues that it was in the 1960s that universal human rights had their breakthrough. This is a ground-breaking work that places race and religion at the center of these developments and focuses on a core group of states who led the human rights breakthrough, namely Jamaica, Liberia, Ghana, and the Philippines. They transformed the norms upon which the international community today is built. Their efforts in the 1960s post-colonial moment laid the foundation - in profound and surprising ways - for the so-called human rights revolution in the 1970s, when Western activists and states began to embrace human rights."

Trained as a historian, Jensen is a scholar of considerable breadth, working at the Danish Institute for Human Rights on issues ranging from HIV to national human rights institutions.  His new book promises to provide a much-needed southern perspective on a historical era that has been dominated by northern-focused scholars.  Check it out!

Resources on the Human Right to Water and Sanitation in the US Context

Law profs and others may be looking for resources to support classroom discussions of water issues in Flint, Detroit, California and elsewhere through a human rights lens.  This blog collects some of the material that we've found most useful.  First, for a comprehensive overview of the human right to water and sanitation, check out The Human Right to Water by Inga Winkler.   It's an authoritative work that is a valuable reference in this area.   For more general background materials, see the website of the UN Special Rapporteur on the Right to Safe Drinking Water and Sanitation.  This website also includes some US-specific materials, since the prior Rapporteur completed a mission to the US in 2011.  The report from that US mission is available here. 

Most US-related materials do not adopt a human rights perspective, but can be used to lay the groundwork for a human rights-related discussion.  For example, Sharmila Murthy's forthcoming article on Detroit's water shutoffs does not take a human rights approach, but argues that water should be deemed a constitutive commitment on the order of a constitutionally protected right. Jon Monger's Note on the Kennedy v. Zanesville case tells the dramatic story of that case while also demonstrating the limits of a civil rights approach to water access.

Several law school clinics have recently produced significant work on human rights at water that may be useful.  In the wake of California's human right to water law, the Berkeley Clinic produced The Human Right to Water Bill in California: An Implementation Framework for State Agencies, with ideas about how to operationalize this right.  The Georgetown Human Rights Institute published Tapped Out: Threats to the Human Right to Water in Urban United States.  Clinics also took the lead in requesting a hearing on water rights in the US before the InterAmerican Commission on Human Rights, held in 2015. The Santa Clara Human Rights Clinic's submission to the IACHR is here.

Finally, ESCR-Net filed an amicus brief in Detroit arguing that the court considering a challenge to water terminations should take human rights into consideration.  That brief, which brings together relevant international law and applies it in a US context, is available here.