Thursday, March 30, 2017

Breaking News: North Carolina Repeals HB2

by Jeremiah Ho

Today the North Carolina state legislature voted to repeal HB2, the infamous bathroom bill from 2016 that restricted transgender individuals from using the public restrooms that reflected their gender identities.  The repeal was completed with a compromise bill that was signed this afternoon by the new governor, Roy Cooper.  The repeal was sought, in part, because of the economic threats resulting from big business boycotts in reaction to last year's bill.  Observe that North Carolina still does not have antidiscrimination laws protecting LGBTQ individuals. 

Here is the New York Times coverage.

This is the second time that threatened economic consequences have been effective in changing  North Carolina policy that discriminated against members of the LGBT community.  See our prior coverage.

March 30, 2017 in Gender, Gender Oppression, Jeremiah Ho, LGBT | Permalink | Comments (0)

Wednesday, March 29, 2017

New Protest Restrictions Mean Human Rights Violations by U.S.

Cindy Soohoo sends along this post authored by CUNY law student Chelsea Wilson Miller

Nineteen U.S. states have introduced bills since President Trump’s election victory that threaten the right to peaceful assembly. At least fifteen bills are deemed “anti-protest,” or downright unconstitutional by the ACLU. Fourteen states are considering these measures, either in Committee or on their State Legislature floor. Some states have even introduced more than one bill to limit or punish protestors.  

The right to peaceful assembly is a fundamental constitutional right in the United States (U.S.), and there is no justification for imposing new laws restricting the right.  In the event that the protest becomes violent and crimes are committed, law enforcement officers already have the ability to arrest the wrongdoer. Even before the anti-protest laws, state police have been overcharging protestors under existing trespass or obstruction laws.

Under international law, the right of peaceful assembly is protected by Article 21 of the International Covenant on Civil and Political Rights (ICCPR), which was ratified by the U.S. in 1992. In 2010, the United Nations (U.N.) Human Rights Council created the position of Special Rapporteur on the rights to freedom of peaceful assembly and of association to monitor and report on threats to freedom of assembly throughout the world. In July 2016, U.N. Special Rapporteur Maina Kiai conducted an official mission to the U.S. and reported that America was “struggling to live up to its ideals.” He described rampant racism and exclusion, especially of African-Americans, and unequal economic wealth distribution following the 2007-08 financial crisis. These events, he found, gave way to increased demonstrations.

Special Rapporteur Kiai is due to present his final report on his U.S. visit to the Human Rights Council in June 2017.  Even before the newly introduced anti-protest bills, the preliminarily statement issued at the end of his visit found that the U.S. does not conform with international human rights law.   The Special Rapporteur emphasized that the human right to peaceful assembly “guarantees that people may conduct assemblies, and restrictions to this right – be it on their time, place or manner – need to meet the standards under international law.” Further, he cautioned that “[w]hen a right is subjected to a permit or authorization requirement, it becomes a privilege rather than a right.”

Unfortunately, many of the bills introduced restrict the right to assembly further than simple permit requirements. Iowa’s bill, for example, would unbelievably punish protestors who block traffic with up to five years in prison.  And a proposed Tennessee law would immunize drivers for accidently hitting a protester on a roadway.  One of Minnesota’s introduced bills would allow “governmental units” to sue protesters for policing costs related to unlawful assembly or public nuisance.

A multiple-law school clinic collaboration known as the Protest and Assembly Rights Project published a 2012 report in which they affirmed that “States have a duty under international law not to interfere with assembly and expression rights, and also a positive duty to protect the rights.”  Additionally, international legal bodies, like the European Court of Human Rights, have affirmed that “assemblies and protests are protected in public places.” This protection is directly contradicted by several of the states’ bills, which aim to unreasonably punish protestors in public streets. Another major concern is that the anti-protest legislation will result in increased police power, further restricting the right to assembly. As the ACLU has wisely noted: “Legislators in states with robust protest activity should have one priority: listening to those voices (even if, and perhaps especially when, they disagree with them).” State legislators should not be seeking creative ways to instead silence their constituents.  If passed, these bills would certainly limit protestors’ access to public spaces in violation of international human rights.

On March 21, 2017, Special Rapporteur Kiai testified before the Tom Lantos Human Rights Commission. He called on the U.S. “to set an example by promoting and protecting the fundamental rights of its citizens, and the people on its soil.” Among other actions, he encouraged the U.S. to embrace the power of freedom of peaceful assembly instead of allowing legal efforts to violate and undermine it. The Special Rapporteur warned the U.S. Congress that this is not a time for empty words, that the stakes are too high.

The Special Rapporteur will get another opportunity to comment on the right to freedom of assembly in the U.S. in his upcoming final report to the U.N. Human Rights Council and would be remiss to not include the proposed legislation that restrict protest rights. In an email to the US Human Rights Network, his staff indicated that they “have been following media accounts of developments around . . .  the proposed anti-protest laws but would certainly welcome additional information.” Any relevant information can be sent to the Special Rapporteur’s staff at: [email protected].

It’s vital that the Special Rapporteur condemn these anti-protest bills and put the U.S. on notice that the proposed laws impose impermissible burdens on assembly. As he said in March, the stakes are too high not to speak out. People can also build movement and power by speaking out against these bills. Like the Special Rapporteur recently said, “It is precisely because civil society can be so powerful, persuasive and persistent that governments are moving to restricting it. And it is precisely because civil society has been so successful in motivating change that those with power, including powerful business interests, are fighting back.” It’s time for the U.N. and the people of the U.S. to work together, to speak up and fight back against states’ impending human rights violations.


March 29, 2017 | Permalink | Comments (0)

Tuesday, March 28, 2017

Oh Canada, Oh Canada -- We Need You!

by Sarah Paoletti, Penn Law, and JoAnn Kamuf Ward, Columbia Human Rights Institute.  The authors are co-chairs of Bringing Human Rights Home Network Inter-American Working Group

For decades, advocates from the United States have petitioned the Inter-American Commission on Human Rights on human rights concerns resulting from U.S. law and policy.  Key concerns range from the death penalty to voter disenfranchisement, from indigenous, migrant and immigrant rights to domestic violence.  Since 9/11, proceedings have increasingly addressed rights abuses arising from the detention of individuals in Guantanamo, the use of military tribunals, and other actions taken under the pretext of national security.  And for decades, advocates have been strategizing about how to get those outside of the hearing room to pay attention to the hearings and the ultimate findings and recommendations of the Commission. Ironically, it is the United States’ failure to appear for hearings scheduled during the 161st Period of Session that has generated the most media coverage and attention.

In the media and here, people have questioned and hypothesized about what the US’ failure to appear means for human rights under this administration? Does it portend greater isolationism?  Does it confirm fears that this administration does not respect international human rights and the mechanisms in place to protect and promote them?  Is this merely a symptom of disorganization (or chaos?) within the State Department?  Or perhaps this action reveals something more insidious about the role of the State Department in this administration? But the real question for human rights defenders is:  what do we do now?  How do we ensure the strength and credibility of the Inter-American Commission on Human Rights and ensure the Commission has the capacity to continue playing a critical role in advancing human rights across the region? 

At least part of that answer may come from our neighbors to the north – Canada. 

The failure of the United States to show up on the last day of hearing of the 161st Period of Sessions marked the end of what has been a troubled year for the Commission.  Just last May, the Commission revealed that it was in dire financial straits, and announced the suspension of hearings and pending layoffs of a significant percentage of its staff.  Those announcements came amidst ongoing discussions among governments, advocates and Commissioners about the IACHR’s core functions, marked by numerous proposals from regional governments with a vested interest in undercutting the Commission’s independence and autonomy.  Throughout the deeply politicized struggles at the OAS General Assembly and the Commission itself, the United States served as a bulwark against proposals that undermined the Inter-American Human Rights system, and the Commission in particular.  The U.S. has consistently been the principle financial contributor to the Commission, and has spearheaded efforts to ensure the Commission remains viable and independent.

So, in many respects, the U.S. has led.  But as advocates regularly reminded the United States, its critical efforts were consistently undermined by U.S. failure to ratify the American Convention on Human Rights, the repeated refrain, on and off the record, that the U.S. does not recognize the jurisdiction of the Commission to interpret the United States’ obligations under the American Declaration on the Rights and Duties of Man or the few international human rights treaties that the United States had ratified, as well as the United States’  lackluster – at best – performance disseminating and implementing Commission recommendations.  The recent no-show – alongside Cuba and Nicaragua – further undermines the United States advocacy power within the OAS.  This is true even if we assume the State Department maintains a commitment to the Commission as an independent and autonomous promoter and protector of human rights in the region.   It is looking to our neighbor to the north that we might glean a seed of hope, that there remains a supportive voice in North America. 

Yes, Canada, we need you-now more than ever. 

The U.S. and Canada have often been lumped together in the OAS, because of geographic proximity, language similarities, and federalist systems, as well as mixed levels of engagement with the Inter-American System.   Yet, in recent months you, Canada, have certainly been leagues ahead when it comes to supporting human rights.  In response to the Muslim and refugee ban enacted through Trump’s executive order, you responded that refugees were always welcome in Canada.  In response to hate speech and virulently discriminatory rhetoric, you’ve stood up and spoken for the rights of women and people of color.  Indeed you’ve gone even further to commit to having a truly representative government where women and people of color hold positions of power and authority.  We have been watching in awe and thanks down here in the United States.  

Yet your participation at the Commission, like ours, has lagged behind.  You, too, have failed to ratify the American Convention on Human Rights.  You, too, face criticism before the Commission on issues such as gross violations of rights of indigenous women, detention of refugees and, right to freedom of expression and antiterrorist legislation, among others.  And you, too, have failed to take real action to implement recommendations from the Commission. 

It is time for you to lead.  Yes, Ratify the American Convention!  Yes, assert your commitment to the Inter-American Human Rights system through strong public statements, and through robust engagement!  Yes, call on your neighbors to do the same!  Your leadership can help influence the OAS member countries in the Caribbean and demonstrate to those countries who have not ratified the American Convention, the value of doing so.  Your leadership before the OAS General Assembly can help ensure the financial stability, independence and autonomy of the Commission.  The Commission needs your leadership now, more than ever, and so do we.   A strong and credible voice on human rights will reap benefits across the Americas – including for those of us in the United States. 


[Editors' Note:  This blog is part of a Scholarly Voices "blog-in" on US participation in the IACHR.  The other blogs in the series are linked here.]

March 28, 2017 | Permalink | Comments (0)

Scholarly Voices: A "Blog-In" on US Participation in IACHR Proceedings

For the past week, scholars have spoken out in this blog and elsewhere about the US government's calculated failure to attend a hearing of the InterAmerican Commission on Human Rights on March 21, 2017.  As Professor Rick Wilson remembers here, it is not unprecedented for the government to fail to show up (though apparently, interns often attended to observe in the absence of official representatives).  However, as Professors Sarah Paoletti and JoAnn Kamuf Ward note, the US government has regularly attended hearings through recent administrations.   Professors Lauren Carasik and Margaret Drew observe that the government's participation showed a modicum of respect for the other nations that participate in the IACHR as well as the individual parties, such as the Standing Rock Sioux, seeking redress through the forum.  

The government's refusal to attend the hearing was communicated just the day before, accompanied by a flimsy excuse.  In her commentary, Professor Johanna Kalb ties this act to other recent activities and statements of US government officials that fail to respect the rule of law. Professor Deborah Weissman underscores the challenges that this government posture poses for legal educators trying to stave off students' cynicism. 

Professor Tara Melish reminds us, though, that even when the US government participated in hearings as a formal matter, it rarely engaged with its human rights obligations here at home.   Whether or not the US attends IACHR hearings (and for all of the reasons outlined above, it should), the task of bringing human rights home still looms large.  Professors Paoletti and Kamuf Ward worry about the impact of US actions on the IACHR, already reeling from financial challenges; they appeal to Canada to step into the breach to offer leadership.     

Though our "blog in" is over, this site will continue to serve as a forum for scholarly commentary on this issue.  For reference, here is a catalog of our Scholarly Voices "Blog-In":

Sarah Paoletti, No Excuse for US Refusal to Attend InterAmerican Commission Hearing

Deborah M. Weissman, A "No-Show" at the IACHR: A Portentous Absence

JoAnn Kamuf Ward, This is What Hypocrisy Looks Like

Johanna Kalb, Does the Trump Administration Believe in the Rule of Law?

Lauren Carasik and Margaret Drew, At the IACHR, Trump Administration Declines to Listen to Dakota Access Pipeline Opponents, Again

Tara Melish, The US "No-Show": What it Means for the IACHR and Human Rights at Home

Rick Wilson, Unusual, but not Unprecedented: A Remembrance of US Participation in IACHR Hearings

Sarah Paoletti and JoAnn Kamuf Ward, Oh Canada, Oh Canada -- We Need You!

March 28, 2017 | Permalink | Comments (0)

Monday, March 27, 2017

Unusual But Not Unprecedented: A Remembrance of US Participation in IACHR Hearings

by Rick Wilson, Prof. Emeritus, American University, Washington College of Law

I directed the International Human Rights Law Clinic at American University’s Washington College of Law from 1990 until my retirement in 2015. We filed several cases against the United States at the Inter-American Commission on Human Rights in the early years of the clinic, and started appearing at the Commission for hearings in those cases and others as early as 1992 or 1993. Proceedings then were much less formal and hearings were generally easy to get in all cases, sometimes more than once. Written decisions of the Commission were also less formal and rigorous than today. In our cases against the United States, it was routine for the State Department’s Office of the Legal Advisor to send interns as observers without formal presentation from the government. That policy changed over time, particularly when Bill Clinton was in the White House, and later when Harold Koh was in the Legal Advisor's office under President Obama. It should be noted, however, that the government consistently engaged with our pleadings in writing, submitting thorough and complete written arguments in every case. It was on the compliance end, in adverse decisions, that the U.S. really has balked, then and now.

There were at least two responses we developed if the U.S. government, like some Latin American governments still do, decided not to show up for a hearing.

First, on any occasion when there was no formal representative from the government, either we or the Commission would ask if there was anyone present in the room from the government, usually from the State Department.  Often, a sheepish law intern would identify him/herself and respond that their role was simply to observe and take notes.  The Commission always offered a seat at the table, and the look of terror in the student's eyes was always worth the price of asking.  They always declined.

Out of curiosity, I went back to take a look at some of those early cases to find whether the Commission had documented U.S. non-appearance. I did find some evidence. The first case I could find is William Andrews v. United States, Case 11.139 (1997) (curiously, not available on the Commission’s Merits Decisions website, but available at the Minnesota Human Rights Library.)  There, in February of 1994, a hearing was held where the Commission’s merits decision notes that the government “observed the hearing, but did not participate in the same.” ¶ 12. In another case, Gary Graham v. United States, Case 11.193 (2000), (the petitioner formally changed his name to Shaka Sankofa during the pendency of the petition) the Commission noted in a decision on admissibility that “a representative would attend the Commission's October 4, 1993 hearing for the purposes of observing.” ¶ 13. These were both death penalty cases in which the states involved (Utah and Texas, respectively) ignored requests of the Commission for precautionary measures to protect the lives of the petitioners during the pendency of the case in international proceedings, and both men were executed prior to the favorable decisions by the Commission discussed here. In some cases, the government at least advised the Commission that it would not participate formally.

 I also checked a few other U.S. cases from that era, and found that in both the Haitian Interdiction Case, Case 10.675, Merits (1996),  and Mary and Cary Dann v. United States, Case 11.140, Admissibility (1999),  (involving two Native American women who lost land to which they claimed aboriginal title), the government appeared in hearings held in 1993 and 1996, respectively. Thus, it appears that even then, the U.S. government’s decision to participate was selective, not an absolute policy.    

Second, there is a provision in the Commission's Rules of Procedure, Article 38, which applies a presumption in favor of the petitioners when a state fails to respond. The text reads as follows:

The facts alleged in the petition, the pertinent parts of which have been transmitted to the State in question, shall be presumed to be true if the State has not provided responsive information during the period set by the Commission under the provisions of Article 37 of these Rules of Procedure, as long as other evidence does not lead to a different conclusion.

This seems directed at written responses, so if the U.S has submitted a pleading on paper, which they regularly do, they might be assumed to have "provided responsive information," but I always liked to ask the Commission to invoke that presumption if the government failed to appear for a hearing, either orally or in writing after the hearing was over. In any event, the U.S. government’s failure to appear for a hearing is hardly a best practice, and I always felt that it demeaned the Commission and the opposing party to do so, especially when the government’s offices are just down the street and not thousands of miles away, as is the case with some countries in the Americas.

[Editors' Note:  This blog is the part of our symposium series on the  U.S. Government's failure to participate in the IACHR hearing on March 21.  The other postings, by Deborah Weissman, Sarah Paoletti, and JoAnn Kamuf Ward, respectively, are here, here and here.  Lauren Carasik and Margaret Drew comment here.  Tara Melish's analysis is here.]

March 27, 2017 | Permalink | Comments (0)

Sunday, March 26, 2017

The U.S. “No-Show”: What It Means for the IACHR and Human Rights at Home

 by Tara Melish, guest blogger, Professor, University of Buffalo Law School, Director of the Buffalo Human Rights Center.

Image1For at least the last 20 years, the U.S. government has followed a consistent policy on engagement with supranational human rights institutions that exercise supervisory jurisdiction over it, like UN treaty bodies and the Inter-American Commission on Human Rights (IACHR). This week the Trump Administration broke with a key part of that policy. In a brief phone call to the headquarters of the Inter-American Commission, the principal human rights organ of the Organization of American States, a State Department official summarily informed the Commission that no U.S. representatives would attend the next day’s scheduled hearings on the U.S.’s domestic human rights record, including the Administration’s recent executive orders on immigration, arbitrary restrictions on migrants’ access to asylum, and the decision to allow the Dakota Access Pipeline to move forward. A feeble reason was given. So feeble was it that the spokesperson acknowledged it would be unacceptable if proffered by any other government of the region. 

U.S. human rights advocates have expressed anger and alarm at the no-show. They have called the move hypocritical, emblematic of the Trump Administration’s utter disregard for human rights and human rights institutions, and a “new low” for U.S. policy. All that is true. But if we are to figure out the best strategies for reversing what we hope is not a “new normal,” it is important that we are honest about what has changed, who specifically is injured by that change, and how we can move toward a better overall policy course.  

In this regard, we should not fall into the trap of painting in too rosy a hue the United States’ longstanding policy of engagement with supranational human rights treaty bodies like the IACHR. That policy has had two reliable, if conflicting, components. The first – the one advocates are focusing on this week -- is a policy of active formal engagement with the institutional processes of the supervisory organ. The U.S. reliably shows up – often with high-level and inter-agency delegations, and sometimes with local as well as federal government interlocutors. Even in situations where ongoing domestic litigation may create the possibility of conflicts, the U.S. still sends delegations to observe, listen, record, and convey assurances of the U.S.’s respect for and commitment to the supervisory organ’s processes.

Rarely, if ever, does the U.S. acknowledge responsibility for human rights misconduct. But it does do something institutionally just as important: It engages the legal claims made against it, and aggressively defends itself from IACHR findings of violation. It vigorously defends its conduct as lawful and justified under regional human rights norms, and regularly challenges the procedural contours of the IACHR’s competence over specific matters. In so doing, it seeks to demonstrate that it takes the IACHR’s work seriously as a supranational institution, that it values civil society access to regional human rights claim-making, and that it defends the process of OAS member states being forced to “justify” their conduct before the IACHR in human rights terms.

This is indeed what human rights institutions like the IACHR are designed to do. Such institutions have many functions, at local, national and supranational levels. But, fundamentally, their purpose is to open and guarantee spaces for direct engagement between identified rights-holders and government agents responsible for protecting said persons’ rights. Such spaces are necessary when rights-based claims can’t be redressed effectively at the domestic level, whether because democratic institutions are weak and inaccessible or institutions don’t problem-solve through a human rights and rights balancing lens. In such cases, as with the immigration, asylum, and water security issues that were to have been discussed at the IACHR this past Tuesday, policy decisions often result in unjustifiable or unjustifiably severe impacts on certain groups. Human rights institutions like the IACHR exist to act as a space through which claims to such abusive or unjustified policymaking can be raised, and direct dialogue on how to redress the policy failures can be fostered with those directly responsible for it. 

And, yet, there is a second reliable component of the U.S.’s longstanding treaty body engagement policy: The U.S. vigorously rejects any obligation to change its policies or practices as a result of formal engagement or the treaty body recommendations that come out of it. For U.S. claimants, then, the very purposes to which the “engagement” component of U.S. policy is outwardly directed are undermined completely by the policy’s second component of no domestic policy impacts.

What, then, are we to make of the implications of this week’s “no show” announcement for U.S. human rights advocacy at home? The actors most severely injured by it are, of course, the IACHR as an institution and the millions of claimant communities throughout the Americas who rely on the IACHR’s convening capacity to bring their governments to the table to address human rights harms. Indeed, the fact that the U.S. has for decades now made a point to be at every hearing, has been an important factor in maintaining the Commission’s institutional credibility and power, and in pushing back against those states that have threatened to withdraw from the process. Without specific enforcement powers or even the ability to issue binding orders, the Commission is powerless if it loses its convening capacity. If the U.S. won’t show up, why should Venezuela, Cuba, Nicaragua or the Dominican Republic?

In this regard, U.S. engagement policy has never been about U.S. claimants. It has been about other governments – the “bad ones” – who might otherwise (like the U.S.) wish to disregard the IACHR’s engagement-promoting processes. The U.S. recognizes that the IACHR has played a vital and historic role in strengthening commitments to democracy and human rights throughout the region, and that strengthening the IACHR’s convening capacity is one of the most effective (and cheapest) ways to promote regional security and stability. The U.S. has therefore sought to offer itself as an “example” of the kind of high-level, interagency engagement the U.S. expects other countries of the Americas to follow.

The “no show” policy decimates this longstanding foreign policy goal. To the extent it becomes a permanent feature of U.S. policy, it removes any pretense of U.S. respect for IACHR engagement, rendering the U.S. indistinguishable from the region’s most rogue of states. For U.S. advocates committed to the regional human rights system as an institution and to our sister communities throughout the Americas, then, the “no show” policy must be reversed. Doing so will entail vigorous advocacy at the State Department level to remind officials of the reasons U.S. treaty body engagement policy has consistently favored “showing up” and engaging on the merits, even when authorities believe those claims to be unmeritorious. These reasons relate to the security and stability of the region as a whole, irrespective of how the U.S. treats internal claims made against it.

Of course, U.S. communities are harmed, too, by the “no show “policy. Yet, because U.S. engagement policy was never designed to dignify them or take their claims seriously as a practical matter, the potential shift in U.S. policy changes their opportunity structure in much more limited ways. Thus, U.S. engagement may be helpful in identifying contact points in government to put domestic political pressure on, or in organizing communities to frame claims as human rights violations, or in understanding U.S. positions on the meaning of distinct norms or processes. But it doesn’t help in getting solutions that can be implemented as part of a problem-solving process of human rights protection.

If the opportunity environment for human rights claimants in the U.S. is to change a very different set of advocacy strategies will be needed. The U.S. disregards human rights at home because it has no incentive structure to address such claims in human rights terms; political disputes are not discussed in human rights language, and political actors face no political consequence for ignoring claims brought against it before supranational treaty bodies like the IACHR. To change this, a much more complex process of building human rights from the bottom up in the U.S. needs to take place. We need to be building and strengthening our domestic human rights commissions, such that local and state actors begin to address issues in the language of human rights. We need to build human rights cities in which our communities, politicians, and the media discuss local issues of justice and equality in human rights terms. And we need to be passing human rights ordinances that require our cities, townships, and counties to routinize human rights methodologies of self-assessment, audit, and justification.

Only when human rights have direct meaning and domestic pull for U.S. political actors, local and national, will U.S. treaty body engagement policy shift in such a way that it matters in practice whether the U.S. is a “no show” or not. Until then, we need to work tirelessly to preserve and strengthen the credibility of supranational human rights systems like the IACHR for regional communities that can use them directly to make domestic change.


[Editors' Note:  This blog is the part of our symposium series on the Administration's failure to participate in the IACHR hearing on March 21.  The other postings, by Deborah Weissman, Sarah Paoletti, and JoAnn Kamuf Ward, respectively, are here, here and here.  Lauren Carasik and Margaret Drew comment here.  Rick Wilson's comments are here.]


March 26, 2017 in Global Human Rights | Permalink | Comments (0)

Friday, March 24, 2017

At the IACHR, Trump Administration Declines to Listen to Dakota Access Pipeline Opponents, Again

by Lauren Carasik

and Margaret Drew

 The Trump administration’s failure to appear at the Inter-American Commission hearings signaled a deep disrespect for the dignity and experiences of the people whose rights were the topic of discussion.  Many affected parties came to the hearings at considerable expense and inconvenience expecting, at a minimum, to present their grievances in a forum where the US would have to engage.  They arrived to find that the Trump administration had decided not to participate,ostensibly due to ongoing litigation, a decision communicated to the Commission the previous day though the hearings had been long scheduled. For those affected by the Dakota Access Pipeline, this is not the first time that the Trump team has acted with disrespect.  On February 7, Standing Rock Sioux Tribal Chairman Dave Archambault flew to Washington to meet with administration officials, expecting to share the Tribe’s concerns before the Army Corps of Engineers reached a final decision on the easement necessary to complete the pipeline. But he learned after deplaning that the decision had been made to issue the easement while he was en route to the meeting.  The issuance of the permit before the administration’s meeting with the Tribal Chairman laid bare that the planned discussion was intended for optics rather than substance, and signaled clearly to Archambault that even if he had been afforded the opportunity to be heard, his perspective would have been inconsequential and his time poorly spent. Such disdain has deep historical roots. The administration’s refusal to participate in the hearings is yet another brazen act of dismissing the voices of those harmed by its policies.  Even if Trump officials declined to comment on topics that are the subject of ongoing litigation, they could have respectfully shown up to listen. The administration’s absence deprived the speakers of a significant portion of the intended audience and conveyed the administration's indifference to their plight. But the hearings went on anyway, and thanks to activists and advocates who amplified the voices of the aggrieved, the casualty is neither their dignity nor their stories but the administration’s credibility and stature instead.

[Editors' Note:  This blog is part of our symposium series on the Administration's failure to participate in the IACHR hearing on March 21.  The other postings, by Deborah Weissman, Sarah Paoletti, and JoAnn Kamuf Ward, respectively, are here, here and here.  Tara Melish comments here, and Rick Wilson's comments are here.]


March 24, 2017 in Lauren Carasik | Permalink | Comments (0)

Does the Trump Administration Believe in the Rule of Law?

By guest contributor Johanna Kalb, Associate Professor of Law, Loyola University New Orleans College of Law and Fellow, Brennan Center for Justice at NYU School of Law

 On Tuesday, the Inter-American Commission on Human Rights (IACHR) met in Washington D.C. to conduct hearings on human rights issues in North and South America.  Created in 1959 to further respect for human rights in the Americas, the IACHR provides human rights education and technical assistance, investigates human rights violations, and hears cases brought by individuals and groups.  This week, the United States was among a number of countries, including Mexico, Chile, Honduras, and Nicaragua, with business before the IACHR.  But in a possibly unprecedented move, the U.S. government simply didn’t show up.

 One of the IACHR hearings focused on the Trump administration’s recent travel ban on citizens from six majority Muslim countries.  As news of its absence spread, the State Department justified its decision saying that it wouldn’t be appropriate to discuss matters subject to pending litigation in U.S. courts.  This explanation rang hollow, however, because other hearings involved issues that aren’t currently being litigated (like the case of the Japanese-Peruvian man who was forcibly removed from his family in Peru and interned by the U.S. government during World War II).  In addition, pending litigation didn’t stop either the George W. Bush or Obama Administrations from participating in hearings on Guantanamo, prison conditions, and immigration detention. Indeed, the State Department conceded that the U.S. wouldn’t accept this excuse from another country.

Given that earlier in the week the U.S. also declined to appear for a meeting with the U.N. Human Rights Council, many observers are worried that the U.S. is turning its back on its human rights commitments.  But there’s an even more troubling possibility – that the Trump Administration is turning its back on the rule of law.

Here at home, President Trump has repeatedly attacked the legitimacy of U.S. judges and courts that have ruled in ways he dislikes.  During the campaign, he made headlines by arguing that a federal judge of Mexican descent was biased against him.  Then he took to Twitter to attack the “so-called judge” in Washington state who enjoined the first version of the travel ban.  When a revised version of the travel ban was blocked again—this time by a federal district judge in Hawai’i— Trump mused to supporters in Tennessee about breaking up the Ninth Circuit (which includes both Hawai’i and Washington).    Even a public scolding from his Supreme Court nominee didn’t help.  Hours after Judge Gorsuch declared himself “disheartened” by Trump’s attacks on the judiciary, the president doubled-down at a fundraising dinner saying, “Somebody said I should not criticize judges. O.K., I’ll criticize judges.”

 It’s starting to look like a pattern.  When challenged to defend the legality of its policies, the Trump Administration instead tries to undermine the legitimacy of the court, either by attacking it or, as with the IACHR, by ignoring it. Domestically, this puts our democracy at risk by eroding public confidence in the fairness of our judiciary.  Internationally, the empty seats at the IACHR send the message that the U.S. isn’t that interested in human rights enforcement.   This is a terrible mistake.

One of this country’s founding principles, expressed succinctly in 1780 by John Adams, is that we are “a government of laws, and not of men.”  This is one of the pillars of the democratic model that the United States has, for decades, worked to promote around the world, recognizing that our country benefits from a global allegiance to the rule of the law.  Participation in the IACHR helps to underscore this commitment; so does the expression of respect for lawful (even if unfavorable) court orders.  By behaving in ways that undermine the rule of law domestically and internationally, the Trump administration is compromising our integrity and security.  We have to hope that the Trump Administration figures out quickly that protecting our core values is far more important than losing a case.

 [Editors' Note:  This blog is part of our symposium series on the Administration's failure to participate in the IACHR hearing on March 21.  The other postings, by Deborah Weissman, Sarah Paoletti, JoAnn Kamuf Ward, and Margaret Drew & Lauren Carasik, respectively, are here, here, here and here.  Tara Melish comments here, and Rick Wilson's comments are here]


March 24, 2017 | Permalink | Comments (0)

Thursday, March 23, 2017

This is What Hypocrisy Looks Like

by co-editor JoAnn Kamuf Ward, Human Rights Institute, Columbia Law School

This week saw further demonstrations of the Trump Administration's hostility towards the institutions designed to promote and protect our basic rights. As U.S. human rights advocates have noted, the failure of the US to show up to U.S. hearings at the Inter-American Commission marks a new low point for the U.S. relationship with human rights. These hearings were the first review of the US human rights record since Trump’s Inauguration, and the U.S. absence marks a sharp departure from the policy of engagement of recent Administrations, Democratic and Republican. And, while there is some indication that the U.S. absence is not a result of a specific policy of non-engagement, the overall picture for U.S. human rights accountability is increasingly bleak.

When asked about why the US chose not to appear for the three hearings focused on current and past U.S. policy, the State Department stated that the US has “tremendous respect for the role performed by the IACHR in safeguarding human rights and fundamental freedoms throughout the hemisphere, including the United States. However, it was not appropriate…for the United States to participate in these hearings while litigation on the matters was ongoing in U.S. courts.”

When pressed further as to whether the US would accept that explanation from another government who chose not to attend, the State Department representative went on to say “No, no”…but…we have our reasons.

So, what can we take away from these statements? First. the US might have some respect for human rights, under some circumstances. Second, the U.S. will hold other governments to a standard different than that applied to its own actions. So, there is the comforting thought that maybe, just maybe, things haven’t changed so much. Indeed, U..S exceptionalism in the realm of human rights is nothing new. U.S. rhetoric has never matched the U.S. reality. And, as noted on this blog earlier, U.S. participation at the Inter-American Commission has been repeatedly critiqued by human rights advocates.

Yet, the recent brazen acts of disregard for international institutions are an order of magnitude different, and a harbinger of more pernicious things to come. Earlier this month, Secretary Tillerson also chose not to show up for human rights. Tillerson failed to appear in person for the release of the United States’ annual human rights report (a comprehensive and powerful report, but one oft subject to criticism because it weighs in on the human rights record of every county other than the United States). The State Department literally phoned in their statement that human rights and democratic governance “form an essential foundation of stable, secure, and functioning societies,” signaling this is not a priority for the U.S.

But the State Department upped the ante by flouting Commission proceedings. The U.S. State Department chose to not to send representatives a few short blocks away to take a seat at the table at the Inter-American Commission. There was a calculation that it was not a priority to acknowledge the voices of civil society representatives, some who had traveled across the country at great personal hardship and others who have been waiting decades for redress, in order to discuss the toll that U.S. policy, past and present, has taken on their lives and communities, as well as to seek a response.

Take 86 year-old Isamu Carlos Arturo Shibayama, who testified in his case seeking a remedy for the forced removal of his family from Peru in 1944, as part of a U.S Program to relocate over 2,000 individuals of Japanese descent from Latin America and imprison them in the U.S., with the stated purpose of “securing” the Southern U.S. border. The United States stripped these individuals of documentation, declaring them “illegal aliens” and also used some of the detainees in hostage exchanges with the Japanese government. Yet, the Shibayama family never received adequate redress in U.S. courts. (Note too: The only explanation that was given publicly for the US failure to appear: that the U.S. did not participate due to pending litigation, doesn’t hold water for the Shibayama case hearing, which did not address issues subject to litigation). Also testifying was Maru Mora Villalpando, of the Northwestern Detention Center Resistance, who spoke passionately about the human impacts of the new Administration’s focus on privatization of immigration detention centers and the increase in immigration enforcement on immigrant and undocumented communities.

Ms. Villalpando noted that “the absence of the State today, after nearly 20 years of continuous presence at this table, is a symbol of the deterioration of U.S. democracy and the international leadership the U.S. claimed to have.” I must agree.

Democracy thrives on civil debate, on the exchange of ideas. Yet, we have entered a time when the governing Administration of the United States disavows the obligation to exchange ideas or even defend its policies – in international fora or otherwise. This week’s actions by the State Department occur at a time when U.S. rights-defenders, including judges, civil servants, and community leaders are increasingly ridiculed, harassed, and detained.

Of course, the mounting effort to undermine the sanctity of the institutions that protect democracy and promote dialogue is happening not only in the U.S., but across the Americas. Through its refusal to participate in the Inter-American hearings this week, the U.S. stands alongside Cuba and Nicaragua. Venezuela and the Dominican Republic, too, have track records of non-participation. Two years ago, I would have said these countries seem like strange bedfellows for the U.S. Now, I am not so sure. But, what I am sure of is that we must continue to fight for government accountability, and against government hypocrisy. And, further, that U.S. advocates engaging in this struggle would benefit from stronger alliances across the Americas. We must work together to ensure that civil society has the space to dissent and to challenge laws and policies that violate human rights at domestic, regional, and international levels.

{Editors' Note:  This is the third article in this week's series on the Administration's failure to participate in the IACHR hearing on March 21.  The other postings, by Deborah Weissman, Sarah Paoletti, Johanna Kalb, and Margaret Drew & Lauren Carasik, respectively, are here, here, here and here.  Tara Melish comments here, and Rick Wilson's comments are here. ]

March 23, 2017 | Permalink | Comments (0)

Wednesday, March 22, 2017

A “No Show” at the IACHR: A Portentous Absence

by guest contributor Deborah M. Weissman, Reef C. Ivey II Distinguished Professor of Law, UNC School of Law

The failure of the United States government to appear at a scheduled hearing before the Inter-American Commission on Human Rights (IACHR) on March 21, 2017 represents an unprecedented rejection of the regional mechanisms established to protect human rights.  The agenda for the meeting of the regional human rights body included a review of the recent controversial U.S. presidential executive orders related to travel and immigration, as well as the U.S. administration’s approval of the Dakota Access Pipeline.  The hearings proceeded but not without grave concerns about the future of meaningful collective commitments to the realization of human rights protections.

The IACHR has been foundational to efforts to “Bring Human Rights Home.”  Law school clinical programs and experiential courses that have sought to advance domestic human rights legal advocacy have benefited from the IACHR’s structure, location, and manageable processes.  From a pedagogical perspective, the feasibility of raising human rights claims before a well-respected human rights body close to home has provided an opportunity to teach against U.S. exceptionalism and to encourage students to reach beyond U.S. courts that have increasingly closed their doors to civil rights abuses which can and should be properly categorized as human rights violations. 

We teach our students that human rights norms must be realized in practice.  We struggle against cynicism and point to the principles of the Organization of American States (OAS) which established the IACHR as its  “principal and autonomous organ… whose mission is to promote and protect human rights in the American hemisphere.” We lecture about the constitutional texts of a regional system that claims to rest on the pillars of democracy, human rights, security, and development.  Our students are engaged in cases and projects that seek repair and reparations for victims of egregious abuse.

The IACHR is an entity designed to promotes dialogue between and among member states, aggrieved persons, community groups, and their advocates yet such opportunities were foreclosed by the failure of U.S. officials to attend the hearing.  Spokespersons for the Trump administration claimed that on-going litigation with regard to some of the Executive Orders made their appearance ill-advised.  But as human rights leaders and IACHR Commissioners observed, the IACHR panel hearing was an opportunity for the government to engage in a discussion, explain their point of view, and engage in a “democratic exchange of opposing views.”  The U.S.justification for its non-appearance is suspect; it comes on the heels of its talk of backing away from the UN Human Rights Council.  In fact, previous administrations have appeared during times of contention and domestic litigation over alleged human rights abuse.

U.S. participation in the IACHR is essential to our ability to seek redress for victims of human rights violations.  For law students hoping to contribute to human rights law through the use of the IACHR as a means to increase awareness of human rights violations throughout the Western Hemisphere, and for law professors who endeavor to encourage and inspire such work by pointing to the Commission as an entity where such gains may be made, the failure of the administration to attend bodes ill for human rights law and human dignity.

[Editors' Note:  This post is part of a series on the US absence from the IACHR hearing on March 21, 2017.  The initial post, by Professor Sarah Paoletti, is here, and the next in the series, by JoAnn Kamuf Ward, is here.  Professor Johanna Kabl comments here and commentary from Margaret Drew and Lauren Carasik is here.]

March 22, 2017 | Permalink | Comments (0)

Tuesday, March 21, 2017

No Excuse for US Refusal to Attend InterAmerican Commission Hearing

by guest author Sarah Paoletti, Penn Law


The Inter-American Commission on Human Rights’ 161st Period of Sessions – which concluded with hearings on the United States – will be marked by the unprecedented failure of the United States government to appear.  Apparently, the Commission received notice from the US Department of State on Monday, March 21st, that it would likely not attend the hearings scheduled for the next day. 

The US government’s absence was a noted contrast from the Obama Administration’s engagement with the Commission.  Then, the government showed up, and often showed up in force – with representation from the Department of Justice, and other federal agencies implicated by the petition, or with oversight responsibility over the rights at issue.  The Obama Administration took seriously as part of its foreign policy agenda a demonstration of the importance of robust civil society engagement.  Advocates were not without their critiques of the Obama Administration’s participation in Commission’s hearings, especially when representatives made their oft-repeated statements that they did not recognize the Commission’s interpretation of international law or recommendations as binding, or provided testimony that highlighted the disconnect between rights rhetoric and reality, but the government showed up.  They sat and listened while they were critiqued, and answered questions posed to them, as a demonstration for their respect for the Commission and its role in protecting and promoting human rights across the region (even, if not always within the United States).  Jamil Dakwar, Director of the ACLU’s Human Rights Program, noted: “This is another worrying sign that the Trump Administration is not only launching an assault on human rights at home but is also trying to undermine international bodies charged with holding abusive governments accountable.”

In response to a media inquiry, a spokesman for the US Department of State said the U.S. had “tremendous respect” for the IACHR, and excused its absence, saying, “It is not appropriate for the United States to participate in these hearings while litigation on these matters is ongoing in U.S. courts.”  But the first hearing of the day was a merits hearing on behalf of a Japanese-Peruvian who had been interned by the United States government during the period of Japanese internment – where the Commission had already ruled on admissibility, evidencing exhaustion of domestic remedies and no pending litigation.  Another hearing raised issues of U.S. policies and practices that serve to deny migrants access to asylum, issues that predate the Trump Administration.  The other hearing was brought by the Commission to address the recent Executive Orders and DHS Policy Memos.  Certainly, the Executive Order implementing a ban on entry of individuals from 6 Muslim-majority countries and suspending all refugee admissions are subject to litigation, but while some measures taken under the guise of national security are the subject of active litigation, other elements are not. Also at issue was Trump’s Executive Order that allowed drilling to move forward on the Dakota pipeline.  In the past, though, where there has been pending litigation, the U.S. has still showed up.  The government representatives would simply decline comment on specific questions that directly implicated pending litigation.

The government’s absence was noted with dismay by the Commissioners and the advocates present, as well as those watching from afar.  The fear is that the U.S. government’s failure to show is emblematic of its disregard for human rights, and specifically the rights of migrants, environmental and indigenous rights, and its disrespect for international human rights institutions.  And one is left wondering, would it have been worse if the US had appeared?

[Editors' Note:  This post is the first in a series of perspectives on the US government's failure to participate in the IACHR hearing on Tuesday, March 21.  The second post, from Professor Deborah Weissman, is here.  The third post, from JoAnn Kamuf Ward, is here.  Professor Johanna Kalb comments here and commentary from Margaret Drew and Lauren Carasik is here.  Tara Melish comments here, and Rick Wilson's comments are here.]

March 21, 2017 in Global Human Rights | Permalink | Comments (3)

Monday, March 20, 2017

Judge Gorsuch and Women

Over the course of the past few weeks, women's organizations have reviewed Judge Gorsuch's record  in an attempt to determine his understanding of the myriad legal issues women face.  Judge Gorsuch by and large has not appreciated the difficulties of women's lives and how laws and policies can have a disparate impact on them. 

The National Association of Women Lawyers found Judge Gorsuch to be "not qualified" on women's issues.  The organization's Supreme Court Committee members, of which the author is one, review candidates' opinions and other writings and conduct interviews with a wide number of people who have interacted with the candidate in various capacities.  While the committee found that Judge Gorsuch generally treated litigants and lawyers with respect, and that he has the intellectual capacity for the position, his record on issues important to women displays a lack of understanding.  In a press release containing the committee's findings, the committee noted concerns around the Judge's giving religious freedom rights deference over women's reproductive rights.  Likewise, the committee noted "Judge Gorsuch's writing also exhibits a reluctance to recognize precedent that applies substantive due process to protect the rights of women."  The committee further noted concern in other areas, including his failure to recognize transgender women as women thus denying them rights that are afforded to other women.

The National Women's Law Center also issued their report on Judge Gorsuch.  Concerned with Judge Gorsuch's lack of support for regulatory authorities, the Center's press release stated:  "Judge Gorsuch has explicitly praised Justice Scalia's approach to the law. While he has not opined on Roe v. Wade, he voted to override a woman's coverage of contraception if her boss objected. Justice Scalia was highly skeptical that courts should defer to the interpretations of laws by expert government agencies - and Judge Gorsuch would go even further, making it harder for agencies to implement the laws that have literally opened doors of opportunity for women and girls."

March 20, 2017 in Gender, Gender Oppression, LGBT, Reproductive Rights | Permalink | Comments (0)

Sunday, March 19, 2017

Judge Gorsuch on Foreign and International Law

Earlier this month, the Congressional Research Service published its comprehensive analysis of Judge Neil Gorsuch's judicial record.  Readers of this blog will be particularly interested in his perspective on the citation of foreign and international law, an issue that has been a flashpoint for recent Supreme Court nominees. 

As the CRS report points out, Justice Scalia, whose seat Gorsuch would fill, was outspoken in his opposition to looking at comparative jurisprudence -- or at least, his opposition to citing such comparative material.  In contrast, the CRS survey finds that Judge Gorsuch has not had much occasion to address this issue in his time on the 10th Circuit Court of Appeals.  Footnote 665 of the CRS analysis cites three cases involving international law in which Judge Gorsuch has been involved.  Perhaps the most notable of these is Habyarimana v. Kagame, in which the widows of two murdered African heads of state charged Rwandan President Paul Kagame with their deaths under the Alien Tort Statute and the Torture Act.  Judge Gorsuch was part of the panel, not the author of the opinion, but the panel agreed with the US government's amicus submission that head-of-state immunity shielded Kagame from the suit. 

In a more run-of-the-mill case of the type that even Justice Scalia would find warrants citation to treaty law, Judge Gorsuch wrote the opinion in U.S. v. Jolivet, construing a treaty between the U.S. and Canada concerning transfer of prisoners.  Judge Gorsuch relied on prior circuit precedent as well as the wording of the relevant treaty to determine that the law of the country receiving the transfer governs the length of the remaining sentence of imprisonment.

Given that Justices Kagan, Breyer, Kennedy, Sotomayor and Ginsburg have all stated that there is an appropriate role for foreign and international citation in Supreme Court jurisprudence, the addition of a new justice to the Court will not alter the majority position.  But watch for this issue to come up in Judge Gorsuch's hearings as advocates review not only the nominee we have now, but anticipate the possibility of future Court openings with nominees who espouse the judicial version of President Trump's isolationist policies. 

March 19, 2017 | Permalink | Comments (0)

Thursday, March 16, 2017

"It is Our Choices that Show What We Truly Are"

Feminists are not the only ones using social media to organize for human rights.  A new study of the Harry Potter Alliance delves into the ways in which youth (and other Harry Potter fans) are using alternative approaches to organizing for human rights. Founded in 2005, the HPA has engaged in activism ranging from voter registration drives to campaigns for corporate responsibility.  The HPA and other examples of fan activism are analyzed in the new book Cultural Jamming: Activism and the Art of Cultural Resistance.  As Henry Jenkins and his co-authors note in their insightful review of the book, "[p]inning political and social causes to Harry Potter works because this content world has a large following, is familiar to an even larger number of people, has its own built-in mechanisms for generating publicity, and is apt to attract many subsequent waves of media interest. Harry Potter constitutes a form of cultural currency that channels fans’ emotional investments and wider public interest in ways that can carry HPA’s messages to many who would not otherwise hear them."

With human rights under attack domestically and internationally, J.K. Rowling, the author of the Harry Potter series and an activist in her own right, has spoken out repeatedly.  It's reassuring to know that she is backed up by a growing Dumbledore's army of youth activists in the HPA. 


March 16, 2017 | Permalink | Comments (0)

Wednesday, March 15, 2017

Saying No to Normalization of the Lie

The exposure of lies and the witnessing of truth are in the hands of the Fourth Estate. The press made Donald Trump president by covering candidate Trump as if he had credibility.  During the campaign, there were days when even the NY Times front page was 95% Trump's sensationalism with one below the fold news item on the Clinton campaign.  Major speeches by our first female presidential candidate were virtually unreported  because they addressed serious issues facing the country, and were not scripts from the theater of the absurd.

Now is the time for the press to sober up.  Rather than covering the sensational, the press must revert to its traditional role of searching for truth. 

Foreshadowing the age of Trump,  aggressive truth finding journalism, such as Woodward and Bernstein's Watergate expose′ and the more recent "Spotlight" investigation into sexual abuse by Catholic priests, fell largely out of fashion.  The Fourth Estate succumbed to the lull, where they reported on and thereby promoted the low hanging fruit of the Trump outrageous. 

Olivia Ward, Canadian journalist, this week traced the rise of Trump through the implicit rise in media's collaboration with the promotion of "alternative fact" reporting.  Serious journalism gave way to entertainment.  Propelled by social media, the press forgot their obligation to demand the truth, until the unthinkable happened with the Trump presidency.

In a recent speech, Ms. Ward traced the history of media decline and set out a map for the press to regain its credibility.  This talk is more than worth the read.  One of the charges Ms. Ward gives to journalists is to cover the protests, but in particular cover local resistance.  If the resistance is not covered by the press, then the danger becomes that alternate facts become absolute truth.

When that happens, human rights will  be irrelevant in the style of Putin.

March 15, 2017 in Margaret Drew | Permalink | Comments (0)

Tuesday, March 14, 2017

Human Rights Innovation Fellowship -- March 15 Deadline!

For the second year, the Unitarian Universalist Service Committee is offering a UUSC Innovation Fellowship.  Application deadline is March 15.  More information is available here.  A few basics are below:

What is the UUSC Human Rights Innovation Fellowship?

The UUSC Human Rights Innovation Fellowship is a one-year $25,000 grant, awarded to individuals or organizations, designed bring about systemic change by creating, nurturing, or spreading an innovation in the areas of UUSC’s work. These innovations may be technological or financial products or apps, pathbreaking applied research, advances in corporate accountability, legal arguments, methods of mobilization, or methods of community outreach.

What is the theme for 2017 fellowship?

The theme for the 2017 fellowship is climate forced migration. The fellowship should address a major challenge facing individuals and/or communities who are being displaced by climate change. In particular, it should contribute to UUSC’s goals to: (i) organize and build the advocacy capacity of local and other regional civil society organizations around climate forced migration and human rights and (ii) assist communities to migrate with dignity.

March 14, 2017 | Permalink | Comments (0)

Monday, March 13, 2017

UN expert finds flawed consultation process for Dakota Access Pipeline

by Lauren Carasik


On March 3, Victoria Tauli-Corpuz, the UN Special Rapporteur on the rights of indigenous peoples, issued an End of Mission Statement, following her 10 day visit to the US to study the human rights situation the nation’s indigenous peoples, with a focus on energy development projects. She lamented the failure of the government to engage in meaningful consultations with tribes, concluding that "The legislative regime regulating consultation, while well intentioned, has failed to ensure effective and informed consultations with tribal governments. The breakdown of communication and lack of good faith in the review of federal projects leaves tribal governments unable to participate in dialogue with the United States on projects affecting their lands, territories, and resources."

The UN expert singled out the flawed process with respect to the Dakota Access Pipeline:

“Many indigenous peoples in the United States perceive a general lack of consideration of the future impacts on their lands in approving extractive industry projects in particular, and a lack of recognition that they face significant impacts from development of not just their own, but neighbouring resources as well. In the context of the Dakota Access Pipeline, the potentially affected tribes were denied access to information and excluded from consultations at the planning stage of the project. Furthermore, in a show of disregard for treaties and the federal trust responsibility, the Army Corps approved a draft environmental assessment regarding the pipeline that ignored the interests of the tribe… Although the final environmental assessment recognized the presence of the Standing Rock Sioux Tribe five hundred meters away, it dismissed the risks to the reservation and failed to mention any of the other tribes that traditionally used the territory. Without an adequate social, cultural or environmental assessment, and the absence of meaningful consultation with or participation by the tribes, the Corps gave multiple domestic authorizations permitting the construction of DAPL.”

While she did recognize some positive steps towards indigenous sovereignty and self-determination, Tauli-Corpuz expressed deep concern over President Trump’s executive actions on the Dakota Access and Keystone XL pipelines, and recommended “that for any extractive industry project affecting indigenous peoples, regardless of the status of the land, the United States should require a full environmental impact assessment of the project in consideration of the impact on indigenous peoples’ rights.”

In order to move forward, the UN expert emphasized the need for reconciliation:

“The issues surrounding energy development underscore the need for reconciliation with indigenous peoples in the United States. Tribal leaders and representatives indicate that they are interested in engaging in a program of reconciliation to remedy the harms they have faced and improve the government-to-government relationship going forward. Such a program would acknowledge the historical wrongs inflicted upon indigenous peoples in the United States and confront systemic barriers that prevent the full realization of indigenous peoples' rights.”

March 13, 2017 in Environment, Indigenous People, Lauren Carasik | Permalink | Comments (0)

Sunday, March 12, 2017

Human Rights Lawyer Paul Hoffman To Be Honored


Prof. Francisco Rivera contributes this piece.

Paul Hoffman, one of the leading human rights lawyers in the United States who has successfully litigated to hold human rights violators accountable, to reduce unlawful police or government surveillance, and to protect freedom of expression, is the 2017 recipient of the Katharine & George Alexander Law Prize from Santa Clara Law.

The award will be presented at a ceremony on March 20th at Santa Clara University’s Adobe Lodge, 500 El Camino Real, Santa Clara, California. 

Paul Hoffman has been involved in many of the most important cases brought under the Alien Tort Image1Statute (“ATS”), including the cases brought against Ferdinand Marcos and against corporate defendants including Exxon, Chevron, IBM, Ford, and many others. He argued the Sosa v Alvarzez-Machain and Kiobel v Royal Dutch Petroleum cases in the U.S. Supreme Court. He has argued ATS cases in the D.C., Second, Fifth, Seventh, Ninth and Eleventh Circuits and in many District Courts.

From 1984 to 1994, Paul was the Legal Direction of the ACLU Foundation of Southern California. He was lead counsel in Coalition Against Police Abuse v. Board of Police Commissioners, which challenged unlawful surveillance of community activists by the Los Angeles Police Department, and in Wilkinson v. FBI (a challenge to the FBI’s COINTELPRO operation against the National Committee to Abolish HUAC). In 1984, he received the Clarence Darrow Award for outstanding First Amendment advocacy for my work in the police spying cases.

Since 1994, he has been in private practice, and since 1999 he has been a partner in Schonbrun Seplow Harris & Hoffman, LLP. His practice focuses on constitutional and civil rights litigation, including First Amendment, discrimination and privacy litigation, civil and criminal appeals anad international human rights litigtion. He has been named one of the 100 most influential attorneys in California by the Daily Journal.

Paul was an Associate Professor at Southwestern University School of Law Los Angeles, California from August 1981 to July 1984, where he was also the Co-Director (with Stanley Fleishman) of a clinical program on the rights of the disabled and elderly. He is currently the Director of the International Human Rights Litigation Clinic at UC Irvine School of Law where he also teaches in the Civil Rights Litigation and Appellate Litigation Clinics. In the past, he has taught as an Adjunct Professor at Stanford Law School, UCLA School of Law, USC Law School, Loyola Law School, and Southwestern University School of Law.

He has long been active in Amnesty International, including serving as the Chair of Amnesty International-USA’s Board twice and serving as the Chair of AI’s International Executive Committee from 2002-2004. He is also the co-founder of the Center for Justice and Accountability.

He is the author of numerous articles on civil and human rights subjects and is the co-author of an International Human Rights casebook. He has appeared at dozens of conferences on civil and human rights topics over the years.

He is a 1976 graduate of New York University School of Law and received a M.S. degree in 1973 from The London School of Economics and Political Science. He received his B.A. from the City College of New York in 1972.

The Katharine and George Alexander Law Prize, an annual award and monetary prize presented by Santa Clara Law, recognizes a member of the legal community who has used his or her skills, knowledge, and abilities to correct an injustice in a significant manner. The hope of the donors is that the Prize will not only give the public a higher regard for the legal profession but will also be an inspiration within the legal profession and a recognition of the good work of so many. Selection criteria include the innovative nature and sustainability of the programs the individual has implemented, the courage and self-sacrifice required, the number of people benefited, and any other indications that the recipient is committed in both heart and mind to alleviating injustice and inequity. For more information on present and past winners, or to nominate someone for a future prize, see here.


  • 2016: Maria Foscarinis, founder and executive director of the National Law Center on Homelessness & Poverty.
  • 2015: Martina E. Vandenberg, founder and president of The Human Trafficking Pro Bono Legal Center.
  • 2014: Hossam Bahgat, founder and former executive director of the Egyptian Initiative for Personal Rights.
  • 2013: Chen Guangcheng, Chinese civil rights lawyer and activist who fought for women’s rights in rural China.
  • 2012: Almudena Bernabeu, attorney with The Center for Justice & Accountability, a nonprofit human rights law firm based in San Francisco.
  • 2011: Paul Van Zyl, former executive secretary of South Africa’s Truth and Reconciliation Commission, co-founder of the International Center for Transitional Justice, and CEO of PeaceVentures.
  • 2010: Shadi Sadr, Iranian lawyer who launched the “End Stoning Forever” campaign as well as a legal center for women called Raahi.
  • 2009: Mario Joseph, human rights lawyer in Haiti and managing attorney of the Bureau des Avocats Internationaux.
  • 2008: Bryan Stevenson, founder and executive director of the Equal Justice Initiative in Alabama.

If you are interested in attending, you may register here.

March 12, 2017 | Permalink | Comments (0)

Thursday, March 9, 2017

Standing Up for the Human Right to Health

The National Economic and Social Rights Initiative (NESRI), long-time advocate for the human right to health, has published a succinct analysis of the Republican health care proposal currently pending in Congress.  According to NESRI, the proposal would give $480 billion in tax cuts to the wealthy and to corporations, and would slash Medicaid by $560 billion over the next ten years.  The result, NESRI concludes, would hurt the poor and the sick, single out women for special health care denials, and deepen economic inequity.

Representative Joe Kennedy (D-MA) has been in the thick of the House of Representatives' debate, calling out the flaws apparent in a plan that, among other things, would deny mental health coverage to 1.3 million Americans.  Earlier today, Kennedy wrote this message on his Facebook page: 

"[T]his is about more than mercy, it is about common decency. Because there is nothing more universally human than the stubborn truth that fortunes change. That no one among us is immune to illness or addiction or bad luck or real loss. So we fortify a system of shared protections that are deep and strong enough to catch any brother or sister who falls. Shame on those who take that protection for granted."

And Kennedy says, "Head over to my Facebook page and share if you believe that healthcare is a human right!"


March 9, 2017 | Permalink | Comments (0)

Wednesday, March 8, 2017

For International Women's Day: More Support for CEDAW

On February 27, Red Wing, Minnesota became the 4th Minnesota city to join Cities for CEDAW.  The other Minnesota CEDAW cities are Minneapolis, St. Paul, and Edina.  The local chapter of the American Association of University Women was a key mover behind the Red Wing City Council resolution, and Ellen Kennedy, executive director of the nonprofit organization A World Without Genocide, has been leading efforts throughout Minnesota to encourage cities (and the state) to pass resolutions in support of CEDAW.  According to Kennedy, the Minnesota Nurses Association, representing 21,000 nurses, also passed a resolution of support, as did the Minnesota State Bar Association (17,500 attorneys).    

Next up:  New York City?  The organizing at NYC4CEDAW has begun, with the aim of passing a local women's rights ordinance in 2017!

March 8, 2017 | Permalink | Comments (0)