Thursday, September 28, 2017
The actions of African American football players kneeling during the national anthem had been noticed, but not so controversial, prior to Number 45's tweet. But post-tweet, "taking a knee" has become just another tool to divide the country along racial lines. Like it has for others who avoid examination and exploration of truth,use of diversionary tactics has been wildly successful for 45. But in this instance,
backlash has been swift. Football owners and players have "taken the knee" after the President angrily demanded that any football player who kneels should be fired.
Georgetown Law Center students and faculty joined the kneeling protests. Last week, Attorney General Sessions traveled down the road to Georgetown Law Center to extol the virtues of free speech and condemn its "attack" on campuses. Session remarked: “There are many ways these players, and all the assets that they have, can express their political views other than in effect denigrating the symbols of our nation, the nation that’s provided our freedom to speak and act,” Sessions said. Those resisting equality claim that free speech is supported by our constitution and it is just this form of protest that is inappropriate, or - the protest is unwarranted or premature (choose your descriptor). During the Obama campaign, and again during Hillary Clinton's, we heard "the country isn't "ready" for an African American, a woman (choose your noun). It is always the timing or tactic that is wrong. But that reasoning is hollow.
I was a Viet Nam war protester. At the time, I was uncomfortable with flag burning. I am not sure how I would respond today. I knew that the flag (and draft card) burning kept the anti-war issues in the public dialogue and the resulting court cases reaffirmed first amendment rights. And sometimes it is a violent act that wakes up resisters. But I saw, also, how flag burning created the diversion pro-war people relished. For those less willing to hear the protesters' reasons for their demonstrations, focusing on flag burning provided an effective rationale for not addressing the flawed underpinnings of the war.
Taking a knee is respectful protest. Kneeling is effective, as demonstrated by the response of teammates and owners. Kneeling incorporates the spiritual into the protest, giving it a level of credibility not seen in other forms of protest. Kneeling induces silence, making the protest more powerful.
Focusing on claimed disrespect to the flag is the diversion that will prevent many whites from considering the underlying reason for protest. The president couldn't care less about kneeling football players. He cares that the nation remains divided. Therein lies his power. And his demagoguery.
Wednesday, September 27, 2017
After you attend the Childress Conference in St. Louis, as posted yesterday, travel on to the University of Cincinnati Law School where the Urban Morgan Institute will host the Sir Nigel Rodney Human Rights Conference on October 28-29th. Information on the school website indicates that the conference is in honor of the late Sir Nigel Rodley and is hosted by the Urban Morgan Institute, and co-sponsored by by Paul Hoffman and Professor Bert Lockwood, director of the institute. The conference will focus on the contributions of Sir Nigel to human rights and the challenges currently face by the international human rights community.
For registration information click here.
Information regarding the conference is posted on Int Law Grrls, as well.
Tuesday, September 26, 2017
The St. Louis University School of Law will hold its 2017 Richard J. Childress Lecture and accompanying Symposium on Friday, October 13, 2017, titled Human Rights in the American Criminal Justice System. More information is available here.
The keynote address for the Symposium, The Death Penalty, Public Opinion, and Politics in the United States, will be presented by Samuel R. Gross, Professor of Law at the University of Michigan. Several contributors to this blog -- Margaret Drew, Lauren Bartlett and Martha Davis, will speak on a panel about integrating human rights into domestic legal practice.
As described by the organizers, "[t]his symposium will examine the role, rhetoric, and practices of the United States’ criminal justice system using international human rights norms as perspective. The symposium will bring together practitioners and academics focused both domestically and internationally. Our panelists will speak about how the modern criminal justice system in the United States – whether it is pretrial detention, treatment of gender violence or juvenile populations, or the continued use of the death penalty - conform to or violate international human rights standards, and what can be done to change that. We want our students to connect with members of the wider legal community advocating for the use of human rights standards, and look forward to the conversation."
The free event will take place from 9 a.m. to 4 p.m. Friday, Oct. 13, in the Pruellage Courtroom of Scott Hall at the St. Louis University School of Law.
Monday, September 25, 2017
Keep the Cameras Rolling: Photographers Lose in Challenge over Refusal to Service Same-Sex Weddings under Minnesota’s Human Rights Act
Last week, a federal district court in Minnesota ruled against plaintiffs Carl and Angel Larsen, and their videography company, TMG, in their suit against Lori Swanson, Minnesota’s Attorney General and Kevin Lindsey, the commissioner of Minnesota’s Department of Human Rights. In Telescope Media Group, Inc. v. Lindsey, the plaintiffs had lodged a “pre-enforcement challenge” to the prohibition on sexual orientation discrimination under the Minnesota’s Human Rights Act (“MHRA”). The plaintiff couple had goals to expand their company into the wedding video industry with a specific purpose of using their wedding video services to express their opposition to same-sex marriages and reify the Christian belief in opposite-sex marriages. To effectuate their goals, they intended not to produce wedding videos of same-sex couples and also intended to post a message on TMG’s website explicitly denying service to same-sex weddings. That posting would have violated Minnesota’s Human Rights Act with civil penalties up to $25,000. In addition, Minnesota legislatively recognized same-sex marriages in 2013. Hence, their challenge arose.
Because the plaintiffs had yet to produce wedding videos and actively discriminate against same-sex couples, justiciability issues were raised. But for the most part, the district court dismissed those challenges by the defendants and ventured into the merits of the plaintiffs’ claims, which were based under a constitutional free speech, right of association, religious exercise, unconstitutional conditions, equal protection, and due process arguments.
The challenges under the First Amendment were untenable. For the free speech argument, the court ruled that the MHRA was a content-neutral regulation and did not violate the plaintiffs’ free speech rights under intermediate scrutiny. The court also found that the plaintiffs had not shown a viable claim under the compelled speech doctrine. Furthermore, the court pronounced that the plaintiffs’ textual challenge against the MHRA for terms that they claimed would lead to unbridled enforcement discretion was not credible. For the right of association arguments, the court quickly dismissed the notion that the MHRA inhibited the plaintiffs’ right to expressive association to an extent that would be constitutionally dangerous. The court also dismissed the plaintiffs’ religious exercise challenge by noting that the MHRA was a regulation of general applicability. Lastly, the plaintiffs’ attempt to restate their First Amendment claims under an unconstitutional conditions argument was seen as merely repackaging what the court already had not favored.
Under the Fourteenth Amendment, the plaintiffs’ equal protection and due process arguments also crumbled—mostly because of unsustainable characterizations of their status or similar repackaging of their free speech arguments.
Already, the most well-noted excerpt of the ruling has been Chief Judge John Tunheim’s analogy that the plaintiffs’ desire to turn down same-sex clients by posting such a disclaimer on their website was “conduct akin to a ‘White Applicants Only’ sign.” No doubt, this lawsuit is likely to be appealed. The plaintiffs’ attorneys, from Alliance Defending Freedom, are part of same team representing the wedding cake maker in Masterpiece Cakeshop v. Colorado Civil Rights Commission, to be argued at SCOTUS this fall. That case involved a professional wedding cake provider’s refusal of business to same-sex couples.
Post-Obergefell, after the extension of marriage to same-sex couples, these cases present an interesting moment for sexual orientation antidiscrimination as the leveraging for full equality by LGBTQ individuals is occurring not only against First Amendment religious exercise arguments but also—now more fully it seems than before—within free speech challenges as well. I write this not because such challenges weren’t previously couched in free speech theories, but because of the recent headline resurgence of free speech controversies. At the same time, the national debate on free speech is taking place on campuses and elsewhere in the media, these cases are quickly being cemented into the larger national dialogue—sometimes violent—over identity, our collective history, and ultimately our national values. Free speech is being used to prop up a reality that does not comport with democratic principles of liberalism and respect for human rights. Rather, free speech is being used to reinforce a world of hierarchy stoked by false nostalgia and collective insecurity.
Not to mention, the vindication of the MHRA in favor of same-sex marriages and weddings in Telescope Media Group, Inc. v. Lindsey has historical resonance for LGBTQ rights. Minnesota was where one of the earliest episodes of the struggle for marriage equality took place. In 1970, two gay students from the University of Minnesota, Richard Baker and James McConnell, applied for a marriage license in Minneapolis. After their application was denied, they sued. Their litigative failures, from state to federal courts, unfolded all the way to SCOTUS where the Court in 1972 summarily dismissed their suit, Baker v. Nelson, with just one line: “The case is dismissed for want of a substantial federal question.”
Whatever outcomes are ahead, I don’t think we’re in one-liner territory anymore.
You may read the judgment here.
Sunday, September 24, 2017
The consolidated cases challenging the Trump Administration's Executive Order imposing a "travel ban" -- Trump v. Hawaii, and Trump v. International Refugee Committee -- were set for oral argument in the Supreme Court on October 10. [Eds Note: The argument has now been taken off of the calendar for further briefing on whether the case is moot in light of the revised travel ban.]
Many of the many amicus briefs cite international human rights law in passing, since the Executive Order restricts entry of refugees along with other immigrants and US refugee law incorporates the standards of the UN Refugee Convention. However, two of the briefs go into greater detail regarding applicable human rights norms and international agreements and expectations.
First, the brief of Human Rights First, et al., hones in on the refugee issue, identifying the practical, negative, impacts of the travel ban on the international expectations regarding refugee reception. According to the brief, the travel ban is "needless" because of the extensive vetting and screening already applied to these groups. And "the ban jeopardizes the stability of U.S. allies, erodes essential good will by reneging on promises made to certain refugee groups, makes it more difficult for the United States to recruit heart-and-minds support abroad, otherwise undermines the ability of the United States to pursue military operations, and endangers U.S. military personnel." Further, to the extent the ban is viewed abroad as a "Muslim ban," it "feeds into the propaganda narrative of terrorists seeking to harm U.S. interests."
Second, the brief on behalf of International Law Scholars and Non-Governmental Organizations invokes the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination to argue that the ban's religious and national origin discrimination violate international obligations. According to the brief, "[s]uch distinctions violate international human rights law binding on the United States whenever they have either the purpose or effect of disadvantaging a group on the prohibited grounds." Arguing that the relevant treaties have domestic effect even if they are non-self-executing, the amici cite the Charming Betsy doctrine to assert that the Supreme Court "should continue to construe the relevant provisions of the U.S. Constitution and applicable statutes in a manner that does not put the United States in violation of obligations under international human rights law and, as such, consider U.S. obligations under international law, which forms part
of U.S. law, in evaluating the legality of the EO."
Thursday, September 21, 2017
Prof. Anne Hornsby of the University of Alabama School of Law introduces us to a You Tube video designed to inform non-immigration lawyers to representation of young people struggling with DACA status. As Anne explains:
Wednesday, September 20, 2017
Jena Martin of West Virginia College of Law has posted a fascinating new article titled Hiding in the Light: The Misuse of Disclosure to Advance the Business and Human Rights Agenda. Here's the abstract:
"The aim of this article is to analyze whether the business and human rights agenda (as embodied by the Three Pillar Framework and UN Guiding Principles) is well served with national laws that focus on disclosure. The article will focus primarily on rules being implemented in the United States at both the subnational and national level, however, it will also discuss approaches being used in European jurisdictions such as the United Kingdom and France and the overall trend towards a transparency model for human rights protection from business activities. The increased use of disclosure-based regulation (and the resulting compliance efforts by corporations) seems to come, at least in part, as a result of the efforts by States to address the duties laid out for them in the UN Guiding Principles. As such, it seems appropriate to undertake an analysis regarding whether these laws are in fact effective at implementing the Guiding Principles.
For decades now, disclosure has been held out as the ultimate curative for every corporate woe. The expansion of disclosure initiatives from mere investment related issues to increasingly social policy issues would indicate that this trend will continue. Yet as this article demonstrates, disclosure right now is, at best a temporary stop gap measure that can lead to limited corporate change on the issue of business and human rights. At worst, disclosure is being used by corporations as a way to obtain a reputational advantage without actually making substantive changes – by simply hiding in the light."
Tuesday, September 19, 2017
Silencing is a powerful tool of oppression. Creeping authoritarianism has reinvigorated silencing as punishment and a way to limit free speech.
On September 11th, 24 of 28 University of North Carolina trustees voted to ban the UNC Chapel Hill's Law School Center for Civil Rights from engaging in litigation. This ban follows the Center's long struggle to maintain academic integrity and freedom.
Trustee Steven Long, previously affiliated with a conservative think tank, spearheaded the vote. He claims that a state university should not be “hiring full-time lawyers” to sue anybody, much less the state government. He said that the center defines civil rights in a way that’s too political, and that its litigation efforts go beyond its academic mission. Of course, clinics and centers involved in litigation are a staple of US clinical legal education. The University's Board Chair, Lou Bissette, acknowledged that he was not aware whether the Center's work was consistent with the law school's academic goals. He simply felt that the law school should refrain from civil rights litigation because "people do not agree." Bissette went on to say that he understood that law school clinics can engage in litigation because they operate under the supervision of the ABA. Confused, perhaps, Bissette seems to have missed the point.
Silencing often back fires. The Center and its attorneys are privately funded. While litigation through the law school center may formally halt, the funders could decide to simply move the project offsite, where law students could still participate as clinic students or externs. Or, Chairman Bissette may have provided a more simple remedy. Dissolve the Center and create the Civil Rights Clinic. Either way, silencing could be the foundation for promoting an even louder voice for civil rights.
Monday, September 18, 2017
Last week, Edith Windsor passed away at 88. As many will know, she was the plaintiff in U.S. v. Windsor, in which the U.S. Supreme Court overturned section 3 of the Defense of Marriage Act and consequently turned the recognition of same-sex marriages entirely back to the states. It was a significant gay rights decision in 2013, both substantively and incrementally for the recognition of marriage equality that would come ultimately in 2015 with Obergefell v. Hodges. Upon finding that DOMA offended constitutional federalism principles, Justice Kennedy’s decision in Windsor focused on the discriminatory objectives behind DOMA—how it was legislated from a place of animus toward same-sex couples and how that animus demeaned the dignity of those couples and their families. These observations go to the substantive importance of Windsor. In an incrementalist role, Windsor was a remarkable decision on the federal level because it was a rare moment in which same-sex relationships received a leverageable amount of respect. That leverageable amount was expanded two years later when the Court extended the fundamental right to marry to same-sex couples. Today, as the national LGBTQ rights consciousness moves toward sexual orientation antidiscrimination, Windsor remains as an important decision, providing insight as to how the law ought to regard sexual minorities.
Before marrying in 2007 in Canada, Edith Windsor and Thea Spyer, had been a couple since 1963 and were formally domestic partners in New York City in 1993. After their 2007 marriage, they lived in New York City, where New York state legally recognized their Canadian marriage. When Spyer passed away in 2009, she left her entire estate to Windsor. However, because DOMA had not recognize same-sex marriages on the federal level, Windsor was not qualified for the marital exemption under federal estate taxes. After paying $363,053 in estate taxes from the IRS, she subsequently sought a refund and was denied the request. Windsor then brought the suit that would eventually invalidate section 3 of DOMA.
Like many of the canonical Supreme Court cases that have effectuated significant social changes, such as Loving v. Virginia, Brown v. Board of Education, Lawrence v. Texas, Roe v. Wade, specific human dilemmas and situations first prompted individual legal action. But once such legal action solidified into actual changes in the law, the human drama at the core of these cases often fade into the background as the legal significance of precedence take on a bigger life—shaping and re-shaping doctrine, and gaining general applicability to American life. That is both the benefit and the curse of constitutional legacy.
I didn’t know Edith Windsor personally. What I know of her and her marriage to Thea Spyer are wrangled from what is now considered constitutional lore. I once observed her from afar at a New York City Pride Parade: she was waving her arms, smiling, and greeting onlookers like me on a very sunny summer day. Her importance to the modern American gay rights movement is immortal. While she herself was mortal. Beyond the Windsor decision, what I have learned from her is something she had been often heard saying: “Don’t postpone joy.”
Within the long journey to the marriage equality decision in Obergefell, timing has been important. As Bowers v. Hardwick had shown in 1986, the judicial and cultural mainstream had not yet accepted the idea of positive treatment of sexual minorities. It wasn’t until after the visibility of sexual minorities had changed for the betterdid we start to see pro-gay decisions, such as Romer v. Evans and Lawrence v. Texas at the Supreme Court. And yet, Edith Windsor’s mantra of not delaying joy did not stop her and Thea Spyer from experiencing what being human meant rather than delaying the joy of existence by waiting for injustice to be overturned. In this way, Windsor demonstrated the balance between personal activism and progressive incrementalism, and the complicated ways in which sexual minorities have had to negotiate their personal experiences with the forces under the law that have act against them. What she showed me was that while the law might still be processing what is the right thing to do, it is imperative not to give up on a moral and meaningful existence.
Sunday, September 17, 2017
The Danish Institute for Human Rights Research Department reports that over the summer, a team reviewed the abstracts of 1906 articles published in 17 international human rights journals from 2011-2017 in order to explore research and publication trends. The journals covered were European Human Rights Law Review, Harvard Human Rights Law Review, Human Rights Law Review, Human Rights Quarterly, The Netherlands Quarterly of Human Rights, Nordic Journal of Human Rights, The International Journal of Human Rights, International Journal of Children Rights, Journal of Human Rights, Journal of Human Rights Practice, Humanity - an International Journal of Human Rights, Humanitarianism, and Development, Sur – International Journal of Human Rights, Northwestern Journal of Human Rights, Columbia Human Rights Law Review, Yale Human Rights&Development Law Journal, Buffalo Human Rights Law Review, Howard Human and Civil Rights Law Review.
Here are the results:
According to the DIHR research department newsletter, "The above diagram presents respectively the four most and the least popular subjects in the articles reviewed. Nine journals were based in the US and eight in Europe. By far the majority of journals strive to include a broad range of disciplines and subjects in their publication policy. Three journals announced a focus on human rights law specifically. One subject posed a particular problem: the rights of the child. This was due to the fact that one journal, International Journal of Children Rights, is exclusively devoted to the subject. If this journal is included in the review, child rights range second in the subjects covered. If the journal is excluded, child rights is covered in 3.9% of 1727 articles. If an article covered several subjects, for instance a regional entity like Asia and a thematic subject, it was classified under each subject category, but with a limit of three different categories.
. . . . The table does not include the International Journal of Children Rights. An important caveat is that human rights topics will also be covered in international journals that are not directly focused on human rights as well as in domestic journals.
Three further remarks: Civil and political rights and Economic, social and cultural rights articles accounted for 8.9% of the articles Human rights and development articles accounted for 6.4% of the articles Theory, methodology, and meta research articles accounted for 5.8% of the articles."
Thursday, September 14, 2017
Earlier this week, the Senate unanimously passed a joint resolution condemning hate groups. In an amazing show of bi-partisan collaboration, the Senate expressed its sorrow for those who were injured or killed at Charlottesville. The resolution, submitted by three Republican and three Democratic senators, calls upon the President and his cabinet to use all available resources to fight hate groups, including White supremicists, Neo-Nazis, and the Ku Klux Klan. The resolution has its origins in the Charlottesville terror and acknowledges the loss of life, as well as other injuries inflicted to both police and civilians.
The President's failure to condemn the racist attacks in Charlottesville offended the Senators as much as did the events themselves.
The resolution may be read here.
Wednesday, September 13, 2017
Municipalities on the southern border of Mexico are facing an influx of migrants. And, while immigration is first and foremost a matter of national policy, it is at the local level where governments are dealing with the direct impacts of changing migration flows – we see this in the United States, and the situation is no different in Mexico.
The role of Mexican municipal governments in addressing the impacts of migration was the subject of a conference in Mexico City during the last week of August. The International Forum on Municipalities and Human Rights, sponsored by the Mexican Ministry of the Interior (SEGOB) in partnership with the German Cooperation Agency GIZ, and El Colegio de La Frontera Sur (ECOSUR) marked the official launch of a new national pilot project: “Municipios Fronterizos de Derechos Humanos” (“Border Municipalities of Human Rights”). Supported by a joint fund created by the Mexican and German governments, the project aims to facilitate greater coordination and capacity among 23 Mexican municipalities situated on the southern border of Mexico in order to strengthen human rights protections. These are the municipalities on the frontlines of migration, absorbing the migrants entering Mexico from El Salvador, Guatemala, and Honduras.
These municipalities on Mexico’s southern border are navigating ballooning population without a corresponding increase in resources or capacity. The individuals crossing the border to Mexico in search of better circumstances face xenophobia, discrimination, and criminalization. Local efforts to support new migrants, where they exist, are stymied by an increasing reliance on detention and deportation to reduce the influx of migrants, as a result of national policy instituted by President Nieto, which has been linked to US influence.
How can these municipalities take actions that recognize the dignity and humanity of the individuals entering their communities? What are localities doing in other countries that can inspire innovative action? These were the questions animating the two day forum, which aimed to promote “exchange of national and international experiences on the advancement of human rights in municipalities and cities.”
To generate innovative and sustainable policies, participants from Germany, Spain, Argentina, the United States, Italy, and across Mexico offered insights into ways that human rights can inform public policy at the local level, as well as the political and practical challenges implicated in these efforts. The Mexican-German pilot program is designed to build the capacity of municipal governments to address new residents, and to create a space where they can learn from each other, collaborate, and share challenges, strategies, and experience, over the span of several years.
Many barriers to coordinated action arose early in the convening. The mayor of Tapachula, a “gateway to Mexico”, highlighted the practical realities that he faces in his municipality. He noted the lack of space, housing, and services. He explained how Tapachula has instituted emergency shelters, and started public programs to address migrant needs. NGO and government representatives from Chiapas discussed the challenge of connecting migrant women to health services they need in an area where already hospitals already lack basic medical tools, like syringes. Another government representative from a remote area of Chiapas spoke of the challenges of any coordination in a location where there is often no access to email. The view that migrants in general pose a threat to security in local communities also surfaced (and was the source of contentious debate).
These challenges are great. But the driving idea of this transnational and intra-governmental partnership is that the hurdles are not insurmountable.
Sitting in the room, as a US citizen, it was impossible not to see the parallels to the situation on our own southern border. In the US, we are clearly not doing all we can do, locally or nationally. National policy stands as a blueprint for how not to act. (US detentions and deportations were recently denounced by the UN High Commissioner on Human Rights) And, while some U.S. cities and counties are mounting a resistance to the US federal government’s approach to immigration enforcement, there are also growing numbers of jurisdictions adopting anti-sanctuary policies. Xenophobia permeates media coverage as well as legal and policy discussions on how to address migration flow. This is true in both the US and Mexico.
Yet, being in this space where stakeholders from academia, civil society, municipal and the federal governments are hungry to advance human rights, it was hard not to feel some positivity. The interest of the municipal government participants (85% of audience) in collaborating to make improvements was palpable. Repeatedly speakers demonstrated strong interest and desire for new strategies and solutions - and positive examples of municipalities absorbing migrants in an inclusive way that promotes human rights did emerge
A speaker from Nuremberg, Germany, discussed the provision of social services to migrants in a city (including subsidies to support jobs for low-skill workers and started welcome centers). We learned too about efforts in Catalonia to promote integration. And the county executive from Santa Clara, California discussed the County’s role bringing the first lawsuit against President Trump’s effort to take federal funding away from sanctuary jurisdictions as an example of how local governments can stand up to protect the rights of local communities. He also discussed Santa Clara’s more proactive efforts to support immigrant and migrant community members through coordinated services and outreach, as well as funding to support legal representation in cases of immigration detention. Local officials and NGO representatives from Comitán, Mexico talked about efforts to connect migrant women to services, and foster social integration.
This convening and the municipal pilot project itself are encouraging first steps to empower Mexican municipal actors to take joint, positive action. It will be interesting to see how the project unfolds and what strategies emerge. The idea of the pilot project is that it can ultimately be replicated in other municipalities, and in relation to other issues. Yet, how the collaboration of 23 municipalities on this politically charged issue will translate into action in Mexico’s thousands of municipalities remains to be seen. There are the day-day challenges that the local authorities face. There is the tension between localities seeking to foster inclusion, and the harsh immigration policies deployed by the federal government. There was only cursory mention of the seeming disconnect between development-oriented policies like the pilot project, focused on governance, and simultaneous efforts to “secure” the border, which in effect return many individuals to deplorable circumstances in Honduras, Guatemala and El Salvador (“the Northern Triangle”). Yet aggressive deportation policies have devastating human impact, and they must be reckoned with to make any sustainable improvements in border communities.
Notably, the human rights impacts of returning migrants, refugees and asylum seekers to their home countries was the focus of an Inter-American hearing that took place just one week later, on September 6th, during its most recent period of sessions. The video is available here. (Notably, the sessions included two hearings on the US, on September 7th and the US State Department was in attendance).
[Author’s Note on the IACHR: For those who are watching US engagement with the Commission, the IACHR recently announced that there will be hearings on the United States and Canada from November 29th-December 7th in Washington, DC. Hearing and working meeting requests can be submitted until Wednesday, October 4th, at this link: https://www.oas.org/forms/TakeSurvey.aspx?SurveyID=7l206m4 or through the IACHR’s website: http://www.oas.org/en/iachr/media_center/calendar.asp]
Tuesday, September 12, 2017
On September 11, the UN High Commissioner on Human Rights delivered an Opening Statement to the Human Rights Council. He titled the report "Darker and More Dangerous." In the statement, the High Commissioner reviewed a number of human rights challenges and low points, including Egypt, Guatemala, China and Syria. The United States was also on the list, with these comments from the High Commissioner, decrying policies that punish immigrants and the regularization of antisemitism:
"In the United States, I am concerned by the Government’s decision to end the Deferred Action for Childhood Arrivals programme in six months’ time, despite evidence of its positive impact on the lives of almost 800,000 young immigrants, and on the US economy and society. I hope Congress will now act to provide former DACA beneficiaries with durable legal status. I am disturbed by the increase in detentions and deportations of well-established and law-abiding immigrants: the number of migrants detained who had no criminal convictions was 155% higher in the first five months of this year than in the equivalent period in 2016. Some migrants, including longstanding residents, are now so frightened of expedited deportation they refrain from accessing police protection and courtrooms; for example, reports of rape by Latina women in Houston fell by 43% in the first three months of 2017. I have publicly expressed my concerns about the antisemitism and racism openly voiced in Virginia last month, and which is also increasingly manifested online and in public debates. Free speech is an invaluable and essential right, under both international standards and US law, and it should not be weaponised by calls for violence and hatred."
During the same session, the UN's Working Group on Arbitrary Detention presented the report of their visit to the United States. The U.S. government's September 12 statement in response to the report -- which explicitly reiterates the U.S. government's commitment to "implementing U.S. obligations under international law" while rejecting many of the group's conclusions as mere "policy preferences" -- is available here.
Monday, September 11, 2017
Law students today demand classrooms that are responsive to the "movement moment" in the U.S. As you prepare your courses, check out the new Guerrilla Guide to Law Teaching #6: Human Rights Law.
According to the authors, "[t]his Human Rights Law Guide aims to identify opportunities for a critical approach to the teaching of human rights law in all of its contexts: larger survey courses, seminars on specific human rights issues or related topics, clinics, and pro bono activities. It is organized around sample modules to allow for incorporation into a range of courses geared towards substantive areas of rights (including Health Law, Labor & Employment Law, National Security Law, & Business Law), practice areas within human rights, and lawyering itself." Links are provided to make it easy to incorporate these resources into your teaching.
As of this writing, there are seven other Guerrilla Guides posted: on clinical law teaching, immigration, administrative law, evidence, use of biography in class, and criminal law, with one more setting out four principles of law teaching in this moment. In the U.S. human rights area, another resource -- for reference or teaching -- is Davis, Kalb & Kaufman, Human Rights Advocacy in the United States.
Sunday, September 10, 2017
Lawyers for Good Government/Action Network has DACA training this week for volunteer attorneys. The attorneys will assist DACA youth in completing DACA renewals. The trainings are national and conducted by telephone.
The Action Network webpage states:
"We've scheduled three online training sessions for volunteer lawyers, to be held at 8pm Eastern / 5pm Pacific on Sunday (9/10), Monday (9/11), and Tuesday (9/12). The trainings, which will focus on the completion of DACA renewal applications for current DACA status holders, will be led by an immigration lawyer from AILA (the American Immigration Lawyers Association)."
You may register here.
In addition to training volunteer lawyers, Action Network is recruiting and training state and city-level Immigration Volunteer Coordinators "to help connect volunteer lawyers with DACA clinics, and we're working with AILA and other organizations to maximize opportunities for volunteers to assist at DACA clinics wherever and whenever help is needed."
Trainings will be held on Monday (9/11), and Tuesday (9/12).
Thursday, September 7, 2017
Several recent reports advance the conversation about corporate accountability.
Amnesty International and the Business & Human Rights Resource Centre released the report Creating a paradigm shift: Legal solutions to improve access to remedy for corporate human rights abuse on September 4. The report, which follows up the proposals contained in Amnesty’s 2014 report Injustice incorporated: Corporate abuses and the human right to remedy, sets out an agenda for legislative reform, focusing on parent company liability, Forum non conveniens and the Mandatory Collection and Disclosure of Information. The study explains that “A number of significant legislative initiatives in the last two years point to the beginning of a paradigm shift. Those driving legal reform must keep this momentum going and capitalise on the various legislative advances by tailoring proposals to their particular legal system, even if change is achieved through incremental steps over time. The aim of this publication is to highlight those legislative developments and fuel further legislative solutions to improve access to remedy for corporate abuses.”
In August, a report commissioned by a group of NGOs was published, Removing Barriers to Justice: How a treaty on business and human rights could improve access to remedy for victims. The report is aimed at supporting the mission of the Inter-Governmental Working Group on business and human rights, established by the Human Rights Council in 2014 “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The report examines five case studies that document the challenges facing victims and identifies areas for reform. It concludes that “There are fundamentally two levels at which the Treaty can deliver change. The first recognizes that the majority of the barriers identified in this report exist at the national level, that is, within domestic law. Therefore change needs to happen at the level of domestic law reform in multiple countries if these barriers are to be effectively removed. The second approach calls for something more radical, by placing binding obligations on businesses, and backing that up with some form of monitoring, supervisory or judicial body at the global level. There are good arguments in favour of either approach. It is possible, and may be desirable, to pursue both strategies under the Treaty, calling upon States that ratify it to both amend their domestic law and to pave the way to an international supervisory regime.”
And a timely study reported in the journal Climate Change on September 7 traces the connection between climate change and specific fossil fuel producers. Study co-author and professor of geosystem science at the University of Oxford Myles Allen explains the importance of the findings: “This study provides a framework for linking fossil fuel companies’ product-related emissions to a range of impacts, including increases in ocean acidification and deaths caused by heat waves, wildfires and other extreme weather-related events. We hope that the results of this study will inform policy and civil society debates over how best to hold major carbon producers accountable for their contributions to the problem.”
Wednesday, September 6, 2017
With the World Human Rights Cities Forum coming up on September 14-17 in Gwangju, Korea, here are two new resources on local human rights implementation.
First, the Swedish Association of Local Authorities and Regions has just issued an English translation of its publication Human Rights at the Local and Regional Level: A Platform for Policy and Operational Development, developed in collaboration with the Raoul Wallenberg Institute of Human Rights and Humanitarian Law. Geared toward municipal and regional practitioners, the publication aims to "highlight what policymakers in municipalities, county councils and regions specifically need to do in order to strengthen their systematic work on human rights, as established in the regional and international conventions."
Second, the European Training Center in Graz, Austria (itself a human rights city), has published a new collection of essays and primary documents titled Focusing on Human Rights on the Local and Regional Level. Essays in the collection address human rights awareness and planning, as well as regional developments in Bosnia, Austria, Sweden and elsewhere.
Tuesday, September 5, 2017
A federal court judge ruled last week that the descendants of former slaves of Cherokee Indians have the legal right to membership in the Cherokee Nation. At the time of the Civil War, some Cherokees kept slaves. When the Civil War ended, the Cherokee Nation signed a Treaty with the United States agreeing that "“never here-after shall either slavery or involuntary
servitude exist in their nation” and “all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the
commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees . . . .”
Trouble began when the Cherokee Nation changed its criteria for eligibility in 2006. The criteria was amended to recognize blood only. This precluded descendants of freed slaves from claiming membership in the tribe. This change disenfranchised approximately 2800 descendants of freed slaves. In rendering its decision, the court noted: Although it is a grievous axiom of American history that the Cherokee Nation’s narrative is steeped in sorrow as a result of United States governmental policies that marginalized Native American Indians and removed them from their lands, it is, perhaps, lesser known that both nations’ chronicles share the shameful taint of African slavery."
The federal court decision clarifies that the tribe must treat tribal members equally whether that membership comes by blood or freed slave descendency. The tribe has accepted the outcome. Cherokee Nation's Attorney General Tom Hembree said:
Monday, September 4, 2017
We join with others in the nation and the world in mourning the loss of life and other serious impacts of the recent storms in South Texas and Louisiana.
As the devastation of Harvey continues to come into focus, many are beginning to articulate concern about the short- and long-term human rights implications of the disaster. As Colette Pichon Battle, E.D. of the U.S. Human Rights Network recently wrote, "we live in a changed climate with more intense and extreme weather events. We must prepare for the inevitable fight for human rights in the long process of recovery."
More than one decade later, the aftermath of Hurricane Katrina is widely viewed as a human rights disaster , where the governments' failed responses compounded the impacts of the initial flooding. To avoid a similar outcome, we hope that the human rights lessons learned from Katrina will be incorporated into the ongoing response on the ground. For example, the UN has developed (and the US has endorsed) Guiding Principles in Internal Displacement that can serve as a touchstone for policies to address the plight of the thousands displaced by Harvey.
As communities in Houston and surrounding areas begin to address these impacts, it is particular important that funding reach communities that were already marginalized before the storm and that are likely to face even greater challenges now. To help with this, Colorlines has published a short guide to charities and organizations assisting communities of color post-Harvey. Additional resources focused on the most vulnerable are available from the National Low Income Housing Association.
Sunday, September 3, 2017
Editors Note: On this Labor Day we decided to revisit Martha Davis' 2014 post on the right to leisure.
Don't begrudge President Obama a few days of vacation and a couple of rounds of golf this August. According to Article 24 of the Universal Declaration of Human Rights, "Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay." Or, as Youth for Human Rights calls it, the "human right to play."
But though the "right to leisure" gets its own Article in the UDHR, it doesn't get much respect. The academic literature on the Right to Leisure is sparse at best. And in one recent article, "Worth What We Decide: A Defense of the Right to Leisure," the authors call the right "one of the most routinely philosophically and politically attacked sections" of the UDHR. In fact, they note that ratification of the Children's Rights Convention has been held up in the U.S. in part because of the treaty's recognition of children's right to play.
Why are Americans, in particular, so touchy about leisure? According to recent reports, most Americans leave half of their vacation days untouched, and 15 percent skip vacation entirely. Among those who do take a break, more than half keep in contact with the office and do some work in between those rounds of golf. In contrast, U.K. workers get an average of 25 paid vacation days per year (compared to 14 for the U.S.) and take all of them. French workers clock in with an average of 30 paid vacation days, and report that they need more (perhaps because 93 percent of them take their blackberries to the beach)!
There is one group, however, that takes its leisure very seriously: the World Leisure Organization. Founded in 1952, the WLO is a "world-wide, non-governmental association of persons and organizations dedicated to discovering and fostering those conditions best permitting leisure to serve as a force for human growth, development & well-being." Justly proud of leisure's status under the UDHR, the WLO has convened a number of international Congresses, several of which have issued formal declarations so serious and unplayful that they might be mistaken for diplomatic efforts.
The fundamental document of the WLO is the World Charter for Leisure, which incorporates the UNDR provision. The Sao Paulo Declaration of 1988 builds on the Charter, addressing "Leisure in a Globalized Society" and calling on governments to ensure that leisure is broadly available to all. The Quebec Declaration of 2008 links leisure to community development, noting that "it affects the well-being of individuals, contributes to the development of social ties and social capital, and represents a place for expression and engagement in democratic life."
In 2013, responding to pressure from the WLO and the International Play Association (IPA), the Committee on the Rights of the Child issued a General Comment addressing, among other things, children's right to leisure and play. Noting that the right to play was articulated by the international community as early as 1959, the CERD Committee characterized it as poorly recognized by State Parties ot the Convention. The General Comment spells out more specific expectations in terms of children's access to play,
So save your guilt, reject American exceptionalism and this year, claim your full share of leisure!