Human Rights at Home Blog

Intercultural Cities

by Martha F. Davis, Professor, Northeastern University School of Law

InterCultural Cities (ICC), a programme of the Council of Europe, is not widely known in the U.S., but that may change.  Arriving at the ICC meeting in Lisbon earlier this week, I believed that I was the only American.  Soon, however, I met a diversity consultant based in Minneapolis who is working with several Minnesota cities to come on board, and an activist from Washington, D.C., who has been pushing the idea in the District.  To date, no U.S. city has joined the group.

This is the ICC’s tenth year.  It is a membership organization, with member cities large and small paying annual dues.  Upon joining, a city conducts an audit to determine their baseline for dealing with cultural diversity.  A team of experts visits to assess the city, with periodic reports and visits following thereafter to evaluate the local government’s progress in achieving its goals.  Throughout, the ICC provides expert guidance and a supportive presence to those within the city who are devoted to issues of diversity and inclusion.

The meeting I attended focused on local approaches to dealing with refugees and migrants, building on the idea that intercultural initiatives speed the inclusion of new arrivals into existing communities and deter radicalization that might otherwise come with isolation.  A recurring theme was the tension between national and local governments, with nations making decisions about borders and resource allocation that undercut local agendas for growth, innovation and cultural exchange that rely on new arrivals.

Interestingly, US city activism in the Trump era was repeatedly cited as a model.  “American cities seem well organized,” one speaker noted, citing the sanctuary city movement.  And under the right circumstances, attendees observed, they’re not afraid to assert power, as we’ve recently in the local response to climate change.

Still, the overall tenor of the meeting was sobering.  The rise in populism is worldwide, and cities alone – however strong – will not be able to save progressive values if the populist movement grows.  The Council of Europe and UN representatives, the mayors and vice mayors, and the NGOs and academics were looking for something more for their toolboxes -- a technique for spreading democratic values and human rights norms while providing language and vocational training, housing assistance and meeting other basic needs. 

 

New Report on the Long Term Impact of Prison Isolation

The Center for Constitutional Rights recently released a report on mental health consequences for those released from solitary confinement.  The report was issued in conjunction with Stanford University's Human Rights in Trauma Mental Health Lab.  Nahal Zamani of the Center commented on the results of the joint study.   

"In the report, based on interviews with about 30 individuals at three maximum-security prisons, researchers found that prisoners formerly held in long-term solitary confinement in California’s Security Housing Units (SHUs) face continuing mental health consequences even after being transferred to general population. Interviews revealed a range of continued, and potentially permanent, adverse consequences, including: mood deterioration and depression, intense anxiety, emotional numbing and dysregulation, cognitive impairments, modifications in perception of time, physical health ailments, distressful relational estrangement with family and/or friends, and diminished capacity for socialization."

To read the full report, click here.

The report is a companion to earlier research conducted by the Center and members of Yale Law School's International Human Rights Clinic documenting the impact of near total isolation in prisons.  

 

Buddhist Economics: Anticipating the Visit of the UN Special Rapporteur on Extreme Poverty

by Margaret Drew

With an upcoming focus on extreme poverty, discussion must be had on how economic decisions are made in the US.  Buddhist economics looks for a "middle way" between profitability, full employment and sustainability.    One false foundation of US economics doctrine is a belief in certainty.  We see certainty, or perhaps it is inflexibility, playing out in the tax plan pending in Congress.  Those claiming that trickle down economics theory is valid believe - or claim to believe- that the more money retained by the wealthiest business owners, the more jobs that will be created.  While this theory has been disproved, the notion is hawked with certainty.  

In the other extreme, living a life of prayer and mediation may be ideal for some, but few can afford the luxury of a contemplative life, absent a wealthy patron.  For most, spirituality must be woven into a life that includes work so that the individual can survive, meet basic needs and sustainability.  Finding balance between entitlement and necessity would be one middle way.  In order to establish full employment for those who need resources to support self and family, that middle option must be developed.  There is no one prescription except that in Buddhism, one would be a consumer only to the extent that one's needs are met and sustainability must be a factor is business decisions. 

US corporate economic policy rests in large part upon obsolescence.  Products are often not made for sustainability and require frequent replacement.  In other instances consumer desire for the latest version or upgrade drives consumer purchasing, again without reflection on sustainability.  Attachment to goods is countered by the Buddhist principle of non-detachment.  Reductions in force with no work replacement for employees counters Buddhist belief that all are connected.  In Buddhist economics, sustainability, fairness and compassion are equal parts with profitability.  

How do we begin to find the "middle" economic way?  Business must view the creation of a healthy workforce as a priority.  Corporate responsibility needs to extend to the health and happiness of employees.  Business must recognize that executive success is best measured by the connection to the people that comprise the workforce, not to the dollars earned.  Supporting each individual to engage in "right livelihood" is essential to Buddhist economics but also to the sustainability of US ideals of opportunity.  Demanding that shared prosperity benefit all does not require income leveling.   Once the lowest of employees is paid an amount that permits workers to meet their needs and the needs of their dependents, CEO compensation may be irrelevant. 

Here are some who have written on Buddhist economics, although US literature on the topic is underdeveloped.  Some links to explore topic are here, here and here. 

Philosophers Speak . . . About the Morality of Sanctuary Cities

Lawsuits filed by cities and states around the country are challenging the Trump Administration's efforts to penalize sanctuary jurisdictions for protecting their residents.  The courts will sort out the legal issues (and have already enjoined the enforcement of the Administration's Executive Order cutting off federal funding to sanctuary cities).  But what are the underlying moral issues at stake?  

To find out more: Plan to attend a lecture by Dr. Shelly Wilcox on Thursday November 30, at 3:30 p.m., at Northeastern University School of Law, 416 Huntington Avenue, Boston, MA, in room Dockser 230 on the morality of "sanctuary cities."

Dr. Wilcox is a Professor of Philosophy at San Francisco State University.  As she describes it,

    "This talk explores the moral issues associated with local sanctuary policies. I examine three arguments in favor of sanctuary policies—the
    public safety, civil disobedience, and collective resistance arguments—and I defend the latter. In doing so, I address several important issues that
    have received scant attention in the philosophical literature on migration, including migrant detention and deportation, the criminalization of
    migrant subjects, and the militarization of national borders." 

Sanctuary cities include Boston, Chicago, Philadelphia, San Francisco, Santa Clara, Austin and the list goes on -- more than 300 cities, counties and states have declared their sanctuary status.

Are sanctuary city policies justified morally speaking? Come to the lecture on November 30 to learn more about this politically important topic. For more information,  click here.

Boston and the Human Right to Water

The UN Special Rapporteur on Extreme Poverty will visit the United States from December 1 through December 15.   In anticipation of this important visit, we will be posting a number of special blog entries highlighting input submitted to the Special Rapporteur in advance of his visit.  This blog, written is the first in this series.  

by Alicia Cook, Northeastern University School of Law, '18 

National water crises such as those in Flint and Detroit, Michigan have drawn international attention to the human right to water, and ongoing issues facing water affordability and accessibility for many Americans across the country. New data drawn from water crises across the country calls into question the U.S.’s ability to meet this basic human right, as well as what obligations cities themselves may have in supporting the human right to water. Statistics also alarmingly reveal that growing barriers to water affordability and accessibility correlate strongly to deeply-entrenched intersections of racial discrimination and poverty. Lower-income communities consistently face greater roadblocks to accessing clean and affordable water services and maintaining such services, while simultaneously shouldering increasing costs of water utilities infrastructure. Limited access to water disproportionately impacts communities of color and poorer neighborhoods, but also perpetuates cyclic barriers of poverty.

            Perhaps surprisingly, Boston is now among one of the major cities facing its own crisis regarding the human right to water. Despite its comparatively high level of affluence, Boston continues to see similar correlations between race, poverty, and limited access to affordable water services. The Color of Water, a local, Boston-based NGO, has been at the forefront of Boston’s water issues, and has conducted significant research on the human right to water throughout city. Based on data collected from the Boston Water and Sewer Commission (BWSC), the Color of Water found that thousands of people are threatened with shutoffs to residential water service in Boston each year, and that lower socioeconomic neighborhoods are disproportionately impacted by such shutoffs. Typically, these shutoffs are due to account delinquency, and lower-income neighborhoods—usually those that are home to larger concentrations of communities of color—are more likely to experience account delinquencies and the subsequent water insecurity that comes with these shutoffs. This effect is even more pronounced in neighborhoods with a higher concentration of multi-family dwellings. Significantly, every 2% increase in people of color in a Boston ward resulted in a 3% increase in shutoff notices in that ward.

            In addition to more general correlations between race and low socioeconomic status, these analyses reveal issues of water inaccessibility distinct to Boston. Water bills in Boston are significantly higher than in other U.S. cities, and the price of water is increasing. Data from 2014-2015 alone showed a 5.1% increase in the cost for a family of four using approximately 50 gallons of water, per person per day, although this increase stalled in the last year. While Boston’s average per-capita income may be higher than that of other cities ($35,728 in 2015 dollars), the percentage of low income households is also significantly higher than many areas of the U.S. Statistics over the last several years have noted that more than 17% of households in Boston earn less than $15,000 annually, compared with less than 12% nationally.

            The fact that Boston, with a higher average income and significant economic and political resources, continues to struggle to provide universally affordable and accessible water only serves to underscore the deep entrenchment of poverty and racial discrimination across the country. This deep-seated inequality along racial lines, and its consequences for water affordability and accessibility, is even further significant given Boston’s declaration of itself as one of the country’s Human Rights Cities in April 2011. As a designated Human Rights City, Boston commits itself to develop new local practices and policies to promote urban justice, and uphold the principles of democracy, nondiscrimination, and participation regardless of race, sex, cultural background or economic status. Given its designation, and consequent commitment to promoting human rights at the local level, Boston’s deeply-rooted and distinct issues surrounding the intersection of race, poverty, and access to water are notable in the national conversation.

            The question then remains as to what next steps the city can take to ensure a decrease in threatened water shutoffs within the poorest neighborhoods. With Boston’s comparatively greater access to financial support for water resources, a significant first step may be as minimal as recognizing the distinct correlation and divide between water affordability and accessibility across city neighborhoods. The Color of Water’s extensive data has already provided the foundation for understanding the existence of this deeply-entrenched problem. Additionally, local advocacy groups must collaborate to push for stronger local legal reforms that will protect citizens’ rights against discriminatory practices in accessing and affording household water services, and ensure participation in the development of anti-discriminatory access plans. Ultimately, Boston is uniquely situated as a city with the available resources and local advocacy power to create significant social change and legal reform regarding the human right to water. Boston must mobilize to recognize its current deficiencies, and utilize its available resources by dedicating its attention to this critical issue.

Good News from the North

On Wednesday, Prime Minister Justin Trudeau acknowledged for the first time that housing is a fundamental human right that should be protected under  Canadian law.  While the move is highly symbolic, it will also have practical implications if the government follows through with its pledge to create a long-term, bench-marked national housing plan.  Among other things, the proposed housing plan will allocate $40-billion to support the construction of more social housing, repair old units and deliver up to $2,500 a year in rent support for vulnerable families.  A separate national housing strategy for indigenous peoples will be announced at a later date.

Leilani Farha, the UN Special Rapporteur on the right to housing (who also happens to be Canadian) hailed the Prime Minister's announcement as a positive development.  Said the Special Rapporteur, "[i]t's historic to have adopted a housing strategy at all, but to have added to that all these strong human rights recognitions ... for me it's a really big step that this government, and all governments of Canada, have really resisted in the past. They've been repeatedly told, since 1993, by the UN that they need a housing strategy. So, it's been a long time coming."

 

 

We Are Thankful For Our Readers

We wish you a Happy Thanksgiving.  Blessings on you and yours.

We Have Only Fifteen Minutes: Fears of a Second Wave Feminist

The celebrity men are falling.  Charlie Rose is the latest formerly venerated but large egoed man to fall under the weight of sexual harassment allegations.  The line of the dethroned is getting longer, but the time is getting shorter. 

During the 1980’s I was one of a handful of lawyers who tried divorce cases on grounds of abuse.  “No Fault” divorce had arrived in all but a few states.  Trying cases on any other grounds was considered distasteful.  But my clients wanted their truth heard in court.  The judgments my clients received would today be considered amazing.  In the 80’s the judgments were viewed as just compensation for the suffered abuse. 

Then came the 90’s.  Domestic abuse was discussed widely and openly. Those jurisdictions that had not yet enacted civil protection order statues, did so.  Slowly women, who were primarily if not exclusively the petitioners, came forward to demand protection.  Judges heard stories of abuse that shocked them. 

But then things changed.

So many women came forward seeking protection from abuse that judges assumed that not all of the women’s claims could be true.  Judges had difficulty accepting the prevalence of gender bias. By the end of the decade, the seeds had been sown in family court culture for women seeking divorce to be found not credible in that surely women were seeking protection orders only to gain a “leg up” in the divorce proceedings.  No mind that all of the data shows that seeking a protection order does not result in an advantage for the abused parent.  Quite the opposite. Raise abuse when children are involved, and the mother's presumed motive will be to "alienate" the children from their father.

So I am compelled to raise the alarm.  With so many women, and some men, coming forward alleging sexual harassment by celebrities what will be the tipping point where accusers are branded as liars?  Am I being an unnecessary alarmist? 

We have not scratched the surface of sexual harassment.  Rather than #MeToo, perhaps #NotMe would give a more accurate count of who has and has not been the victim of sexual harassment.  I am afraid that our non-celebrity sisters will be deprived of their opportunity to air their grievances and be believed.  That is where the work needs to be done.  Finding platforms for the most vulnerable to air their stories without retaliation has a short window. 

So if you have a plan – whether to provide legal services to those who tell their stories and are vulnerable to immediate discharge from work or other consequences – or if you hope to publicize how common sexual harassment is in all levels of our nation- do it soon. 

File legislation, record the stories of our unknown sisters, bring the powerful to the workplace to prevent firing when disclosures are made, Prepare for the backlash and have a plan to defeat it -  but do it within the next fifteen minutes.

Washington College of Law: HR Essay Contest

The Academy on Human Rights and Humanitarian Law

 

 

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Am

erican University Washington College of Law (AUWCL) is accepting submissions for its Human Rights Essay Award, an essay competition that seeks to stimulate the production of scholarly work in international human rights law.

 The topic for the award this year is Gender Violence and International Human Rights Law and participants have the flexibility to explore any subject related to the assigned topic, in either English or Spanish as one winner is chosen in each language. The deadline for submission is February 1, 2018.

Winners will be awarded a full scholarship to attend the Academy’s Program of Advanced Studies on Human Rights and Humanitarian Law from May 29 – June 15, 2018. They will also have the opportunity to publish their work with the American University International Law Review. For more information, click here or email [email protected].

First published on the IntLawGrrls Blog

 

Carla Cortavarria | November 19, 2017 at 9:39 pm | Cat

Immigration Status: No Need to Know

The question was:  does a jury need to know a person's immigration status? The Supreme Court of Washington answered No!  In most civil and criminal cases, the court found the information to be inadmissible.  The court's creation of a new evidentiary rule addresses the bias that influences decision making when the finder of fact hears irrelevant information on immigration status.  There are some exceptions but by and large status information will not be part of the record.  

The case in question was a mini-bias exercise. Carpenter Alex Salas was injured on the job.  In case no. 1 the jury found his employer to have been negligent and found for plaintiff Salas.  Trouble came when the jury awarded no damages.  After appeal the case came back for re-trial and the next jury awarded Mr. Salas $2.6 million.   The evidence submitted at each trial was the same with an exception - the first jury heard evidence that Mr. Salas was in the country without legal status.  The second jury never heard that information. 

The appeal that followed the first trial was a precursor of the recent opinion.  That decision found that the judge had abused discretion and led to the creation of a new rule of evidence - number 423 - Immigration.   The rule excludes evidence of status in civil and criminal cases with narrow exceptions, such as  when status is relevant to the crime or the case. 

Washington is the first state to create an evidentiary rule on this issue.  This rule will be a relief to immigrants in a variety of cases.  I particularly think of abused immigrant women who consistently face bias in custody decisions when the court is convinced that even the possible threat of deportation warrants an award of custody to the abusive father.  A myriad of other litigants will benefit from this discovery restriction.  This is a wonderful opportunity for advocacy to all other US jurisdictions to equalize justice for immigrants through adoption of a comparable rule. 

Scholarly Voices: Reflecting on the Reflections, One Year Later

We were excited to solicit contributions to our Scholarly Voices series reflecting on one year since the 2016 election.  In part, we were excited because the people we asked mostly said yes, so we were able to offer up a range of new voices and perspectives. 

But frankly, we were also hoping that this series would give us a boost.  Like so many of you readers, those of us on the back end of the blog can't help but feel tired and stressed and fed up as we read about and experience the latest daily insults to democratic governance, the rule of law and individual human  rights.

The good news is, we did get a boost -- and we hope that you did, too!  We will need all of the energy that we can muster for the next year, so we thank our thoughtful contributors for giving us some perspective (some of it quite sobering) to help us along.

For those of you who missed one or more of the Scholarly Voices postings, here's a catalog:

To kick off the series, Fran Quigley distilled nuggets of hope from bipartisan efforts on the state level to address drug pricing.  Check it out here!

Next, Margaret Drew found hope in the increased visibility of women's voices speaking out about sexual assault and harassment, a phenomenon that has continued to gather strength even in the past week.  In a separate post, Margaret Drew argued that we are better lawyers as a result of the focus, vigilance and creativity required over the past year.

Justine Dunlap reflected on the changing rhetoric of the past year, from "soft misogyny" to a harder, more open version of sexist language and treatment. 

Writing from Hofstra, guest contributor Barbara Stark examined hate speech after Charlottesville, considering comparative examples and noting that changing contexts may change our view of what can be tolerated.

Davida Finger, based in New Orleans, drew strength from the local organizers with whom she works on housing issues, writing about their work in a blog titled Displacement.

Lauren Carasik looked at where we've come on climate change and human rights over the past year, particularly noting the interrelationships with the refugee crisis and the urgency of concerted action.

Finally, in a post titled Mobilizing for Resistance in the Age of Trump, Bill Quigley charged us all to look beyond the "symptom" of Trump and focus on real resistance and movement building.

As always, we welcome comments, retweets and other engagement with this blog as readers and writers alike continue to advocate for human rights at home.

 

 

UN Special Rapporteur on Extreme Poverty -- Update on US Visit

As previously announced, the United Nations Special Rapporteur on extreme poverty and human rights, Professor Philip Alston, will undertake a human rights fact-finding visit to the United States from 1 to 15 December 2017 to investigate government efforts to eradicate poverty in this country, and how these efforts relate to the nation's obligations under international human rights law.

The Special Rapporteur received submissions from over 45 US organizations and individuals in response to his call for input, with stakeholders urging that he visit locations ranging from Boston to New Mexico. 

Last week, the Special Rapporteur announced that he  will travel to Washington, D.C., California, Alabama, Georgia, Puerto Rico and West Virginia. During his visit, Professor Alston will meet with government officials at the federal, state and local level. He will also meet with individuals living in poverty to hear about their experiences, talk to civil society organizations working on poverty and human rights, and receive briefings from academic experts.  Among other things, he will attend the US Human Rights Network's annual gathering in Atlanta, where he will convene several listening sessions with grassroots activists.

In the press release announcing his itinerary, Professor Alston noted that “[t]he United States is among the richest countries in the world, yet deep forms of poverty and inequality continue to exist in the country."  He added, "[w]hile some may wonder why an expert on extreme poverty and human rights visits a country as rich as the United States, the reality is that many individuals in the country are income-poor, or live in multidimensional poverty.”

The Special Rapporteur's visit will culminate in a press conference at 12 noon on December 15, at the UN Information Center in Washington, D.C.  At that time, he will deliver preliminary observations and recommendations.  A final report will be presented to the Human Rights Council in June 2018.

You can follow Professor Alston's official visit through his twitter account, here.

A Message from Kofi Annan: The Courage to Make Positive Change

Former UN Secretary-General Kofi Annan has set out his advice for world citizens to address some of the most serious problems  facing humankind.  Those problems include the widening gap between the wealthiest and the poorest; environmental and natural resource degradation, as well as man-made climate change.

Annan makes three recommendations:

1.  Make sure that business does not forget the poorest among us.  As Annan states:  Business know that tending to the neediest in society is good for business.  By raising income levels, the consumer base expands. 

2.  Create private-public partnerships. Among other goals, these partnerships create employment opportunities, particularly for women and girls. 

3.  Businesses must assure us that their decision making will have ethical and sustainable foundations.

Annan concludes:  "With the full engagement of the private sector, globalization can be harnessed into a process which ensures prosperity for all, while protecting our planet. So let us all start living up to this responsibility today and lay the foundation for a brighter tomorrow."

The full essay can be read here. 

Scholarly Voices: Mobilizing for Resistance in the Age of Trump

By Bill Quigley, Loyola New Orleans

Wherever there is injustice, there is resistance.   A resistance based on anger, courage, hope and collective action.

Our current injustice is not just Trump.  Trump is the symptom, not the disease.

Our disease started with the building of our nation on the foundation of two genocides.  One against millions of the original inhabitants.  The other against millions of people originally bought and brought as property and labor.  

And yet there was resistance.  Millions of Native Americans and millions of slaves and damn few allies fought fiercely for the right to exist as humans and for human rights.  Their struggles inspire us today.

So how do we take today’s anger and turn it into real resistance?

For those who wish to resist today, it is important to understand how social change comes about.  Study shows us that true resistance that results in social change is based on collective movements.   People together voicing their anger while reclaiming their rightful dignity and power.

So if we really want to resist, we have to commit ourselves to partnering with groups of people struggling for justice and human rights. 

As Judith Browne, the Director of the Advancement Project, advised me recently, ““Our work is to build power in communities that have unjustly been marginalized.  That was our work before Trump and that is our work after Trump.”

In order to fight for the long run, our hearts must be totally open to tragedy and pain but also totally open to hope and love.  That will take some work, but it can be done.  How?  By focusing not just on issues, which will wear us out, but also focusing on the people in the communities subject to injustice.

Because wherever you find tragedy and injustice, if you take the time to meet and learn from the people involved, you will also find resistance and inspiration and courage and love and hope.

Patrice Cullors recognizes this when she describes the challenges of organizing.  “#blacklivesmatter is a movement attempting to visibilize what it means to be black in this country.  Provide hope and inspiration for collective action to build collective power to achieve collective transformation.  Rooted in grief and rage but pointed towards vision and dreams.”

So, in the age of Trump, our anger at injustice is real.  But, in the spirit of all those who came before us, we will not give up our courage nor our commitment to collective action.  Energized by the hope created by movements for justice we take part in the real resistance.   

Sanctuary Cities Symposium

The University of Detroit Mercy Law Review is pleased to announce its annual academic Symposium to be held on March 23, 2018 at University of Detroit Mercy School of Law.  This Symposium will contemplate a broad range of issues associated with Sanctuary Cities – presentations may focus on a specific era – past, present, or future – or may discuss a subject through the past, present and propose future solutions. Presentation topics could include, but are not limited to:

• The potential consequences of Trump’s immigration policies (including the Muslim Ban);
• The ability or inability of Trump and ICE to carry out these immigration policies;
• The constitutionality of Trump’s and ICE’s policies and actions;
• The efficacy of Program 287(g) and the potential consequences thereof;
• The impact of the Countering Violent Extremism (“CVE”) program;
• The efficacy of states’ Sanctuary legislation, like (pro) California and (anti) Texas;
• The ability or inability of cities and states to provide protection to undocumented citizens;
• The rights that undocumented citizens, particularly youth, should enjoy;
• Strategies and policies that cities and states can adopt to protect their undocumented citizens;
• The potential benefits or consequences for cities and states who adopt Sanctuary laws;
• The consequences for the changes made to the DACA program and possible solutions; and
• The position that SCOTUS would take on these issues, including existing legislation & DACA.

The Law Review invites interested individuals to submit an abstract for an opportunity to present at the Symposium. Those interested should send an abstract of 300-400 words that details their proposed topic and presentation. Included with the abstract should be the presenter’s name, contact
information, and a copy of their resume/curriculum vitae. Since the above list of topics is nonexhaustive, the Detroit Mercy Law Review encourages all interested parties to develop their own topic to present at the Symposium. In addition, while submitting an article for publication is not required to present at the Symposium, the Law Review encourages all speakers who are selected to submit a piece for publication in the 2018-2019 edition of the Law Review. The deadline for abstract submissions is December 3, 2017. Individuals selected to present at the Symposium will be contacted by December 10, 2017. Law Review editorial staff will contact those selected for publication in 2018 regarding details and deadlines for full-length publication. The submissions, and any questions regarding the Symposium or the abstract process, should be directed to Law Review Symposium Director, Jessica Gnitt at [email protected]. Please cc the Detroit Mercy Law Review Editor-in-Chief, Matthew Tapia, at [email protected].

Scholarly Voices: Where We Are On Climate Change and Human Rights

By Prof. Lauren Carasik

 

Syria’s announcement this week that it will join the Paris Agreement leaves the US standing alone in opposing the landmark pact to curb climate change. Nicaragua signed the accord last month after initially objecting that it did not go far enough. As Paula Caballero, director of the climate change program at the World Resources Institute said, “The U.S.’s stark isolation should give Trump reason to reconsider his ill-advised announcement and join the rest of the world in tackling climate change.”  Devastating wildfires and hurricanes linked to climate change did not appear to move the president to revisit his position, as he continues to gut environmental regulations.

Given Trump’s intransigent climate change denial, some observers were surprised that his administration did not attempt to block the release of a report that concludes that the global climate change is being primarily driven by human activities. “It is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century,” the report finds. “For the warming over the last century, there is no convincing alternative explanation supported by the extent of the observational evidence.” The White House did, however, attempt to downplay the report’s findings.

As the Trump administration continues to embrace regressive environmental policies and ignore their staggering impact, the UN Climate Conference COP-23 meets in Bonn from November 6-17 to move forward on global efforts. For that process, five UN experts have urged the centrality of human rights in the implementation of the accord, saying “The needs of the most vulnerable must always be at the forefront as climate finance and adaptation, prevention and resilience measures are decided. The world must also meet its obligations to cooperate across borders and to mobilize all available resources to progressively realize economic, social and cultural rights, and to advance civil and political rights and the right to development.”  The conference is hosting a robust set of workshops exploring the connection between climate change and human rights.

The focus on State responsibility to address climate change is emerging elsewhere as well. The Committee on Economic, Social and Cultural Rights (CESCR) expressed concern last month that the governments of Germany and Argentina are failing to satisfy their obligations to adopt energy policies that adequately prevent climate change under the ICESCR. “The concerns raised by the UN Committee on Economic, Social and Cultural Rights regarding the energy policies of Germany and Argentina highlight that the governments can no longer ignore the adverse impacts of fossil fuels on the climate and human rights – both locally and globally,” said Sebastien Duyck, Senior Attorney at the Center for International Environmental Law. “The CESCR makes clear that the states have an obligation under UN human rights agreements to prevent and reduce additional emissions of greenhouse gases generated by the extraction and combustion of fossil fuels,” he added

Meanwhile, advocates are expanding international climate litigation following a landmark 2015 decision in the Netherlands ordering the government to cut emissions by 25 percent over five years.  Most recently in the US, the Clean Air Council and two children from Pennsylvania filed suit against the Trump administration on November 6.  “The federal government has relied on junk science to implement reckless climate change policies in the face of indisputable U.S. and international scientific consensus,” the Clean Air Council said in a press statement. “These acts of deliberate indifference are increasing U.S. contributions to climate change, thereby increasing the frequency and intensity of its life-threatening effects, and violating the constitutional rights of all U.S. citizens.”  The case follows the lead of 21 young plaintiffs who sued the Obama administration in August, 2015 on a broader theory.  Meg Ward, a spokesperson for Our Children’s Trust, the organization behind the Juliana v. U.S. case, said that “case challenges not just the Trump Administration’s ongoing illegal actions, but also the collective unconstitutional acts of prior administrations that have created the climate danger our youth plaintiffs face today.” That case was temporarily paused by the Ninth Circuit while it considers the lower court decision allowing the case to go forward.

Urgent action is needed, as climate change is already exacerbating the global refugee crisis. “We are the first generation who can choose to be the last.  We are the first generation whose actions can also destroy the planets ecosystems for future generations,” said Kate Gilmore, United Nations Deputy High Commissioner for Human Rights, last month. “Global indifference has poisoned our planet and only global commit can preserve it. Failure to act now to address climate change and its impacts and protect the human rights of all migrants, irrespective of the cause of their movement, will amplify human suffering which we simply cannot permit.”

Please visit Open Global Rights for a series of posts on climate change and human rights.

[Eds. Note:  This post is part of our series of reflections on the past year since the November 2016 election.  Other posts in the series are here, here, here, here, and here .] 

 

 

Scholarly Voices: Displacement

by Davida Finger,  Clinic Professor, Loyola N.O. College of Law

Last week, I attended a tenants’ rights organizing meeting in New Orleans hosted by Jane Place Neighborhood Sustainability Initiative, a local community land trust and housing rights organization. The meeting was held at a library in Mid-City, a neighborhood that is over 50% African American, almost 80% renter occupied, and in which around a third of all households live in poverty. Jane Place, working as both a housing developer and catalyst for tenant organizing, recently built the first community land trust-owned, permanently affordable apartment building in Mid-City to create new housing for low and moderate income renters. It is in the process of launching a monthly tenants’ rights clinic (the Community Justice clinic I teach will lend legal support).

The meeting’s discussion started off with a Q&A with Ms. Viola Francois Washington, a long-time organizer, advocate, and director of the Welfare Rights Organization in New Orleans. As she presented snippets of history on local organizing efforts, and challenges and successes over the last 40 years, Ms. Washington shared various perspectives: “laws were written for landlords, not tenants . . . deal with racism . . .  tenants have to make their own rights . . . and tenants’ rights can be won with organizing, organizing, and organizing.”  I reflected on these thoughts in light of the issues raised in the evening’s conversation which included: renters being priced out (“We are being displaced from our own city”), renters’ struggles to improve laws (“We can never win in court”), and problems with government-subsidized housing (“I’m just tired of all the problems”).

At the Jane Place meeting, I had introduced myself as a lawyer who wants to support the tenant organizing efforts because, after a decade of representing tenants in court, I was certain, as many before me and around me have known, that systemic change will not flow from the courts alone. Ms. Washington reminded me that it has always been so.

The past year has certainly not brought hope and opportunity for renters in the U.S. as families experience unbearable financial pressure. In New Orleans, rent is steadily increasing, neighborhoods have become richer and whiter, a local rental registry initiative to improve habitability standards failed, and legislative efforts to revise the archaic state-wide landlord tenant laws did not make it out of the first committee.

But our local organizing, support for movement work, and community lawyering shape a path for justice and focus our efforts. Just after Trump was elected, New Orleans human rights lawyer Bill Quigley shared the following quote with me.  It was written by Cherri Foytlin, an environmental activist from Louisiana.

“Fear no evil. Joy and Love still live, and it is up to us to build the shelter for the Hope that they provide. Lower those pointed fingers, we will need them to grasp the hammer and forge the nails. Do not give in to your righteous anxieties. Our heroes have never left us. All the good that ever was, it is still here. You were born for this time.”

Scholarly Voices: Hate Speech After Charlottesville

by Barbara Stark, Professor, Hofstra Law, guest contributor*

As Professor Laura Weinrib has explained in her book, The Taming of Free Speech, the ACLU’s defense of Nazi speech began in the 1930s as a strategic choice that the ACLU hoped would benefit emerging labor unions.  Defending Nazis proved that they weren’t Communists.  When the ACLU’s Arthur Garfield Hays was defending a union, opposing counsel tried to discredit him by citing his defense of Communists.  The judge noted that Hays, who was Jewish, had also defended Nazis. “Certainly you cannot accuse Mr. Hays of being a Nazi,” he said.

 But that was then.  After World War II, the drafters of the major international human rights instruments saw how crucial vicious propaganda had been to the Nazis’ genocidal programs.  Representatives of newly independent states, similarly, understood the role of racism in the European colonization of the Third World.  They all agreed that hate speech, including anti-Semitic and racist speech, needed to be restrained. 

Prohibitions against hate speech, accordingly, were included in several major instruments.  The Genocide Convention of 1948 prohibits “[d]irect and public incitement to commit genocide” (Article III(c).  The Convention on the Elimination of All Forms of Racial Discrimination requires States Parties to make punishable “all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof” (Article 4(a).  The International Covenant on Civil and Political Rights provides that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law” (Article 20(2)).

The United States rejected these prohibitions on First Amendment grounds, and took reservations to the hate speech provisions when we ratified these conventions. Several other western democracies were also wary, at least in the early post-war years. The most effective way to counter hate speech was with more speech, we insisted.  Truth would ultimately prevail in the marketplace of ideas.

Over time, the United States reaffirmed the sanctity of the First Amendment, even as those who once agreed with us began to moderate their views. By1969, in Brandenburg v. Ohio, the United States Supreme Court held that the First Amendment protected the Ku Klux Klan’s “incitements to violent racial hatred” because such incitements were not made under circumstances where the audience was likely to immediately act.  As Frederick Schauer explains:

"In the context of hate speech, therefore, Brandenburg stands for the proposition that the United States’ restrictions on the incitement of racial hatred can only be countenanced under the First Amendment when they are incitements to violent racial hatred, and even then only under the rare circumstances in which the incitements unmistakenly call for immediate violent actions, and even then only under the more rare still circumstances in which members of the listening audience are in fact likely immediately to act upon the speaker’s suggestion. "  

      In the 21^st century, the United States has become, not a beacon of hope in a dark world, but a haven for racists, white supremists, Nazis (and purveyors of Nazi memorabilia), and members of the alt-right, like those who convened in Charlottesville.  In contrast, as Professor Schauer notes, “[M]uch of the rest of the developed democratic world has by now carefully considered the American resolution of numerous freedom of expression issues … and has after this consideration deliberately chosen a different course.”

      Thoughtful American commentators argue that democracy requires protection of hate speech because it is up to the people, not the state, to reject it. Professor Robert Post cites “national revulsion” over Charlottesville, for example: “The public could discern the filth beneath their message.”  But even before he finished writing, the President of the United States doubled down, insisting there was “blame on both sides.”

      These are dangerous times.  “Truth” will not inevitably triumph.  The prohibitions against hate speech embraced by the rest of the western democracies are clear, but nuanced.  We should withdraw our reservations to the human rights conventions and join them.  The alternative, in a post-Charlottesville world, is to leave regulation of hate speech to media like Facebook, which has noted that hate attracts a great many hits, and a President who revels in it.

*  The author thanks Ellen Yaroschefsky for organizing the panel "Hate Speech After Charlottesville," held at Hofstra on Oct. 2, 2017,  and  Eric Freedman and Jonathan Lightfoot for their thoughtful remarks. 

 [Eds. Note:  This post is part of our series of reflections on the past year since the November 2016 election.  Other posts in the series are here, here and here.  Stay tuned for more!]

Scholarly Voices: Longing for Soft Misogyny

Editors' Note:  This post is part of the symposium examining where we are one year after the presidential election.

by Prof. Justine Dunlap

Not too long ago, in a galaxy not too far away, I was contemplating some of the improvements in the law, procedure, and culture concerning intimate partner violence. In particular, I was pondering why those improvements had not yielded as much change as one might have hoped and had too often resulted in adverse unintended consequences to the survivor.

I concluded that implicit bias, which for these circumstances I termed soft misogyny, was a primary culprit. One of the solutions, therefore, was for people to start acknowledging implicit bias and to examine ways to counteract it.  Familiarity with the work of Mahjarin Banaji, one of the founders of Project Implicit, made me hopeful. Heck, even the title of the book she co-authored--Blind Spot: The Hidden Biases of Good People—suggested that we could do better. We can become of aware of our biases. Then once aware, we can work to counteract and nullify them.

In this current era, however, with the coarsening of so much discourse and the re-emergence of hard misogyny, I now find myself wishing for “only” soft misogyny.  In our President, we have a man whose objectification of women, even his own daughter, is out in the open for all to see. A man who bragged about sexual assault, dismissed it as meaningless locker-room talk, and was elected president.

The hard misogyny was also clear in the treatment of Hillary Clinton in the presidential race.  Sure, soft misogyny was there too—I had to examine some of my concerns about Clinton to see my own implicit bias was at play. 

But the simultaneous demonization and disqualification of Ms. Clinton by many on the basis of her gender surely flips the switch to hard misogyny. We could start with Ted Cruz’s reference to her deserving a spanking and end a long while later after reviewing the virtually endless sexist and often violent references.  To make matters worse, some of the misogynistic language and behavior seems mild compared to the racial hatred that it is now acceptable to spew.

The President has made division and hatred great again. The “other” looms large as America’s boogeyman. The biases that everyone has are things to be celebrated and revered, not weaknesses to rise above.

 I had harbored hope that the weight of the presidency would sober Trump. That it would call to his better angels. That he would gain awareness of the historical and moral nature of his deeds and words. That he would be more circumspect. I was wrong.  And now I long for soft misogyny.

Scholarly Voices: Where Are We As Lawyers One Year Later?

by Margaret Drew

This post is part of our Scholarly Voices series.  We are exploring how our conditions have changed one year after the Trump election. 

The short answer is:  we are better lawyers.  Past generations of lawyers were challenged to find courage in order to continue fearless advocacy.  The McCarthyism of the fifties and the civil rights movement of the sixties and seventies tested lawyers’ commitment to the rule of law.  In the past year, lawyers of our generation are being tested in much the same way.   The difference is that McCarthyism and the brutality with which civil rights demonstrators were met left no room for moral or legal ambiguity. 

The challenges lawyers face today are not as conspicuous as earlier times.  Today’s threats to lawyering and to law are happening more quietly.  In single instances, lawyers are being threatened by the government.  For example, last week US Marine Corp Brigadier General John Baker was placed under house arrest in Guantanamo.  As one report noted:  “His offense was standing up for the rule of law.”

Baker heads the Guantanamo defense counsel and he disbanded a defense team claiming that the team could not ethically represent the defendant because of government surveillance of attorney-client communications.  The judge hearing the trial ordered Baker to reinstate the team, based upon his opinion that Baker had no authority to take the action he did.  After Baker refused to do so and refused to testify, he was sentenced to 21 days house arrest.  Before a federal court could act on a habeas petition on Baker’s behalf, the Guantanamo judge released Baker. Courage comes in many forms.  This time it came from a military lawyer.

Since last November, lawyers and judges have been on the frontlines of protecting due process and other fundamental rights.  Lawyers and law students responded en mass to represent those affected by the travel bans.  Other lawyers responded to appeals, whether through direct representation or filing amicus briefs. Judges courageously stayed the travel ban and other executive orders.  What remains to be seen is what role SCOTUS will play in efforts to preserving constitutional protections. 

Surely, there is more to come.  But we are ready.  An unintended consequence of the election: lawyer mobilization.