Human Rights at Home Blog

Human Rights Out and About this Spring

Get out your calendars!

-- The Advocates for Human Rights, in Minneapolis, will be holding a "Discover Human Rights" training session on May 3 -4.  Registration information is available here. 

-- The RightsCon summit will be held in Toronto this year, from May 16-18.  More information is available here.  According to the organizers, RightsCon is "the world’s leading conference on human rights in the digital age," bring together "business leaders, policy makers, general counsels, government representatives, technologists, and human rights defenders from around the world to tackle pressing issues at the intersection of human rights and digital technology."

-- Back in the U.S., on May 31, human rights historian Carol Anderson will be presenting the 2018 Kischner Human Rights Memoral Lecture at the University of Chicago.  More information is available here. 

-- The next day, June 1, the Columbia Human Rights Institute will hosts its annual symposium, Advancing Racial Justice and Human Rights:  Rights-Based Strategies for the Current Era.  Registration information is available here.

-- Finally, May 25th is the deadline for submitting presentation proposals to the 2018 UN Forum on Business and Human Rights in Geneva.  Find out more here.

 

Five Things I Don't Like about the Jesner Opinion

by Beth Stephens, Distinguished Professor of Law, Rutgers University, guest contributor

There are so many things I dislike about the Jesner case and last week's Supreme Court decision, I hardly know where to begin.

1.  As someone who has litigated claims under the Alien Tort Statute for almost 30 years, I should start by noting that the little that remains of the statute is hanging by an ever-weaker thread. Two or three justices would either overturn Sosa or gut its holding by rejecting the modern application of the ATS (Justices Thomas, Gorsuch and probably Alito: no surprises there). But Justice Kennedy’s opinion for the five-judge majority, joined in full by Chief Justice Roberts, goes almost as far: Kennedy suggests that the ATS might properly be limited to cases included within the reach of the Torture Victim Protection Act, stating that the TVPA is a model for how to interpret the ATS and that “absent a compelling justification, courts should not deviate from that model” (at 20). He also says that the TVPA’s exclusion of corporate defendants is “all but dispositive” of the question as to whether the ATS excludes them as well (at 20). Kennedy ignores the fact that Congress did not repeal the ATS when it enacted the TVPA and—for those who consider legislative history relevant—stated explicitly that the ATS has “other important uses and should not be replaced.” Kennedy also notes that Sosa itself might preclude recognition of “any new causes of action under the ATS” (at 19)—presumably referring to any claims beyond the historic trio of piracy, violations of the rights of diplomats, and violations of safe conducts. He ignores clear statements in Sosa that other claims are permitted under the ATS. These points in the majority opinion will doubtless be cited in support of an argument that lower courts should decline to hear any modern ATS claims at all.

2.  I might take some consolation from the fact that the opinion is limited to foreign corporate defendants and does not decide whether U.S. corporations can be sued under the ATS. But Kennedy says there is a strong argument that the ATS does not apply to any corporate defendants (at 13). It seems quite likely that lower courts may read the opinion as suggesting that claims under international law should not be extended to any corporations, particularly given that, after this decision, corporations will surely argue that a contrary holding would put U.S. corporations at a disadvantage as compared to foreign corporations.

3.  The majority opinion’s treatment of corporations is galling. Let’s pause a moment to pity those artificial entities, helpless as they are in the face of misconduct by humans—how shocking to hold them responsible for what Kennedy labels “human rights crimes committed by their human agents” (at 11). Kennedy repeatedly uses a similar formulation, as if to imply that corporations are being unfairly saddled with responsibility for the acts of the hapless humans they employ. No, corporations do too much good in the world, particularly by investing in developing economies (at 24, 28), to be hamstrung by the liabilities incurred by their human employees. The Court rejects as outside its competence any recognition that corporations are legal entities that should be held liable for all violations of law. This is a far cry from Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), when the Court recognized the personhood of corporations under a Constitution that was drafted and ratified at a time when the modern limited liability corporation didn’t exist. Oops. That was a case about empowering corporations. This one is about freeing them from constraints. Different facts, different results.

4.  The opinion is a dismal reminder of all of the ways in which the Supreme Court has cut back on civil litigation in general, and particularly against corporations, including limiting personal jurisdiction over corporations, imposing a heightened presumption against extraterritoriality, and tightening pleading standards. Even before Jesner, very few ATS claims had survived.

5.  And finally, there are the many ways in which I see Jesner as a product of a climate in which anti-Palestinian bias and anti-terrorism hysteria has warped the law and the fight for accountability. I helped draft an amicus brief in this case filed by the Center for Constitutional Rights in support of neither party, out of concern that the case reflects the special treatment given to claims of terrorism as compared to other human rights violations and could exacerbate the devastating impact that the “war on terrorism” has had on human rights around the world. I feel for all survivors of human rights violations and fight for accountability and redress for all. But I think it important to recognize the danger of privileging claims that assert human rights violations by groups our government has chosen to label “terrorists.”

[Eds. Note:  This is the second in a series of commentary on the Supreme Court's ruling in Jesner v. Arab Bank.  The first commentary, by Professor Jena Martin, is here.]

 

#MeToo and Gender Violence Convictions

Bill Cosby was found guilty on three counts of aggravated indecent assault.  This verdict came at the end of a second trial, the first one having ended in a mistrial last year.  What happened in between?  Certainly the lawyers had time to organize their better cases.  Witnesses had time to prepare for the emotional strain of testifying in a highly publicized trial.  But was there also a cultural shift?

Sisters organized beginning with the Women's March.  #MeToo and Times Up happened.  Both men and women began to believe women leading media to speculate that the verdict reflects the impact of the #MeToo movement. 

What is speculative is whether this case will translate into a higher rate of convictions in sexual assault cases generally.  This may be unlikely.  During Cosby's second trial, several women testified as to Cosby's pattern of assaults.  This is a result that is unlikely happen in other jurisdictions where establishing a pattern of behavior is not generally permitted in criminal trials. 

In order to create an effective shift on the criminal law side, prosecutors must have a sincere and educated interest in trying the difficult cases.  Prosecutors must find effective ways to persuade jurors to believe women and understand trauma.  One ingredient in creating a possible a sea change in sexual assault prosecutions would be to have trauma experts not only testifying in sexual assault cases, but working with prosecutors as cases are planned.  If history is any guide, states will be unwilling to commit the resources to support effective prosecution.  Sexual assault survivors are reluctant to report, let alone prosecute, the crimes committed against them.  When we begin to see improved results for women in local prosecutions, then we can credit the movement in creating a broader culture shift.  Until then, we know #MeToo remains effective in exposing celebs.

Human Rights of Detained Immigrants

Check out human rights lawyer Azadeh Shahshahani's powerful piece in Salon on immigrants in ICE detention centers.  Shahshahani is the Legal and Advocacy Director of Project South, a Southern-based leadership development organization that supports movement building.  The 2017 report on Georgia Immigration Detention Centers by Project South and the Penn State Law Center is available here.  A few months after that report, US government inspectors also expressed alarm at immigrant detention center conditions.  As Shahshahani points out in her piece, the Supreme Court's recent ruling that immigrants may be held indefinitely without bond will only exacerbate these serious human rights issues. 

Rooting for the Home Team: Jesner shows how Foreign Corporations can benefit from American Ideology

by Jena Martin, guest contributor, Professor, West Virginia University College of Law

Today, Justice Kennedy writing the plurality opinion for a splintered court, held that foreign corporations who commit human rights violations cannot be sued under the Alien Tort Statute (the ATS).  In doing so, the court effectively ended a twenty-two year old strategy  used by human rights advocates – namely using U.S. civil litigation to bring redress for victims of business and human rights violations.

Writing for a fractured court (the majority opinion was limited to section I, Section II B-1 and Section II-C of Kennedy’s opinion), Justice Kennedy made an explicit distinction between natural persons and corporations as defendants for the purposes of ATS liability. In that regard, much of the majority opinion seems to be devoted to answering the question Justice Ginsburg asked during oral arguments in this matter, a question that remains relevant today: “why you would split individual and corporation [in ATS litigation]?”  Specifically, while Justice Kennedy acknowledged that “ ‘the singular achievement of international law since the Second World War has come in the area of human rights,’ where international law now imposes duties on individuals as well as nation-states,” he goes on to argue that this principle of individual liability does not extend to corporations to the level that he argues is necessary under the standard set out in the court’s Sosa opinion (namely that the principle be “specific, universal and obligatory”).  Instead, Justice Kennedy finds enough disagreement in the organizing statutes of enough tribunals to find a distinction between corporations and natural persons under current international law.

In a previous blog, I noted that during oral arguments three of the court’s more conservative members: Roberts, Alito, and Gorsuch, explicitly raised issues that would limit ATS’s reach: (1) the scope of extraterritoriality; (2) the prospect of foreign entanglement; and (3) the foreign nationality of corporations.  All of these find purchase here.  For instance, the Court notes that part of the reason for limiting the use of ATS against foreign corporations is to reduce the diplomatic challenges that he claims have arisen because of this litigation. However, as Justice Sotomayor points out in her dissenting opinion (in which Justices Ginsburg, Breyer and Kagan joined) “none of those objections was about the availability of corporate liability as a general matter. (Dissent at 21). 

But, in the end, it appears that the Court’s opinion comes down to thinly disguised American Exceptionalism.  Justice Kennedy makes this position clear.  Despite exhortations earlier in his opinion that the “principle and commitment [to human rights] support the conclusion that human-rights norms must bind the individual men and women responsible for committing humanity’s most terrible crimes” (Opinion at 14), Kennedy would subsume this commitment under a seemingly more pressing concern.  As he notes on p. 24 of his opinion “[i]f . . . the Court were to hold that foreign corporations may be held liable under ATS, that precedent setting principle ‘would imply that other nations, also applying the law of nations, could hale our [corporations] into their courts for alleged violations of the law of nations.”  U.S. Corporations 1. Everyone Else 0.

State Department Backs Away from Women's Human Rights

Last Friday, the U.S. State Department released its annual human rights report.  Among the changes from prior years was the elimination of "reproductive rights" as a category for reporting; since 2012, that category had examined access to contraception and abortion, as well as more general issues  of maternal health.  Instead,  the most recent report identifies "coercion in population control," i.e., coerced abortion and involuntary sterilization, as the sole indicator of human rights in this arena.

In a press briefing on the release of the report on Friday, Ambassador Michael Kozak, the top official in the State Department Bureau of Democracy, Human Rights, and Labor, cautioned against reading too much into the deletion of the “reproductive rights” term.  He claimed that "[i]t’s not a diminishment of women’s rights or a desire to get away from it; it was to stop using a term that has several different meanings that are not all the ones we intend.” 

Referring to abortion, Kozak added, “[w]e don’t report on it because it’s not a human right.  It’s an issue of great policy debate.”

It would be a mistake for domestic advocates to view these changes as only significant in the international arena.  The State Department's human rights report is a signature, official statement of US policy.  By denying the human rights import of reproductive rights, the report attempts to redefine the domestic debate as well. 

The Supreme Court has affirmed again and again that reproductive choice, including abortion, is a fundamental right, albeit one that is subject to an undue burden test rather than strict scrutiny.  Under current domestic law, the tasks of identifying fundamental rights and evaluating violations of such rights are clearly within the purview of courts; legislative branches cannot impinge on fundamental rights. 

In contrast, "[i]ssues of great policy debate," as Ambassador Kozak termed abortion, are for the elected branches to resolve.

The Center for Reproductive Rights has criticized the State Department report, noting that the scope of reproductive rights -- including "the right to decide the number, spacing, and timing of their children; manage their reproductive health and have access to the information and means to do so” -- is well-established under international human rights law.  By terming this issue a "policy debate," the State Department attempts to unilaterally re-define human rights in both the international and domestic arenas.  

     

 

Can Universities Ever Do The Right Thing?

Editors' note:  In this post Prof. Dunlap reflects on essential conflicts of interest faced by universities when risk management is a factor in determining how to proceed with Title IX complaints.

by Justine Dunlap

 The March 26 arrest of William Strampel, the former dean of Michigan State University’s College of Osteopathic Medicine, served as a vivid reminder of the poor decision-making that occurred at MSU regarding serial abuser Larry Nassar. It turns out that as early as 2004—two years into Strampel’s tenure as Dean and 10 years before he was put in charge of ensuring that protocol regarding Nassar’s contact with gymnasts was followed—a memo voicing concern about Strampel’s behavior was sent to Lou Anna K. Simon. Simon was then the MSU Provost and went on to become MSU president; she stepped down on January 24, 2018, the same day as Nassar’s sentencing.

Hindsight is, of course, 20-20. Further, the Me Too Movement has heightened awareness of the ubiquity of sexual harassment. And it is likely not possible to know what action, if any, Simon took against Strampel. What we do know, however, is that it was wildly inappropriate to have Strampel providing oversight for Nassar.

So it is worthwhile to examine subsequent efforts by MSU undertaken after its 2014 Title IX investigation resulted in Nassar being permitted to seeing patients again. One such effort was the university’s hiring of famed former prosecutor Patrick Fitzgerald—apparently at $990 hour—to, in Fitzgerald’s words, “assist MSU in responding to allegations of misconduct concerning” Nassar. These allegations re-emerged after a 2016 investigative series from the Indianapolis Star newspaper.

Surely, the university ought not be criticized for doing risk management--although the choice of a law firm that billed the public university close to $4.1 million is open to question. Of more concern is the misimpression in the minds of many that Fitzgerald was doing a thorough review of what went wrong. It is now clear that was not what Fitzgerald was retained to do. His work did not even result in a written report, Fitzgerald told Michigan Attorney General Bill Schuette in response to Schuette’s request for the production of any report.

Now that the Attorney General has appointed William Forsyth as a special prosecutor to investigate MSU’s mishandling of the case, there is hope for an independent investigation. And indeed it is Mr. Forsyth’s investigation that has led to the criminal charges filed against former Dean Strampel in March. Who knows what will follow? Can we hope that part of Forsyth’s investigation will serve as a template on the mistakes a university should avoid. Or is it too much to hope that an institution focused on liability can ever do the right thing?

The Long Arc of Human Rights: A Case for Optimism Part III

Prof. Carrie Bettinger-Lopez concludes her observations on the case for hope.  Prof. Betttinger-Lopez reflects on Katheryn Sikkik's book, Evidence for Hope.  Part I may be read here, and Part II here.

 

For the most part, Sikkink does not sugarcoat the challenges facing the human rights movement. Trump’s nativist agenda, hateful rhetoric, and professed enthusiasm for torture techniques “a hell of a lot worse than waterboarding” have rightly alarmed U.S. human rights advocates, provoking fears of backsliding at home and emboldening bad actors around the world. Last December, the UN’s top human rights official, Zeid Ra’ad al-Hussein, who had expressed concerns about the Trump administration and other potential sources of harm to the human rights regime, announced his unusual decision to not seek a second term, saying it “might involve bending a knee in supplication.” 

But Sikkink remains optimistic. She argues that the fight for human rights has taken on a new dimension as developing countries have joined the fray in ways that do not depend on Washington. “Human rights work in the coming years of the twenty-first century may look very much like the Cold War period,” she writes, when “the major powers were mainly in opposition to the international protection of human rights and where momentum and progress depended on the actions of smaller countries, with support from emerging NGOs and civil society.” But she also notes an important distinction between the two time periods: today, “these small countries and activists have far more institutional resources at their disposal—the human rights law, institutions, and movements that earlier activists created in the mid- to late twentieth century.”

Everyone should hope that Sikkink is right. Human rights organizations based in the developing world have evolved significantly over the past few decades, and Sikkink cites a study showing that they are increasingly trusted by citizens and are not perceived as the “handmaidens” of powerful donor countries. Such groups could become highly effective in mobilizing support for human rights in an era of populist nationalism and rising authoritarianism. But they and their counterparts in the developed world will need to craft customized solutions that do not rely solely on established practices. The kind of “boomerang” that has worked in the past may not always be the right tool—especially if powerful figures in Washington are not interested in listening to world opinion.

Editors' Note:  This essay was published in Foreign Affairs.

 

The Long Arc of Human Rights: A Case for Optimism, Part II

Prof. Bettinger-Lopez continues her thoughts on a case for optimism in these difficult times. Her reflection addresses Evidence for Hope, authored by Kathryn Sikking. Part I was posted yesterday.  

Among Kathryn Sikkink’s aims is to defend the institutions and movements that have supported the concept of human rights, which together are often described as “the human rights regime.” Sikkink takes issue with scholars and activists who fault the human rights regime for failing to produce a “maximum ideal of justice” but who do not offer alternative approaches that are “within the realm of the possible.” The human rights movement should be praised, she contends, for “widening the limits of the possible,” thereby changing what is probable. In an earlier book, The Justice Cascade, Sikkink showed how that process can work by tracking how the idea of individual accountability for human rights violations gained a foothold and led to an increase in criminal prosecutions for such wrongdoing. In her new work, she traces the diverse origins of the modern human rights movement and the pivotal contributions of people and organizations from the developing world, especially Latin America. For instance, she describes the successful efforts of Latin American jurists and diplomats to include seven references to human rights in the 1945 UN Charter, including one that describes the promotion of human rights as one of the basic purposes of the organization, in spite of resistance from the great powers. This history, she contends, contradicts common critiques of human rights law as a tool of Western imperialism. 

Sikkink’s main goal, however, is to identify and quantify the improvements that she argues have come about as a result of the human rights regime: a decline in genocide and “politicide” (which Sikkink defines as politically motivated murder by a government), fewer international and civil wars, a reduction in battle deaths and civilians killed in war, less frequent use of the death penalty, and dramatic gains in women’s rights. Some of her arguments are more convincing than others. In one of the book’s most compelling passages, she charts the undeniable correlation between the campaign that Amnesty International launched against the death penalty in the late 1970s and the global trend toward the abolition of capital punishment. In 1977, only 16 countries had abolished the death penalty; today, that number has increased to 140—nearly two-thirds of the countries in the world. However, she does not explicitly connect the dots between Amnesty International’s campaign and the abolitionist trend, leaving the reader wondering whether the move away from capital punishment may have stemmed from other sources—for instance, the effect of DNA science in exposing wrongful convictions.

Sikkink’s attribution of worldwide declines in genocide, politicide, and other acts of violence to the human rights regime at times feels even more forced. Although she acknowledges that “explanations for improvements in core human rights issues like genocide are complex,” she suggests that human rights ideologies and criminal prosecutions—rather than, say, improvements in medicine or more targeted weaponry—best explain the worldwide decline in war crimes. More plausibly, she cites research that suggests “that the rise in improved military medicine is in itself an aspect of the humanitarian ideals that some authors argue have contributed to the decline in war.” Indeed, states have arguably developed more targeted weapons in order to avoid civilian casualties—a concern that derives, in part, from the rise of the human rights movement.

Part of what distinguishes Evidence for Hope is Sikkink’s thoughtful examination of the role that data and quantitative research play in debates about progress on human rights. In the information age, people know and care more than ever before about human rights—but, she contends, that does not necessarily lead to a better understanding of the state of freedom in the world. Activists, by disseminating information about human rights abuses, often inadvertently create the impression that things are getting worse. Owing to the greater availability of information, it is easier than ever to conclude that the world faces graver human rights problems today than in the past. But the fact that people can now see more easily when, where, and how human rights have been violated does not mean there is more suffering today, Sikkink contends. Drawing from political psychology, she also argues that certain cognitive biases make humans prone to pay more attention to negative than positive information. Activists capitalize on that tendency—understandably, Sikkink concedes—by “naming and shaming” bad actors far more frequently than they praise governments or highlight progress. 

“Perhaps,” she suggests, “human rights activists should rely less on information politics, less on so-called ‘naming and shaming,’ and more on what we might call ‘effectiveness politics’—identifying techniques and campaigns that have been effective at improving human rights.” In other words, organizations might have a greater impact by putting together a letter-writing campaign, staging a concert, or piggybacking on existing legislative initiatives, rather than releasing yet another report or press release. 

Another mark of progress on human rights is the way in which the movement has expanded beyond its traditional boundaries to address a growing number of abusive and criminal behaviors that infringe on basic liberties and freedoms. Take domestic violence, a seemingly intractable problem that, until relatively recently, few recognized as a human rights issue. That has changed in the past decade as activists and lawyers, including me, have used human rights advocacy to improve how law enforcement authorities respond to domestic violence. My principal avenue for doing this work has been through representing a Colorado woman named Jessica Lenahan (formerly Gonzales), whose tragic story has become a landmark human rights case. In 1999, Lenahan’s three young daughters were abducted by her abusive estranged husband (and the girls’ father), Simon Gonzales, in violation of the terms of a judicial restraining order that severely limited his access to them. Although Lenahan repeatedly called the police, telling them she feared for her daughters’ safety and at one point identifying their location, the police ignored her. The dispatcher who took her call even chided her for being “a little ridiculous,” a sentiment subsequently echoed by the town’s police chief in an interview with 60 Minutes. Nearly ten hours after the abduction, Gonzales, armed with a semiautomatic handgun, drove his truck to the police department and opened fire. The police shot him dead and subsequently discovered the deceased bodies of the three girls inside his truck. But local authorities did not conduct a proper investigation into the children’s deaths, resulting in uncertainty about when, where, and how they died.

Lenahan filed a lawsuit against the town of Castle Rock, Colorado, in federal court, claiming that the police violated her constitutional due process rights when they failed to meaningfully respond to her calls for help. The case eventually landed at the Supreme Court, which ruled in 2005 that she had no constitutional right to have her restraining order enforced by the police. Having exhausted her domestic remedies, Lenahan filed a petition later that year with the Inter-American Commission on Human Rights (IACHR), an organ of the Organization of American States. She alleged that the United States, whose criminal justice system had failed to protect her and her daughters from acts of domestic violence, had violated her human rights under the American Declaration of the Rights and Duties of Man, which is a source of international obligations for the 35 members of the OAS (including the United States). Lenahan’s was the first international human rights case brought by a victim of domestic violence against the United States.

In many respects, the Lenahan story fits what Sikkink, in Activists Beyond Borders (an earlier book she co-wrote with Margaret Keck), dubbed “the boomerang effect” of human rights advocacy, which holds that when civil society groups and activists fail to persuade their government to take action or change its policy, they often find international allies who can exert external pressure and contribute to at least a partial victory. In Jessica Lenahan (Gonzales) v. United States of America, the IACHR found that the local authorities were “not duly organized, coordinated, and ready to protect these victims from domestic violence by adequately and effectively implementing the restraining order,” which the commission declared was a violation of the American Declaration of the Rights and Duties of Man. The commission went on to recommend that the United States investigate the systemic failures that took place, adopt legislation at the federal and state level to protect women and children from imminent acts of violence, and continue to adopt public policies aimed at shattering stereotypes of domestic violence victims. 

 In the years since, the Lenahan case has been cited in international and domestic case law and legislation throughout the world. And although the U.S. government, which has not ratified most major international human rights treaties, officially rejected the IACHR’s decision on technical and jurisdictional grounds, the decision has had an undeniable effect on U.S. federal policy and law enforcement. Beginning in 2011, the U.S. Department of Justice began stepping up its investigations into discriminatory law enforcement responses to domestic violence and sexual assault in several cities—the exact type of government action that the IACHR had called for—without ever explicitly connecting this work with the Lenahan case. Then, in 2015, U.S. Attorney General Loretta Lynch released official guidance to law enforcement agencies on how to prevent gender bias in their response to such crimes—a step originally proposed by advocates who supported Lenahan’s lawsuit. A year later, the Department of Justice established a nearly $10 million grant program to implement the guidance nationwide. The boomerang that Lenahan had tossed had returned to the United States, even if the government did not explicitly acknowledge it.

This essay concludes tomorrow with a look at hope.  This essay was first published in Foreign Affairs.  

The Long Arc of Human Rights: A Case for Optimism Part I

Editors' note: Prof. Carrie Bettinger-Lopez writes this essay discussing optimism in the a difficult human rights era.  Below is part one of a three part series.

By Carrie-Bettinger-Lopez

Does fighting for human rights actually make a difference? Scholars, policymakers, lawyers, and activists have asked that question ever since the contemporary human rights movement emerged after World War II. At any given moment, headlines supply plenty of reasons for skepticism. Today, the news is full of reports of Rohingya refugees fleeing a campaign of murder, rape, and dispossession in Myanmar; drug users dealing with brutal, state-sponsored vigilantism in the Philippines; and immigrants and minorities facing the wrath of extreme right-wing and populist movements in European countries and the United States. It is easy to succumb to a sense of despair about the laws and institutions designed to protect human rights.

In 1968, the legal scholar Louis Henkin wrote that “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” Subsequent empirical studies, primarily in the fields of international trade and international environmental law, have confirmed Henkin’s qualified optimism. But in the field of international human rights, empirical studies have sometimes led to more pessimistic conclusions. In a 2002 article in The Yale Law Journal, for instance, the legal scholar Oona Hathaway concluded that “although the practices of countries that have ratified human rights treaties are generally better than those of countries that have not, noncompliance with treaty obligations appears common.”

Hathaway and others who have analyzed international human rights regimes have generally focused on the efficacy of specific laws, institutions, or methodologies: for example, the number of human rights treaties that a given country has ratified, the existence of domestic legislation that reflects international norms, or the presence of national human rights institutions. But few have stepped back and considered the overall impact of the broader international human rights movement. In her new book, Evidence for Hope, the political scientist Kathryn Sikkink fills that gap—and the news, she reports, is better than one might fear. Drawing on decades of research into transnational civil society networks and international institutions, Sikkink counters skeptics from the left and the right who have argued that the persistence of grave human rights violations throughout the world is evidence that the international movement has failed and should be abandoned altogether. On the contrary, she concludes, the struggle for human rights has indeed made a difference: “Overall there is less violence and fewer human rights violations in the world than there were in the past.”

Sikkink contends that skeptics have relied on the wrong metrics to measure progress and have failed to see shifts in the human rights movement that have made it more durable. She is even relatively bullish about the prospects for continued progress in the Trump era. In this way, she distinguishes herself from the many activists and scholars who fear that the populist nationalism that helped put Donald Trump in the White House could reverse hard-fought human rights gains of the past few decades, both in the United States and abroad.

The essay continues tomorrow.

This essay first appeared in Foreign Affairs

Lawyers' Shared Responsibility for Defending Human Rights and the Rule of Law

A recent ABA Journal featured a cover story on women human rights lawyers.  I'm sure that many of us have noted that there are a lot of women in the human rights field.  One of the lawyers profiled, Sarah Belal of the Justice Project Pakistan, observes “I don’t think that’s a coincidence that women engage in human rights law and stick around with it longer."  She adds, “Work in human rights law is thankless. Women are better at being resilient and getting through that, and [it comes] at a huge personal cost.”

Whether you agree with this essentialist view or not, the three women  profiled in the piece -- Belal in Pakistan, Azadeh Shahshahani in Atlanta, and Kimberley Motley of Afghanistan -- are all doing incredible work against long odds, and deserve recognition for their sacrifices and commitments.

Reading this article, however, also reminds us how much more difficult their work as human rights lawyers would be in the absence of the rule of law, which supports each of their efforts to expand human rights for individual clients and marginalized groups. 

In the U.S., the "rule of law" has often referred to casually, as a given in the American governance system.  But today, as the basic precepts of the rule of law are one by one dismantled by the current administration -- through conflicts of interest, bullying tweets, abuses of executive power, and criminal cover-ups -- we can no longer take the rule of law for granted.  

It's important to remember, then, that domestic human rights lawyers have a critical role to play in vocally defending the rule of law at home as well as abroad -- i.e., defending judicial independence and limits on executive power, doing everything we can to implement human rights through courts and legislative initiatives, using skills of framing and persuasion to shift the conversation and public opinion along with it. 

For certain, there are many women who have provided leadership on these issues in the human rights community.  Thank goodness for all of them.  Still, the "thankless" task of defending human rights and the rule of law is work for everyone.  

 

 

 

Global Justice for Indigenous Languages

The Columbia University Institute for the Study of Human Rights is hosting a full-day symposium on Global Justice for Indigenous Languages on April 21.  

According to the organizers, 

"The program takes the social fact of the disappearance of languages—and the diversity of cultural lifeworlds these embody—as the occasion for a broader set of reflections on the question of language justice.

Our aim for the “Global Justice for Indigenous Languages” symposium is to bring to the forefront the critical work done by researchers, educators, institutions, organizations, and communities; work that is necessary to make meaningful headway in actualizing language justice. The symposium will be organized around the major topics of indigenous languages in education, language revitalization, and encouraging case studies. Participants will also be asked to contribute ideas and recommendations on steps forward and synergies towards justice for indigenous languages.

This symposium is open to academics, representatives of indigenous peoples’ organizations and nations, states, non-governmental organizations, and intergovernmental organizations."

Pre-registration is required and space is limited.  More information is available here.

 

Will #MeToo Impact Employment Discrimination Cases?

Employment discrimination cases are vulnerable to dismissal on motions for summary judgment.  Severe sexual harassment has been routinely determined to be insufficient to warrant a jury trial, the judge determining that the claim would not survive the jury. Professor Suja Thomas has studied and written on this topic.  Prof. Thomas reports that 70% of sex discrimination employment cases are dismissed in whole or in part.  Some of the examples given by Prof. Thomas are: 

"Co-workers and a supervisor engaged in conduct toward a female employee, such as making comments about the worker’s breasts, requesting to lick whipped cream and wine off of her, and rubbing her shoulder, arms and rear end; a supervisor asked a female worker to go to hotel room and spend the night with him, asked her for a sexual favor, constantly referred to her as “Babe,” and unzipped his pants and moved the zipper up and down in front of her; a supervisor told a worker she had been voted the sleekest posterior in the office and on another occasion deliberately touched her breasts with some papers he held in his hands." 

In an editorial published last fall in the San Francisco Chronicle, Prof. Thomas and her co-author David Lopez, former general counsel for the EEOC, do a good job of explaining how this legal phenomenon happens within the federal system.  

Historical barriers are preventing women from the full experience of legal recourse.  Difficult to parse is when judges review the pleadings which stereotype is at play.  Is it that women are believed to lie?  Women should just stop complaining and deal with the harassment?  Or that the offenses are excused as "boys will be boys" and that the damaged claimed is exaggerated.

Will #MeToo encourage change?  That remains to be seen.  But it is not difficult to imagine that the movement will at least prompt some judges to pause and examine the connection between the movement and the employment cases coming before the court.

 

Cities for CEDAW, Coming Soon to Your Town!

When the Cities for CEDAW campaign was launched at the UN Commission of the Status of Women meeting in 2013, it aimed to enlist 100 cities within a year.  That ambitious effort fell short, but the Cities for CEDAW effort has kept up the momentum in the subsequent years, with consistent gains across the country 

Maybe Chicago -- which has not yet joined the other major cities on the roster like Los Angeles, Pittsburgh, and San Francisco -- will be next.  On April 27, at 6 p.m., the UN Association of Chicago will sponsor a panel discussion on Cities for CEDAW, and why the movement is important.  More information on the event is here.  If you live or work in Chicago, try to attend.  And if you have friends in Chicago, let them know. 

But if you're not in Chicago, don't mourn.  Think about how to connect with interested folks in your own town or city.  UNA Women is actively promoting the Cities for CEDAW campaign nationwide, and they have chapters in many cities across the country.   

If you want to know more about the campaign, a new article by Dr. Malliga Och of Idaho State University, in the March issue of the International Feminist Journal of Politics, examines the movement. Here's the Abstract for the article "The Local Diffusion of International Norms: Understanding the Cities for CEDAW Campaign":

While the international human rights norm literature has revolved mainly around the diffusion and implementation of human rights at the national and global level, less is known how international human rights norms are adopted on the local level. To fill this gap, this article will focus on the Cities for Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) campaign which encourages cities in the United States to adopt ordinances incorporating principles set forth by UN CEDAW. This article will analyze how the Cities for CEDAW campaign frames international gender norms to make them relevant in local contexts. Drawing on original interviews with Cities for CEDAW activists, this article will further our understanding how local human rights activists can utilize international human rights treaties to integrate human rights norms on the local level.

 

Mountain View Approves Human Rights Pilot Program with Support of Human Rights Clinic Law Students

Editors' Note:  Prof. Francisco Rivera of Santa Clara Law School sends this report of Mountain View, CA's implementation of the Human Rights Cities Resolution enacted in late 2016 through the efforts of Prof. Rivera and his clinic students.

On April 3, 2018, the City of Mountain View, CA, voted to approve a pilot program to conduct a human rights impact assessment of city projects, based on materials and support provided by Santa Clara Law’s International Human Rights Clinic. Law students Osvaldo Hidalgo Otamendi and Antonia Ruck, as well as Clinic Director Francisco Rivera, spoke at a public meeting of the City Council of Mountain View in support of this human rights pilot program.

The pilot program identifies three specific city projects that would be well-suited for a human rights impact assessment. According to the City Council staff report, the projects identified as “Short-Term Rental Regulations”, the “East Whisman Precise Plan” and “Vision Zero” align well with the following four issues of concern highlighted by the city’s Human Relations Commission: (1) housing displacement; (2) housing affordability; (3) social equity, and (4) economic prosperity.

This initiative is based on a resolution that was passed by the Council in 2016, which adopted the rights recognized in the Universal Declaration of Human Rights as guiding principles and declared the City of Mountain View to be a Human Rights City. The International Human Rights Clinic at Santa Clara Law was actively engaged in the process that led to this resolution, providing technical expertise and support.

At the public meeting on April 3, the City Council requested feedback from the community. Jule Solomon, who is a member of the city’s Human Relations Commission, was the first to speak in favor of the project. SCU Law student Osvaldo Hidalgo Otamendi addressed the Council next and stressed the importance of this pilot program as a way to protect human rights. Highlighting Mountain View’s proactive attitude towards human rights, which the Council had shown by declaring Mountain View a Human Rights City, Osvaldo encouraged the city to take this next step and apply a human rights impact assessment through a pilot program.

SCU Law student Antonia Ruck spoke about the importance of assessment tools to ensure support for human rights. As an international exchange student, she also emphasized the global influence of Silicon Valley as a leader in the world economy and in the promotion of progressive ideas. Lastly, Professor Francisco Rivera presented potential alternatives for the successful implementation of the pilot project and offered further support from the Clinic. He also highlighted the goal of human rights impact assessments, which is for the City Council to make more informed and considered decisions. As a human rights expert, Prof. Rivera also answered further questions from Council members.

In the discussion that ensued, Council members debated about the need for such a pilot project, with passionate speeches in support of the proposals from former mayor Ken Rosenberg and current mayor Lenny Siegel, among others. Councilmember John McAlister questioned the benefit of assessing the human rights impact of the city’s projects, while Councilmember and Vice Mayor Lisa Matichak expressed discomfort with the proposal based on her reading of the broad set of rights recognized under the Universal Declaration of Human Rights.  Councilmember Abe-Koga opined that the proposed projects should address other or additional human rights issues than those recommended by the Human Relations Commission. Ultimately, most members expressed their support for the pilot project and voted 6-1 in favor of the proposal, with Vice Mayor Lisa Matichak being the only vote against it.

 The Clinic enthusiastically welcomes this outcome and congratulates the City Council for its decision. The Clinic will continue to work with the city to provide technical assistance and support on the implementation of this human rights impact assessment program.

State Remedies for Human Rights -- New Scholarship

Professors Seth Davis and Christopher Whytock have authored "State Remedies for Human Rights" in the current issue of BU Law Review -- an article that is particulate pertinent as advocates wait for the Supreme Court's decision in this term's Jesner v. Arab Bank (any day now!) .

Here's the Abstract:

Abstract

Within the United States, states are the source of remedies for most legal wrongs. State law provides remedies for common law torts, statutory violations, and constitutional rights, and state courts are available to parties seeking these remedies. May states also provide remedies for the victims of international human rights violations? With the Supreme Court closing the door on human rights litigation in U.S. federal courts under the Alien Tort Statute, and with plaintiffs therefore turning to state courts and state law to redress violations of international human rights, this question has become especially important.

The dominant view among courts and commentators, however, treats human rights remedies as a foreign relations function committed to the federal government. If the federal government decides not to provide these remedies, then, this view holds, states must not provide them either.

This Article challenges that position. It argues that states may provide remedies for international human rights, much as they do for torts and civil rights. States provide law and courts for the redress of wrongs as a matter of course, particularly the types of torts that most human rights litigation addresses. Within the federal system, states have independent authority to provide remedies for legal wrongs. State courts and state law therefore play a fundamental role in fulfilling the aspiration that rights entail remedies. Under state law, federal law, and international law, states have a recognized interest in providing redress for human rights violations. And in many cases, a state’s interest in providing remedies for human rights violations will outweigh the business or foreign relations costs of human rights litigation that are often invoked to deny remedies.

This Article’s theory of state remedies for human rights has doctrinal and normative implications. The proper application of various doctrines that may limit access to state courts or the application of state law requires explicit consideration of the state interest in providing remedies for human rights. Normatively, this Article’s theory of state remedies for human rights provides a justification for doctrinal changes in order to accommodate that interest.

Expanding Accountability: A New Paradigm

Prof. Justine Dunlap continues her series on the repercussions of the Larry Nassar sexual assault case.

Enough is enough. When a man now charged with sexual crimes was the one put in charge of monitoring serial sexual abuser Larry Nassar, it gives foxes who are in charge of the henhouse a bad name. In the present whirlwind news cycle, which over the past few weeks was surely whipped into a feverish state, one could be forgiven for missing the arrest of William Strampel, age 70, the former dean of Michigan State University’s College of Osteopathic Medicine. Strampel was arrested and detained overnight on March 26th on a four-count criminal complaint that includes an allegation that he did not enforce protocols put into place by the university to guard against further offenses by Nassar.  

In his decanal role, Strampel supervised the MSU Sports Medicine Clinic where Nasser abused girls and young women. This supervision was especially key after a 2014 investigation into complaints against Nassar resulted in the university requiring, among other things, that Nassar conduct “procedures of anything close to a sensitive area[]” only with another person present. Sadly, we now know that having an adult in the room did not stop Nassar, who abused his victims while they were covered up with items such as towels.  But perhaps if Nassar thought the adopted protocol, which was also sent to a person in the university’s Title IX office, would be rigorously enforced, he might have ceased his activities for fear of actual apprehension. But Nassar may well have known that he had little to fear from Strampel’s oversight. After all, since Strampel said during a 2016 meeting concerning that he didn’t “think any of the[] women were actually assaulted by Larry,”  one can only wonder what he said privately to Nassar.

The charges were brought by William Forsyth, the special prosecutor appointed by the Michigan Attorney General to investigate how MSU may have botched its handling of the Nassar affair. In addition to counts related to improperly supervising Larry Nassar, Strampel has also been charged with sexual misconduct of his own, based on a long pattern of degrading, intimidating and sexualizing female medical students. Additionally, nude pictures and pornographic videos were found on Strampel’s MSU work computer. Suffice it to say that, in light of these allegations against Strampel, it appears that the university placed one predator in charge of monitoring another predator.

 

 

New Guggenheim Fellow to Address Race, Guns and Fundamental Rights

First, the good news:  earlier today came the announcement that Carol Anderson, human rights hero, historian, and professor at Emory University, was awarded a prestigious Guggenheim Fellowship to work on a project titled:  "The Second: Race, Guns & A Most Deadly Double-Standard at the Core of Our Fundamental Rights."  Professor Anderson's other works, including the award-winning Eyes Off the Prize and the NY Times Bestseller White Rage, have illuminated issues from Ferguson to voting rights.  It's great news that she will be bringing her insights to the issue of gun violence and race. 

This news caps a week when our blog hosted a symposium on gun violence and human rights, with new entries each day taking on a different slice of the issues.  For readers' convenience, here is a digest of the series, with links:

Contributing editor Jeremiah Ho kicked off the symposium on April 1 with the entry Gun Violence and Human Rights Rhetoric, examining the uses of human rights language on all sides of the gun control issue.

On April 2, Leila Sadat and Madaline George of the Harris World Law Institute addressed the ways in which US gun policies fail to meet international human rights standards in their essay Guns and Human Rights: US Violates International Human Rights Standards.

On April 3, co-editor Margaret Drew blogged about intimate partners ensnared by the impacts of gun violence, in her entry, Expanding the Gun Violence Count: When Victims are Prosecuted for the Crimes of Abusers.

On April 4, Patricia Illingworth wrote about guns and the Guiding Principles on Business and Human Rights in her blog, Business, Guns, and Human Rights.

This issue will not be going away any time soon.  We hope these essays provide food for thought, and perhaps resources for the classroom, and we look forward to continuing the discussion in the coming months.

 

Businesses, Guns, and Human Rights

by Patricia Illingworth, JD, PhD, professor at Northeastern University; senior fellow at the Carr Center for Human Rights Policy, Harvard Kennedy School.  This essay was originally published by the Hastings Center on March 22, 2018.

 

The mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla, resulted in the deaths of 17 people. Tragically, from January 1 to March 21, 2018, there were 3,088 gun-related deaths and 5,355 gun-related injuries in the United States. Gun violence is a public health problem. But it’s also a human rights problem.  It is time to turn to international human rights and moral and social norms, which ground obligations for individuals and business organizations to limit gun ownership.

Human rights are entitlements that all people have by virtue of their humanity. Gun violence puts a number of human rights at risk. Most obviously, it threatens Article 6 of the United Nation’s International Covenant on Civil and Political Rights: “Every human being has the inherent right to life.” Studies show that the mere presence of guns increases the probability of crime, suicide, and accidents.

Ethics asks us to promote the good and to prevent harm to others, especially when we can do so with little inconvenience to ourselves. Individuals are not alone in having moral responsibilities. In the eyes of the law, corporations are persons; they also have moral responsibilities. Businesses that manufacture guns have a moral responsibility to ensure that their products are not used in acts of violence. Businesses are also subject to the far more demanding obligations of international human rights.

The human rights responsibilities of businesses were carefully articulated in the U. N.’s Guiding Principles on Business and Human Rights in 2011, which states, “Business enterprises should respect human rights. . . . [T]hey should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.” Put differently, businesses are responsible for ensuring that their activities do not violate human rights. This responsibility includes a company’s direct violations as well as those of organizations with which it is affiliated, such as its supply chains.

Importantly, the Guiding Principles requires companies to anticipate their human rights impacts and to remedy any violation. Once organizations know that they are at risk of violating human rights, they must take steps to avoid the violation. If companies wait for overwhelming evidence that their activities will violate human rights, they will have failed to meet their due diligence responsibilities to protect and respect human rights. Too little, too late.

In the wake of the Parkland mass shooting, some businesses are assuming greater responsibility for their impact on human rights. National Car Rental, Enterprise Rent-A-Car, Alamo Rent A Car, and Delta Air Lines have ended (at least for now) the discounts they extended to members of the National Rifle Association. Some stores have not only refused to sell guns and ammunition but also refused to sell the water bottles and helmets that are produced by companies affiliated with gun manufacturers. Their actions not only diminish their complicity in gun violence but also convey a message to the community about their responsibilities to stakeholders.

Soon after the Parkland shooting, more than 17,000 Americans signed an online petition asking Recreational Equipment Inc. (REI) to stop selling brands associated with Vista Outdoor, a company worth about $3 billion, much of whose business comes from the sale of guns and ammunition—including assault weapons of the sort used at Marjory Stoneman Douglas High School. In addition to firearms, Vista’s portfolio includes CamelBak (water bottles), Bell (helmets), and Giro (helmets, goggles, and athletic shoes)—products for people who love the outdoors. On March 1, REI placed a hold on its orders of Vista products. Dick’s Sporting Goods announced that it had stopped selling AR-15-style weapons and raised the age requirement to purchase any gun to 21. Edward Stack, CEO of Dick’s, said that the company was “going to take a stand and step up and tell people our view and, hopefully, bring people along into the conversation.” Soon after, Walmart joined Dick’s in raising the age requirement on all firearm sales. (Walmart hasn’t sold high-powered rifles like the AR-15 since 2015.)

In Canada, Mountain Equipment Co-op (MEC) stopped selling Vista products. MEC was the subject of a Change.org petition with 54,129 supporters that stated, “Given the recent massacre of high school students in Parkland, Florida, MEC is facing an urgent ethical obligation: to act in accordance with its ‘Mission and Values’ and immediately stop selling brands owned by Vista Outdoor.”

To be viable, companies need legal and social legitimacy. Complicity in the violation of human rights and social norms risks their social license to operate. According to John Ruggie, the U.N. Secretary General’s Special Representative for Business and Human Rights from 2005 to 2011, when companies violate human rights, they can trigger a social backlash, which can in turn result in the loss of their social license to operate.

Today, gun violence in the U.S. has triggered a backlash against the N.R.A. and companies that manufacture guns and the brands affiliated with them. From the perspective of securing and maintaining social legitimacy, it doesn’t matter if the Second Amendment protects gun ownership. What matters is if the community is willing to extend a social license to operate to companies that produce firearms. Many Americans are reluctant to do so. Other Americans continue to support gun ownership, come what may.

At this time neither companies nor the communities on which they rely for their social license to operate may recognize that human rights motivate their actions. But people don’t need to understand that their activism is motivated by human rights in order for those rights and obligations to exist, or to be the driving force behind their actions. Still, the more we know about our human rights and responsibilities the more likely we can protect, respect, and fulfill them. Norm change can resemble a bandwagon in which increasing numbers of people gradually adopt a new norm as the social costs of the new and old norms shift. Times may be changing.

As social norms change, urged on by ethics, business, and human rights, public health and law will be empowered to assume their critical role in protecting the public’s health from gun violence. Very often ethics and business collide. With respect to gun violence, enterprises together with ethics and international human rights are leading the way to a healthier America.

The responsibility to respect human rights and to restore human dignity exists independently of the government’s willingness to fulfill its human rights obligations. There is no dignity in the senseless and violent deaths of 17 people. Nor was there dignity for the students of Marjory Stoneman Douglas High School as they walked in single file from school, terrified for their safety and grieving the loss. There is of course, great dignity in the March For Our Lives march in Washington, D.C., on March 24 as the country comes together in solidarity to protect the human rights to life and to health, and to be free from gun violence.

 

Expanding The Gun Violence Count: Prosecuting Survivors for the Crimes of Their Abusers

In our third commentary on gun violence and its aftermath, Prof. Margaret Drew notes that the desire for revenge and accountability following mass shootings and other crimes often results in prosecutors charging intimate partners of the shooters. 

Noor Salman was punched, verbally degraded and sexually assaulted by her husband throughout her marriage.  She was kept under lock and key by her in-laws following her husband's crimes.  Ms. Salman had the misfortune to be married to the Pulse Nightclub killer.

If the connection between domestic abuse and mass murder had not been clear at the time of the Pulse nightclub killings, it certainly is undeniable now.  To imagine that someone so horribly abused would have an ability to persuade her husband out of his violence, or even have the ability to contact police when under the threat of death herself, defies any understanding of the impact of trauma and specifically the dynamics of intimate partner abuse.

According to the The Intercept, "the underlying phenomenon of abuse-to-criminalization is remarkably commonplace. Almost 80 percent of women who are currently in federal and state prisons were victims of physical or sexual abuse before their incarceration. And the Correctional Association of New York, which has been monitoring New York prisons since 1846, estimates that around 75 percent of incarcerated women have experienced severe abuse at the hands of an intimate partner during adulthood."  Ms. Salman is not alone.  Victims are charged with the crimes of their abusers more frequently than the public is aware.

 Marissa Alexander was convicted in 2012 of aggravated assault for firing a warning shot at her long abusive husband. "There are other situations that lead to charges against abuse victims: Many women are charged with failure to protect their children from their abusive partners, or for failure to report the criminal activity of their abusers to authorities. Others, like Salman, are charged with aiding and abetting their abusers in crimes they didn’t commit themselves. In many of these latter cases, victims face prosecution for felony murder if they were present when abusive partners killed their children, family members, acquaintances, or strangers"

As in the Salman case, charges are often brought even when the perpetrator is dead.  Conspiracy laws are used to sweep victims into the law's net for a variety of crimes, when a victim's only act was to cohabit with the perpetrator.

In these instances, prosecutorial discretion was misguided.  Rather than investigate and become educated on the dynamics of abuse and the impact of trauma, the prosecutors adopt the same victim blaming stance that historically has kept abused women from receiving adequate help to become independent.

Ms. Salman''s acquittal brings some comfort that judges and juries can sort out the difference between aiding and abetting and entrapment.

But sometimes it is impossible to sort the difference between an uninformed prosecutor and those who callously overreach in the name of the state.