Wednesday, October 31, 2018
President Trump is sending troops to the US – Mexico border. The announcement attempts to resuscitate republican candidates, and stir up his base to vote. Trump once again is focusing on immigration and immigrants as the source of all troubles for the alienated (or alienating) voter.
Part of his plan is to send 5200 troops to the Mexican border. By current estimates that is two plus soldiers for each member of the immigrant “caravan”. And what are the troops to do? Simply stand in a line so that refugees cannot pass? Not assist as children become dehydrated? Watch the travelers starve? Are trained soldiers expected to use violence if any of the migrants attempt to breach the border? What is our action plan if that should happen?
If we had a President looking for solutions, not drama, why not send the troops to Honduras where they could restore safe living conditions and people would not need to leave their home country. But it is the drama our President seeks.
Then the President announced that he will eliminate birthright citizenship by executive order. Experts cite a long line of constitutional cases that prohibit such an action. But as we have learned, we can no longer rely upon traditional avenues to protect us from radicalism.
Tuesday, October 30, 2018
First, the timely conference: On November 2, the Harris Institute at Washington University School of Law will host a conference titled Interdisciplinary and Human Rights Approaches to the Gun Violence Crisis in the United States. For more information and to register, click here. The conference boasts an excellent line-up of speakers, and there will be a lot to say -- and do-- on this issue.
Second, the words of wisdom: Michael Posner's opinion piece in Forbes explains why the anti-Semitic attacks in Pittsburgh and elsewhere are human rights violations.
Monday, October 29, 2018
The killings at Tree of Life Synagogue on Squirrel Hill in Pittsburgh were so horrific that it is difficult to know where to begin. But not beginning at all would be the worst. For it is in our silence and inaction that disregard of human life thrives. Somehow all expressions of hatred get around to torture and killing of Jewish people. Here we are again.
We have read warnings that recent events and political speeches repeat the fascism of the 30's and 40's. What I would like to know from those making these observations is what should we be doing at this point in time? We protest, we rally, we write. But surely there must be more. Is there a more effective active resistance? When do we reach the tipping point? While still a minority, the neo-nazi bullies, behave like the majority when it comes to controlling us through terror. One obstacle is that those of us who do not advocate hate and brutality have little experience with effective response. November 6th might give us some hope. But will that be enough?
Those who suffered genocide may help us understand what effective resistance looks like. One member of Tree of Life Synagogue opined that this is not the time for silent support. This is the time for loud, unending opposition. Mass shootings have been normalized. Hate crimes must not be.
Sunday, October 28, 2018
On Monday October 29th at 6:30 p.m. City University of New York will host a discussion by women of color who are leading the effort to pass the Equal Rights Amendment.
Speakers are women of color in political life and include several state senators. The discussion will be moderated by Carol Robles-Roman, co-president and CEO of the ERA Coalition and the Fund for Women's Equity. For those who cannot attend the live event, the discussion will be live streamed. You are encourage to host a party to watch this event. Encourage your students to do the same. As the website states:
For more information on live streaming and registration, click here.
Thursday, October 25, 2018
Former Secretary of Health and Human Services Kathleen Sebelius warned in a recent Washington Post article that the administration is already seeking to restrict women's health care beyond what the Supreme Court has permitted under Hobby Lobby and administration efforts to eliminate protections for pre-existing conditions. Sebelius focused on pending regulations that would not only limit access to birth control but access to information on birth control.
Pending regulations would make access to contraceptive difficult for about 4 million low income women. The regulations would create a "gag" order on providers giving referrals for abortion services. We are familiar with these restrictions on overseas health who receive federal funds. Now the administration seeks to implement the same restrictions on US providers. The regulations would primarily impact lower income women who lack insurance. Money saved from funding reproductive health care and low-cost contraception will be used to fund notoriously unsuccessful abstinence promotion.
As Sebelius informs "The draft rules, issued in June, not only would block any federal funding for family planning clinics that also offer abortion services, such as Planned Parenthood, but also would eliminate the current requirements that all health clinics receiving federal family planning funds offer a broad range of approved family planning methods, including prescription contraception." All at a time when teen pregnancies have drastically declined.
The full article may be read here.
Wednesday, October 24, 2018
Professor S.I. Strong of the University of Missouri has just posted a new article on SSRN, titled Can International Law Trump Trump's Immigration Agenda: Protecting Individual Rights Through Procedural Jus Cogens. The article is forthcoming at 2018 U. ILL. L. REV. ONLINE __.
Here's the abstract:
Recent days have seen a number of actual and proposed changes in U.S. immigration courts, including the call by Donald Trump to deny immigrants all access to courts or judges. This Essay considers the propriety of this and similar proposals in light of certain peremptory (non-derogable) norms of international law known as jus cogens (ius cogens). Jus cogens norms provide important protections against gross violations of core substantive and procedural rights and are often considered the highest within a hierarchy of international legal norms. Some of the most widely accepted jus cogens norms involve prohibitions on genocide, slavery, torture and prolonged arbitrary detention, and the question for this Essay is whether and to what extent certain actions taken or proposed by the Trump Administration violate existing or developing jus cogens norms. After defining traditional and evolving elements of jus cogens, the Essay undertakes a detailed analysis of the content of what might be called “procedural jus cogens” and considers how these principles might operate with respect to the Trump Administration’s proposals to eliminate immigration hearings. The discussion addresses both judicial and non-judicial responses that individuals and members of the international community might adopt should the proposals become reality. Although the current Essay focuses on one particular proposal, the recommendations outlined herein may apply equally to other violations of procedural law, both in the immigration context and beyond. Indeed, the further development of the concept of procedural jus cogens may provide significant protections for numerous individuals not only in the United States but in other countries around the world.
Tuesday, October 23, 2018
Congratulations to Professor James Silk (Yale), the recipient of the 2019 M. Shanara Gilbert Human Rights Award from the Society of American Law Teachers. Silk is the Binger Professor of Human Rights at Yale Law School, where he teaches the Allard K. Lowenstein Human Rights Clinic.
The SALT selection committee offered the following tribute in announcing the award:
Prof. James Silk (Yale):
The selection committee was impressed with your contributions to international human rights issues over a number of years, and with great effect. We were particularly excited at recognizing a consistent contributor to the expansion of human rights initiatives through clinical teaching and group projects, at a time when some standards long considered settled have come under assault, and notions of human rights have been marginalized. You were selected from a highly impressive group of nominees, including organizations working on such issues as immigrant rights and gun-control advocacy, and individuals who have dedicated themselves to teaching and the expansion of legal services to marginalized communities. The consistency and breadth of your work over time and the effect on expanding rights by engaging students in your projects set your nomination apart.
Monday, October 22, 2018
Sunday, October 21, 2018
Joining a minority of US jurisdictions, the Supreme Court of Washington ruled last week that sentencing of youthful offenders to life sentences without parole violates the US Constitution. 21 jurisdictions including states and the District of Columbia having ruled similarly and the present minority of states demanding that juveniles not have a minimum sentence of "life" look is growing.
The man in question murdered three members of his family when he was 15. The victims were his parents and 5 year old brother. He obtained his GED and took courses through a community college while incarcerated. But as a psychologist testified, the youthful brain fails to consider long term consequences of actions.
In 2012, the US Supreme Court ruled that sentencing juveniles to automatic life sentences was unconstitutional. The Washington State legislature then passed a statute allowing youthful offenders to have their sentencing reviewed, but provided that life in prison was still an option. That option is now struck by the Supreme Court.
This opinion moves human rights forward in Washington State and comes shortly after the state's Supreme Court determined the state's death penalty was unconstitutional.
Thursday, October 18, 2018
The Constitution's failure to acknowledge full voting rights in black men and all women, has had long lasting repercussions. The founders ignoring the fundamental rights of more than half of the population produced devastating results that extend into this decade. Active voter suppression efforts are taken to prevent people of color from voting. Threats of arrest for voter fraud, and other acts of intimidation are not only common but are effective. One of the most insidious deprivations of voting rights is denying the right to vote to those who are incarcerated for felonies and for newly returning citizens. Maine and Vermont do not deprive those convicted of felonies of the right to vote, even while incarcerated. This is not so in other states..
In 2016, Crystal Mason of Texas voted in the presidential election. She had no idea that she was not permitted to vote while on probation. And certainly no one from the state, including her probation officer, ever told her she could not vote while still doing community service. Ms. Mason, who is African-American, was recently sentenced to five years in prison. Being both female and a woman of color, Ms. Mason is just the sort of individual that the founders never intended to enfranchise. The resulting avoidance by the drafters connects to present voting disruptions in a direct line.
A majority of states permit returning citizens to vote. Before someone you know who was formerly incarcerated participates in voting, it would be helpful for them to check and learn who is permitted to vote and when voting may resume in the jurisdiction of residence. One helpful resource may be found here.
Wednesday, October 17, 2018
The October 2018 issue of Atlantic magazine includes an extended essay by Justice Stephen Breyer, titled America's Courts Can't Ignore the World.
Among other observations, Justice Breyer writes, "When I speak to an American audience about the need to be aware of foreign law and events, a member of the audience will typically ask, 'But isn’t the Constitution an American document? Doesn’t it protect American values?' I answer that the circumstances giving rise to more and more cases include foreign circumstances. Indeed, the best way to preserve American values (which are largely the same as contemporary European values) may well be to take account of what happens abroad."
With Justice Kennedy's requirement, the Court lost one of the justices willing to look to persuasive foreign and international precedent to inform domestic decisionmaking. Of the remaining justices, only Justices Ginsburg and Sotomayor, along with Justice Breyer, have been outspoken in support of the approach, though Justice Kagan is not antagonistic. Given the timing, could Justice Breyer's essay be directed to the Court's newest Justice?
Tuesday, October 16, 2018
On October 15, Oxford University Press published Professor Harold Koh's new book, The Trump Administration and International Law. Here's how it is described on the OUP website:
"Will Donald trump international law? Since Trump's Administration took office, this question has haunted almost every issue area of international law. One of our leading international lawyers-a former Legal Adviser of the US State Department, Assistant Secretary of State for Human Rights, and Yale Law Dean-argues that President Trump has thus far enjoyed less success than many believe, because he does not own the pervasive "transnational legal process" that governs these issue areas. This book shows how those opposing Trump's policies during his administration's first two years have successfully triggered that process as part of a collective counter-strategy akin to Muhammad Ali's "rope-a-dope." The book surveys immigration and refugee law, human rights, climate change, denuclearization, trade diplomacy, relations with North Korea, Russia and Ukraine, America's "Forever War" against Al Qaeda and the Islamic State, and the ongoing tragedy in Syria. Koh's tour d'horizon illustrates the many techniques that players in the transnational legal process have used to blunt Trump's early initiatives. The high stakes of this struggle, and its broader implications for the future of global governance-now challenged by the rise of populist authoritarians-make this exhausting counter-strategy both worthwhile and necessary."
For the two weeks, the blog OpinioJuris of the International Commission of Jurists has been running a Symposium on the new book. Check it out for commentary from the left and the right, and a response from Professor Koh.
Monday, October 15, 2018
The President is making his move to quell opposition.
"A new proposal by the Trump administration would seriously limit the number of protests in Washington, D.C., and bar demonstrations outside parts of the White House and the National Mall altogether." So reports Newsweek. The National Park Service claims that it proposed the plan that would shut down protests on the north side of the White House, near Lafayette Park. Protesters have demonstrated in that area for 50 consecutive nights. In addition the plan would prohibit protests on the National Mall and would cap the number of protesters permitted to demonstrate. Portions of Pennsylvania Avenue would be shut down, as well.
Many other presidents have lived through continuous protests in the neighborhood. President Nixon was the target of anti-war protesters, as well as those seeking impeachment. On one early morning, President Nixon went to the Lincoln Memorial to engage those demonstrating. Protesters during the Vietnam War continued a steady chant of "Hey, Hey LBJ, how many kids did you kill today." The demonstrators were so persistent that often the Johnsons forewent plans for entertaining visitors because of the chanting outside.
This President has no tolerance for dissent. Despite protest being a long, embedded activity in our political culture, President Trump seeks to shut down peaceful protest. This move is one of the most threatening to democracy to date.
We should all be very worried.
Sunday, October 14, 2018
Two upcoming conferences take an interdisciplinary view of human rights challenges:
On November 2 at Washington University, St. Louis, a conference titled: "Interdisciplinary and Human Rights Approaches to the Gun Violence Crisis in the United States. " The conference is sponsored by the Harris Institute. More information and registration info is available here.
Also on November 2, at Northeastern University School of Law in Boston, a one-day symposium titled "Rethinking Borders: Climate Change, Migration, and Human Rights." The event is co-sponsored by the Raoul Wallenberg Institute of Human Rights and Humanitarian Law More information is available here.
Saturday, October 13, 2018
Last Thursday, just one day after the World Day Against the Death Penalty, the Washington State Supreme Court struck down the state's death penalty on the ground of racial bias. In the course of its ruling, the high court made clear that was construing the Washington State Constitution as a independent document, and not ruling on the construction of the federal constitution. Nevertheless, the court noted that "evolving standards of decency" regarding appropriate punishment are reflected in "local, national, and international trends that disfavor capital punishment more broadly." Further, the court cited the data: "Internationally, dozens of countries have abolished capital punishment, including all European nations."
Kudos to the court for recognizing the value of including comparative perspectives on this important human rights issue, and concluding that U.S. outlier status should trigger concern about whether the death penalty is part of the practice of civilized nations.
Thursday, October 11, 2018
As reported by Amy Howe in Howe On The Court The Supreme Court declined to intervene in the case of Richard Brakebill v. Secretary of State of North Dakota which challenges North Dakota’s requirement that voters produce identification that includes their current residential address. Lawyers for those challenging the requirement argued that the requirement would prevent thousands of Native Americans from voting because they often do not have traditional addresses. In addition, Native Americans are disproportionately homeless. The law in question was put on hold by the Federal District Court hearing the matter when North Dakota was ordered to permit voters with identification showing a street or mailing address to exercise their franchise. But now the US Court of Appeals for the 6th Circuit put that order on hold. In declining to hear the case on whether to continue the lower court order, voters in the final election will be required to show identification with a current residential address.
Justice Ginsburg dissented with Justice Kagan joining her:
“ The risk of voter confusion appears severe here because the injunction against requiring residential-address identification was in force during the primary election and because the Secretary of State’s website announced for months the ID requirements as they existed under that injunction. Reasonable voters may well assume that the IDs allowing them to vote in the primary election would remain valid in the general election. If the Eighth Circuit’s stay is not vacated, the risk of disfranchisement is large.”
In the meantime, suit has been filed against Brian Kemp the Georgia Secretary of State alleging voter suppression in the hotly contested governor's race where Stacey Abrams seeks to become the first African American governor. The lawsuit claims that the Secretary of State is refusing to certify 40,000 new applications for voter enrollment. Mr. Kemp happens to be Ms. Abrams' opponent.
Wednesday, October 10, 2018
Undaunted by Rising Anti-Internationalist Phobia, Death Penalty Abolitionists Persevere: World Day Against the Death Penalty
by Sandra Babcock, Clinical Professor of Law, Cornell Law School, guest contributor
It is a trying time to be an internationally-minded human rights advocate. Just this week, the United States announced its withdrawal from two international treaties—including the Vienna Convention on Diplomatic Relations—in response to litigation before the International Court of Justice. Denouncing the ICJ as "politicized and ineffective," the United States stated it would be reviewing all treaties granting the ICJ binding jurisdiction to resolve treaty disputes. The United States seems to have forgotten that it invoked the Vienna Convention on Diplomatic Relations when it sued Iran over the takeover of the U.S. Embassy in Tehran in 1979. In that case, the ICJ handed the United States a victory—but our current government officials have short memories. They petulantly object to every legal holding that criticizes, even in the most measured terms, actions taken by the United States. The Trump Administration’s actions shame the memory of those—including U.S. President Franklin D. Roosevelt—who sought a post-war international order that would use law, rather than brute force, to resolve disputes.
But amidst this distressing news, we take heart from the implacable march toward abolition of the death penalty around the world. The most extraordinary news today came from the government of Malaysia, which announced that it would abolish the death penalty, “full stop.” Malaysia has suspended all executions and intends to move swiftly to pass appropriate legislation. The import of this announcement cannot be overstated. Malaysia has been a staunch supporter of the death penalty in a region that has long resisted international trends toward abolition. It has the potential to sway other countries in the region, such as Singapore and Indonesia, who remain in the ranks of retentionists.
Even in countries that seem far from abolition, abolitionists continue their fight to save the lives of those on death row. Colleagues at Justice Project Pakistan are today screening a reenactment of the final twenty-four hours in the life of a condemned man in solitary confinement on death row. We are live-streaming this event at Cornell, where we express solidarity with JPP to expose injustice in the application of the death penalty there.
Colleagues at Penal Reform International have worked with the Cornell Center on the Death Penalty Worldwide to research and expose the plight of women on death row around the world, and these efforts promise to bring a new legion of feminist activists into the struggle to abolish the death penalty. For World Day Against the Death Penalty, we jointly produced a factsheet illuminating prison conditions for women on death row, which is based on the Cornell Center’s research published in “Judged for More than Her Crime: a Global Overview of Women Facing the Death Penalty.” This research was also cited by ten UN Special Rapporteurs in a statement issued today.
Reprieve continues its efforts to vindicate the rights of persons facing the death penalty in all corners of the world, and I am grateful for their support of my international human rights clinic’s work on behalf of death-sentenced prisoners in Malawi and Tanzania. The World Coalition Against the Death Penalty, under the leadership of Aurélie Plaçais, has inspired activists around the world to convene workshops, hold press conferences, and educate the public about capital punishment. A shout out as well to the wonderful work of Project 39A in Delhi, LBH Masyarakat in Indonesia, the Legal Defense and Assistance Project in Nigeria, and the Death Penalty Project in London. And as I write, African lawyer Angela Uwandu, trained at Cornell’s Makwanyane Institute, is convening a group of Nigerian lawyers to equip them with the legal skills to effectively defend men and women facing the death penalty there.
In our current political environment in the United States, it seems appropriate to note that many abolitionist organizations are led by women—including Reprieve, JPP, the World Coalition—and of course, the Cornell Center on the Death Penalty Worldwide. As women, we amplify the voices of our colleagues and work with young advocates to train the next generation of lawyers, scholars, and activists. Today, we send strength to all of those who continue this difficult fight around the world, and to the prisoners who remain under sentence of death.
Note: This blog is cross-posted on the website for the Cornell Center on the Death Penalty Worldwide.
Tuesday, October 9, 2018
US courts -- take note! On Tuesday, Oct. 9, a Dutch Appeals Court in the Hague upheld a lower court ruling ordering the Dutch government to, by 2020, cut greenhouse gas emissions by 25% from benchmark 1990 levels. The case was initiated by 900 Dutch citizens.
Climate litigation is underway around the world, including in the United States. The Columbia Law School Sabin Center for Climate Change Law, with Arnold & Porter, maintain a comprehensive data base of both US and non-US climate change cases. A short analysis of the human rights dimensions of climate change cases is available here.
One high profile case is the lawsuit filed against the US government by a group of Oregon youth, arguing that the government's failure to address climate change violates their constitutional rights. The case is scheduled to go to trial later in October, but last week, the federal government sought to stay the proceedings so that it could seek Supreme Court review. Prior government efforts to get the case dismissed have failed.
The timely ruling from the Netherlands will undoubtedly lend momentum to US citizen efforts to force government recognition of, and action, on climate change -- a profound human rights issue.
Monday, October 8, 2018
It takes something pretty dramatic to trigger a bipartisan outcry these days, but the Trump Administration has done it. What worked to bring House Democrats and Republicans together?: The Administration's proposal to limit refugees to 30,000 per year, and the evidence that only 21,000 have been accepted this year despite the worldwide refugee crisis.
On September 19, the co-chairs of the Tom Lantos Human Rights Commission of the U.S. Congress -- Rep. Jim McGovern (D. MA) and Rep. Randy Hultgren -- issued a powerful joint statement, reading in part:
“Refugee resettlement has been and should continue to be a cornerstone of American foreign policy. We should not be stepping back from our responsibility as a global leader in refugee resettlement, but rather stepping up to provide a safe and legal alternative for those most in need of safety. Resettlement is crucial to alleviate instability throughout the world, maintain strong relationships with our allies, and advance our foreign policy interests. By providing safe haven for refugees, we help to keep ourselves safe.
The United States cannot abandon its role as a place of sanctuary for the individuals and families seeking to escape violence, turmoil, and persecution. We cannot turn our back on the international community in a time of historic need. We urge the administration to reconsider its position to comport with global realities as we remain committed to work to ensure that the United States continues to welcome all from around the world seeking a place of safety and protection.”
On October 7, the U.S. Conference of Catholic Bishops also expressed concern about the Administration's approach and called for higher refugee admission limits.
For a backgrounder on how the U.S. refugee system works, see this informative piece by the Council on Foreign Relations.
Sunday, October 7, 2018
Last week, the MacArthur Foundation announced the group of 2018 MacArthur "genius" grant winners. Most of the Fellows are engaged in social justice work. For example, sociologist Rebecca Sandefur develops evidence-based approaches to expanding civil justice for low income people. MacArthur Fellow Vijay Gupta, founder of the Street Symphony, extends musical enrichment to under-resourced communities in Los Angeles.
Two of the Fellows are explicitly identified as working on human rights. Becca Heller is a human rights lawyer and founder of the International Refugee Assistance Project (IRAP), which musters help from law firms and law schools to provide representation in urgent refugee cases. Gregg Gonsalves, an epidemiologist, works at the intersection of human rights and public health research to address global health inequities.
Kudos to these new Foundation Fellows!
Just at the time when so many of us are looking for reasons to hope, their accomplishments and vision are inspiring and energizing!