Human Rights at Home Blog

UN Guiding Business Principles Should Apply To Low Wage Workers

Guest Blogger Prof. Chaumtoli Huq writes in this two part series on the UN Guiding Business Principles and US advocacy.

The New York Times headline, Why Are Taxi Drivers in New York Killing Themselves? should sound human rights alarms. Drivers who committed suicide shared with their families that they had a difficult time making a living as Uber began to dominate the ride-hailing, app-based taxi industry. This, combined with the existing exploitative lease driving system, unscrupulous loans and prior inaction by the City to cap the number of app-based vehicles, failed to provide the majority immigrant drivers a steady income. Instead, it forced them into greater debt and has worsened their working conditions.

When we think of corporate misconduct, we often think of overtly egregious examples in the Global South such as the Bhopal disaster, extractive industries like Shell in Nigeria, and in my own field of work, global labour rights, like Rana Plaza. It is rare to hear the Guiding Principles on Business and Human Rights (‘Guiding Principles’) discussed in relation to workers in the United States, particularly, immigrant workers. This is true even though in 2016 the United States launched a National Action Plan (NAP) on business and human rights as part of the State’s responsibility to disseminate and implement the Guiding Principles. However, a review by the International Corporate Accountability Roundtable found that the ‘scope of the NAP is completely extraterritorial, and the content did not address domestic business-related human rights issues.’

There is nothing in the Guiding Principles that would prevent the latter application, even as we have witnessed multinational companies thwart labour rights of workers in the United States from Walmart to app companies like Uber, Lyft and Amazon. In this blog, I argue that the Guiding Principles should be applied to low-wage workers across the United States by looking at the business impact of app-based companies such as Uber on depressing incomes, increasing precarity of low-wage and immigrant drivers, and congestion in an urban setting like New York City.

Uber’s Adverse Business Impact on Workers’ Rights in New York and Their Obligation to Remediate Harms

Taxi drivers and Uber app drivers are excluded from labour laws because they are classified as independent contractors and thus struggle to make wages and organize. This classification denies drivers a fundamental labour right recognized by the International Labour Organization (ILO): the freedom of association and right to collectively bargain. Major labour and employment laws in the United States apply to individuals legally defined as employees. For example, the National Labor Relations Act (NLRA), the federal law that protects the legal right to organize, excludes independent contractors such as app-drivers. Therefore, New York City Council has made efforts to provide some protections for them. It passed the first law in the country that provides a minimum pay rate per trip which could bring drivers pay equal to $17.22 an hour. It also passed a law imposing a one year cap on app-based licenses which was extended and would stabilize drivers’ income. Drivers globally want to organize as evidenced by the recent Uber strike led by drivers from New York to California. While the specific demands varied by locality, generally, drivers across the country wanted living wage, job security, and better treatment.

The Guiding Principles provide a framework to clarify the role of multinational corporations with respect to human rights. It follows a protect, respect, and remedy doctrine where companies have a responsibility to protect human rights and are encouraged to remediate harms caused by their business activities. As part of Uber’s duty to protect against business-related harms under the Guiding Principles, it must take appropriate steps to ensure that those affected can have an effective judicial or non-judicial remedy. What we observe instead, is that Uber has proactively tried to thwart any laws that would protect the rights of drivers. It spent millions of dollars to prevent the unionization of drivers across the United States. It has worked actively to prevent the New York City Council from passing legislation that would temporarily halt the number of app vehicles on the streets to drive down the incomes of regulated yellow cab drivers. It sought to use race to manipulate a divide between the immigrant workforce and minority riders. It also actively campaigned against a bill that provides a minimum pay rate per ride for app drivers. Once passed, Lyft sued the New York City Council to invalidate the law, but the case was dismissed. It is trying to engage in deals with elected officials in California to dilute the right of drivers to form a union in contravention of ILO’s fundamental principles of work. These efforts failed due to the organizing of driver groups like the New York Taxi Workers Alliance and allied unions like 32BJ SEIU. Instead of allowing drivers to have a pathway to remediate the harms through local legislation or in courts, Uber and other ride-sharing services have attempted to deny core labour rights such as freedom of association, in direct contravention of their obligations under the Guiding Principles.

This post also appears in Cambridge Care Blog.

Convictions For Kindness

Earlier we reported on the trial of Scott Warren of No More Deaths who was on trial for providing humanitarian aid to migrants crossing the southwestern border.  His prosecution ended in a mistrial.  

Four women, all volunteers for No More Deaths, who left water and food for migrants in the summer of 2017 faced criminal trial this week.  Following a three-day bench trial, the four were found guilty.   The women were charged with misdemeanor crimes based upon their entering protected federal land without a permit and leaving food and water there.  The Washington Post reported: "Prosecutors said they (the women) violated federal law by entering Cabeza Prieta, a protected 860,000-acre refuge, without a permit and leaving water and food there."

Of course, the motivation for the prosecution was the women's aiding migrants, but the prosecution for impermissible entry into federal land is an easier prosecutorial "win" than prosecuting for providing humanitarian aid.  "Aid workers say their humanitarian efforts, motivated by a deep sense of right and wrong, have been criminalized during the Trump administration’s crackdown on illegal border crossings. Federal officials say they were simply enforcing the law. "  More accurately, just following orders.  

"Concentration Camps"

While armchair pundits debate whether the border facilities housing immigrant children in substandard conditions are properly called "concentration camps," life goes on for most of us.  But Andrea Pitzer, writing in the New York Review of Books daily edition, puts these developments in historical perspective and outlines the strong possibility of an even grimmer future.  Indefinite detention, she writes, rarely becomes temporary and more often is a beginning wedge for wider abuses.  In short, if they aren't quite concentration camps now, they will be soon.

Those of us who care about human rights should not wait until then.

On July 12, Lights for Liberty is hosting a Vigil to End Human Detention Camps.  It's not hard to take action and make your voice heard.  Sign up here to participate in a vigil in your local community.

UN’s International Day in Support of Victims of Torture: North Carolina Citizens Call for Investigations and Reparations.

By Prof. Deborah Weissman 

The University of North Carolina School of Law’s Human Rights Policy Lab (HRPL) has sent a 35-page formal submission to 10 UN human rights experts who oversee treaty obligations.  The submission calls upon members of various rapporteurships and working groups to investigate both the CIA’s and Aero Contractors’ human rights violations in North Carolina and urges the United Nations to investigate North Carolina’s continued refusal to acknowledge and take responsibility for its role in the US government’s post-9/11 torture program.  The submission to the UN was prepared on behalf of the North Carolina Commission of Inquiry on Torture (NCCIT) and the advocacy organization North Carolina Stop Torture Now.  It was delivered on the eve of June 26, the UN’s International Day in Support of Victims of Torture.  The day was proclaimed in 1997 when the Convention Against Torture went into effect.  The UN calls June 26 an opportunity for member states, civil society and individuals to “unite in support of the hundreds of thousands of people around the world who have been victims of torture and those who are still tortured today.”

Simultaneously, the HRPL has just published a groundbreaking report on reparations owed by the State of North Carolina for its role in the renditions to torture of 49 survivors and victims of the US torture program.  The 45-page report was sent to human rights experts in the US and at the UN.

The UN receives the HRPL submission as it considers a complaint by the Center for Constitutional Rights about US interference with a proposed investigation by the International Criminal Court (ICC) of US violations including torture.  After the ICC decided under US pressure not to proceed with an investigation by its Chief Prosecutor, Fatou Bensouda, of US and Taliban war crimes in Afghanistan, Ms. Bensouda appealed that decision.  Some cases of rendition and torture discussed in the UNC documents and the 2018 report of the NCCIT bear on the ICC’s proposed investigation because they involve CIA “black sites” in Afghanistan.

The UN says that “torture seeks to annihilate the victim’s personality and denies the inherent dignity of the human being.” Yet North Carolina continues to host Aero Contractors, the CIA-affiliated aviation company, at the Johnston County Airport even though a non-governmental commission and international experts have reported that Aero has used that airport and the Global TransPark in Kinston for at least 69 renditions that in and of themselves amounted to torture.

“Reparations are key mechanisms, not only for healing at an individual or communal level but also for the maintenance of democratic societies,” the UNC reparations report.  “Eventually, the sun sets on democratic governments that operate with impunity to carry out human rights abuses."  

The UNC Law team is requesting that the 10 UN mandate-holders work directly with North Carolina’s state and local governments to achieve accountability, even without the agreement of the federal government.  As a model, the petition for UN intervention notes, the UN Special Rapporteur on extreme poverty and human rights, Philip Alston, visited Los Angeles in 2017 to examine conditions on Skid Row.  Within a year, Los Angeles announced new funding to address the problems highlighted in his report.

The Meaning and Potential of Human Rights Cities

by Martha F. Davis, Northeastern School of Law

In 1831, the French diplomat and scientist Alexis de Toqueville, toured the United States and took extensive notes on social conditions, American culture, and American democracy.  Almost two centuries later, de Toqueville’s observations from his outsider perspective, published in the book Democracy in America, continue to illuminate the American experience.

Following in de Toqueville’s path, Michele Grigolo – an Italian scholar who teaches sociology in the U.K. – has recently published the book, The Human Rights City: New York, San Francisco, Barcelona.  While Grigolo’s focus is not exclusively on the U.S., his outsider stance in examining these three cities has the same impact as de Toqueville’s – through detailed observations combined with larger contextual insights, Grigolo teaches us things about our own culture and politics that we otherwise could not see.

The Human Rights Cities movement reflects a growing engagement by municipalities and city-level advocates in looking at the role of human rights in local policy and organizing.  The movement includes cities worldwide, including the U.S., yet the impetus for human rights cities seems to be strongest in Europe, with more cities and deeper engagement. 

Grigolo’s detailed examination of the ways in which human rights have been invoked in specific contexts in Barcelona, New York, and San Francisco help illuminate the deep-seated reasons for these differences.  Examining human rights in New York City, Grigolo digs into the history of New York's Human Rights Commission and its work on sexual orientation discrimination.  Like de Toqueville before him, Grigolo notes the American romance with litigation and legal frameworks – a trait that sets up a tension between civil rights and human rights approaches within the Commission and in the New York City political scene.  As LGBTQ advocates struggle for inclusion in the city’s existing civil rights protections, they sometimes find the added value of human rights difficult to articulate beyond its use as a rhetorical device.

In San Francisco, which adopted CEDAW as its municipal law, the connection between city policy and international human rights law is much more explicit.  At the same time, Grigolo’s interviews with key actors reveal that the original promoters of the city’s CEDAW ultimately concluded that the city’s implementation of CEDAW fell far short of its radical potential.  Yes, the pro-active focus on gender that the law required led to some greater awareness of gender-based burdens, particularly in the work-family arena, but deeper, structural reform and challenges to neo-liberalism were not part of the city’s agenda once the municipal government took over leadership of the CEDAW implementation.    

What, then, does the human rights framework offer to the city and its residents? 

Grigolo’s concluding chapter begins with a focus on the important role of the co-production of human rights in cities.  The human rights frame provides a platform for many agents in and around cities – activists, advocates, residents, city governments – to co-produce the meanings of justice, fairness, equality, and rights, for the community.  The human rights frame is a vehicle for institutionalizing these norms while also facilitating debate and active contestations.  Perhaps because it enters the conversation with less domestic “baggage” than civil rights, the human rights frame may be better suited to these conversations, especially in the U.S.

Grigolo also observes that cities affect human rights as well – “[a]s they enter the space and conversation of the city, . . . human rights are always in some ways reconstructed.”  He asserts with reference to the case studies outlined above, that “cities have emerged in this book as standpoints for questioning, challenging, and eventually expanding the rights recognized and protected by the state.”  This connection to human rights may give cities added power as they contest growing nationalism and racism at the nation state level. 

Finally, Grigolo examines the role of law in human rights cities – an issue that is particularly relevant in the U.S., with its overriding legal orientation.  As he notes, while law can be used to promote inclusion, “the law . . . remain[s] a divisive element in the urban practice of human rights.”  Human rights mainstreaming, for example, may be limited by lawyers’ perceptions of the need to integrate human rights into existing legal structures. 

Grigolo’s book ends with the thought that human rights cities have a special role to play in elevating voices from the periphery.  Human rights cities have the potential, he argues, to not only expand human rights, but to serve as “an active element in their development.”

By training an outsider lens on US human rights cities, Grigolo’s book lays out food for thought as well as ideas for action.  This is an important contribution to the emerging literature on local human rights, city spaces, and community activism.  Grigolo's insights on how human rights "plays" at the local level across cultures and sectors should inform both future scholars and human rights advocates.     

What Does The Constitution Mean To Me?

This past week I had the privilege of attending a performance of What The Constitution Means To Me in New York City.  This particular performance was special because domestic violence advocates from around the country were in the audience. As was Jessica Lenahan whose US Supreme Court Case is a topic addressed by actor Heidi Schreck in the play.  Schreck tells the story of traveling as a 15-year-old to various veteran's organizations giving her speech on the Constitution.  That is how she earned money to attend college.  The walls are lined with framed headshots of white male veterans wearing their slim double-pointed hats.   

The play movingly addresses the Supreme Court's refusal to protect women from violence, and the rollback of women's rights, particularly reproductive rights.  These topics are timely for discussion and are eloquently addressed.

The stage set silently reinforces the power that white men have over women.  And that was the greatest irritant for me.

I appreciate those who served in the military.  Those who were disabled from their military experiences deserve ongoing restorative support without the resistance that many veterans encounter from our government.   

But what we do not need is another veteran memorial, another military park or statue.  A public memorial honoring the women of all genders who have suffered violence at the hands of intimate partners would be welcome.  Memorials to individuals of all genders who experienced sex-based violence, including veterans, are urgently needed.  Public recognition of the indignities suffered by women of color and indigenous women would do much to bring awareness to the intersection of race, ethnicity,  and sex on the spectrum of discrimination and violence against women.  A memorial to all of the women who suffered and the many who died because of war would bring a face to the human suffering war creates.  Perhaps we could refocus suffering as well as heroism.  

Since only the work performed primarily by males is honored in this country -- police, fire, military for some examples -- that is the culture we honor.   The next time that your town wants to erect another statue to male culture, think about protesting.  I would argue that public statues and memorials are unnecessary.  But I realize in an age where civics are no longer taught, and women are largely ignored in history, education happens around public monuments and this is one place where the re-education of America can begin.

 

 

 

A Question of Pride - Will Legal Advances Stand?

By Prof. Jeremiah Ho

This year’s June LGBTQ Pride Month is distinctive because it marks the 50^th anniversary of the Stonewall Riots.  A half-century ago, New York City police raided the Stonewall Inn, a cramped gay bar in Greenwich Village.  That harassment incited a six-day riot from gay patrons and neighborhood sympathizers.  In LGBTQ history, the Stonewall Riots represents a defining moment of acting up and symbolizes the threshold of the gay liberation movement of the 1970s, which ultimately transformed LGBTQ visibility.    

This past year has brought other LGBTQ anniversaries.  Last October was the 30^th anniversary of National Coming Out Day.  This past February marked 15 years since Massachusetts first legalized same-sex marriage.  There is much to commemorate. 

Yet, not all anniversaries this June are celebratory.  A year ago, the Supreme Court reversed a Colorado ruling that a Christian baker’s refusal to sell a wedding cake to a same-sex couple was discriminatory.  In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court protected the baker’s religious freedom by finding that the lower proceedings had been tainted by religious hostility—even when the same-sex couple’s sexual orientation discrimination claim was sound.  Some legal commentators have since questioned the Court’s grounds for finding religious hostility.  

Before Masterpiece, full equality for LGBTQ individuals seemed inevitable.  The Supreme Court had protected LGBTQ people from legislative animus, de-criminalized their sexual relationships, and overturned the Defense of Marriage Act.  In 2010, Congress repealed Don’t Ask, Don’t Tell.  Progress culminated in 2015 when the Supreme Court recognized same-sex marriages in Obergefell v. Hodges.  Love won—as the popular saying went.

But Masterpiece and the current lack of full equality loom over this Pride Month, especially as Stonewall’s anniversary approaches. 

Aside from the Supreme Court’s questionable interpretation of religious hostility in Masterpiece, the problem with last year’s wedding cake case reveals a hurdle for current LGBTQ activism.  This hurdle was one that Stonewall, in part, externalized and what turned the conformist style of gay rights activism of the 1960s into its 1970s radical liberationist incarnation.  In the quest for equality, some gays, unfortunately, tend to get ahead of others.  

To win marriage equality in 2015, the same-sex couples in Obergefell had to show that their interests in marrying converged with the interests of mainstream America to uphold traditional marriage.  In his studies on American racial progress, the late Derrick Bell, NYU legal scholar, had called this strategy “interest convergence.” 

• Achieving interest convergence in Obergefell meant that the same-sex couples could not threaten the mainstream status quo of America while seeking one of its most prized institutions.  The strategy was conformance, assimilation, and respectability.  The couples resembled mainstream straight married couples by exhibiting cultural, economic, and gender norms that aligned with the status quo.  A 2015 Yale Law paper explored just how assimilated these same-sex couples were in Obergefell.  See Cynthia Godsoe, Perfect Plaintiffs, 125 Yale L.J. F. 136 (2015).  The couples looked all-American in the upper-middle class, mostly-white, professional, and family-oriented sense, and made marriage equality an issue seemingly confined to a small, elite segment of the LGBTQ population.  That strategy worked.  Love did win. 

But the strategy also relied on gay elite privilege to overcome a legal struggle for equality.

Last year, the same-sex couple in Masterpiece did not resemble the same-sex couples in Obergefell.  Without children and upper middle-class professions, they didn’t seem as “all-American” or mainstream.  In public, their hairstyles and clothing blurred gender lines.  The two men, Charlie Craig and David Mullins, even dared to kiss outside the Supreme Court building.  Culturally, they were queer, not assimilated.  And their plight against discrimination pitted their queerness directly against anti-gay Christian beliefs—threatening another status quo institution:  religion.  Interests didn’t converge then.  Instead, the status quo felt threatened and so the baker won.    

Thus, equality bears a conditional message for gays:  resemble the mainstream or your chances for equal treatment are attenuated. 

In spirit, Stonewall and the gay liberation movement of the 1970s urged against surrendering visible, authentic lives for compromises that assimilation and respectability might bring.  The LGBTQ movement must do better to show mainstream America that there are others to recognize.  In my forthcoming article from the Yale Journal of Law & Feminism, I detail further the status quo anxiety in Masterpiece and propose a shift away from identity politics to broad coalitions premised on democratic values.  A preview of the piece is available here.

Moreover, in the next Supreme Court term, three cases of employment discrimination against gay and transgender individuals will also allow the movement to re-examine its strategies.

Yes, marriage equality provided progress and the Obergefell plaintiffs were true to their own struggles.  But when discrimination in employment, housing, and public accommodations still affect LGBTQ individuals, marriage equality was not full equality. 

So this Pride Month when we see those “Love Wins” signs again, we must also ask:  when will queer win? 

 

The Past Is Prologue

The Netflix production When They See Us tells the story of the young men, mostly minors, charged with the rape and attempted murder of a white woman who was jogging in central park. The defendants were males of color.  It would not be a spoiler to discuss that the five men were later exonerated.   Another man confessed to the crimes and his DNA matched that found at the scene.  

The film shows video recordings of Donal Trump calling for the return of New York's death penalty.  During the frenzy surrounding the 1989 trial,  President Trump took out advertisements in several New York newspapers calling for the death penalty.   The New York Times reported that in the ads Mr. Trump quoted Mayor Koch as stating "hate and rancor have no place in our hearts."  ''I want to hate these muggers and murderers,'' Mr. Trump wrote. ''They should be forced to suffer and, when they kill, they should be executed for their crimes.''  The "they" of course, were people of color.

''We must not confuse tough punishment with hatred,'' Mr. Koch responded, ''I think he's on the wrong track. He has a right to express his opinion. He's expressing hatred and I'm expressing anger. There's a big difference.''

Mr. Trump has consistently refused to apologize for the ad.  As recent as this week, the President not only refused to apologize but criticized New York City's settlement with the wrongly convicted men.  

The past is prologue indeed.  

 

 

Contentious Compliance: Human Rights Treaties Make a Positive Difference!

In their new book, Contentious Compliance, Professors Courtenay Conrad and Emily Ritter investigate the effect of international human rights treaties on domestic conflict and ultimately find that treaties improve human rights outcomes by altering the structure of conflict between political authorities and potential dissidents.

According to the publisher, the book:

•        -- Argues human rights treaties affect rights violations and popular dissent actions like protest,
•     -- Uses formal economic models to predict effects, which is rare in studies of either rights violations or international law, and
  
•     -- Offers new findings that: (1)human rights treaties alter government violations for the better; and (2) treaties affect repression and dissent             activities

 

Mimicking Human Rights

The proposed Commission on Unalienable Rights has released its draft charter.   As described in an earlier post,  the State Department is forming a new commission to review human rights principles to make certain that those principals are not in conflict with US-defined "natural law ".  The intention of the founders will be given priority attention in defining human rights.  The charter reinforces that the mission is to "recover that which is enduring for the maintenance and of free and open societies. 

In a frightening disclosure, the draft charter states that commission members will be called "Rapporteurs."  Clever.  Scary but clever.  Part of the unstated plan is to replace the credibility of UN Rappateurs with the voice of commission members.  For many who will be introduced to the word, their only association with "rapporteur" will be the voice of the new commission.  A goal of the commission can only be not to simply redefine human rights but to eliminate the credibility of those charged with monitoring human rights as we have known them since the close of World War II.  

IACHR Call for Papers: July 1 Deadline

The Inter-American Commission on Human Rights (IACHR) has issued a call for academic papers to be presented at events to mark the Commission’s 60th anniversary.

Submissions should address the impact of the IACHR during its 60-year history.  Any person with ties to an academic institution as a teacher, student or researcher is eligible to submit.

Selected submissions will be presented by their author during one of the panel discussions held in Washington, D.C., during the Commission’s 173rd Period of Sessions, in September 23-October 2, 2019.

This call for papers is set to remain open for the submission of abstracts until July 1, 2019.

 

Devastating New Report on Water Affordability and Race in the U.S.

The Thurgood Marshall Institute of the NAACP Legal Defense and Educational Fund has released an in-depth report titled Water/Color: A Study of Race & the Water Affordability Crisis in America's Cities. The report lays out the history of water infrastructure and pricing in the U.S., followed by detailed studies of affordability and race in Baltimore and Cleveland.  A legal analysis lays out the legal issues under domestic laws such as the Fair Housing Act as well as the human rights protections that are violated when household water becomes inaccessible because of rising costs.  Finally, the report reviews possible policy approaches to address this life- and health-threatening issue, examining local affordability plans such as Philadelphia's as well as possible federal approaches.

The issue of rising water costs has been increasingly addressed by scholars, advocates, and international institutions.  Some communities, such as Philadelphia, have responded with concrete plans.  However, far too many local governments are still ignoring the devastating human impacts of unaffordable water, including the race-based discrimination that is an undercurrent.   As climate change progresses and extreme weather overwhelms our nation's aging infrastructure, the challenge of providing water to all, regardless of race or income, will only increase.  

Let's hope that the LDEF's report will finally put this fundamental human rights issue squarely into the national conversation, as a common challenge that must be confronted and addressed by every level of government.    

Pride Events - Beyond Parades

The month of June presents wonderful opportunities to learn more about the historical oppression of sexual minorities in the United States.  On June 18th PBS will air The Lavender Scare

The documentary tells the story of federal workers who were either fired or denied employment because they were gay.  The time was the 1950's and President Eisenhower signed an order barring gays from federal employment.   One of the people featured in the film is Frank Kameny who had organized the Mattachine Society, an early gay advocacy organization.   When a Texas congressman introduced a bill that would ban the Mattchine Society,   Kameny insisted upon testifying before congress.  Kamely became the first openly gay man to do so.

Joan Cassidy is a retired Navy captain who tells the story of living in fear that she would be discovered to be a lesbian.   Her story is featured in the documentary.

Pride parades will be held world-wide. Pride events will be held throughout the year. A listing of US and International Pride events can be found here.

In New York City tours of sites significant to LGBT history are available. Sites include the Stonewall Inn and the Gay Liberation Monumen

CNN Travel lists happenings beyond parades including Chicago's Pride Run, a Queer Family Portrait Exhibit in San Francisco, and a July 5th Niagra Falls celebration featuring the Buffalo Philharmonic Orchestra performing show tunes with a backdrop of a pride light show, and a Queer Art Walk in Seattle.  

 

Pride and Stonewall

This year celebrates the 50th anniversary of the Stonewall uprising.  Pride parades across the country celebrated the anniversary. 

Lost in some of the celebrations and certainly in the awareness of the non-LGBTQ community is the context of the revolt.  One survivor estimates that 70% of the Stonewall participants were people of color or Latinx.  One observer stated that "You have people such as Marsha P. Johnson and Sylvia (Rivera) who were very critical in that movement that started this off. They stood up for it. So many times we don’t recognize those particular leaders. They were African-American and other people of color who were really strong leaders."  While other protests had occurred, it was Stonewall that set off what was then known as the "Gay Liberation" movement.  The time was ripe.  A movement to advance equality of treatment for the LGBTQ community was due in an era that had seen the civil rights movement make strong inroads and the "Women's Liberation" movement was forming.  As with other social movements,  gay communities of color soon felt excluded from the Pride movement and formed communities of their own.

The laws in place in 1968 NYC that led to arrests of gay and trans people were specifically designed to target sexual minorities.  One law required that each patron wear three pieces of clothing identified with their birth gender if they were to avoid arrest.  Other laws, while seemingly neutral, were enforced against owners of gay bars, such as a law that prohibited serving alcohol where there was "disorderly conduct."  Gay bars were de facto considered disorderly.  

The first night of the Stonewall revolt, police began harassing, including pushing, the patrons.  This was not typical police conduct who were being paid by the bar owner to look the other way.  But this night was different in that the patrons did not remain passive. Like that one last act of aggression that pushes someone to react, enough was enough and patrons began fighting back.  The LGBTQ community at the time of Stonewall, was looking for equality of treatment.  They were far from making marriage equality a primary focus.  Indeed, their focus was human rights-centered, promoting individual dignity.  Some believe that the later focus on marriage equality subsumed the original broader and more critical human rights concerns although dignity was a major theme in Justice Kennedy's opinion in Obergfell.  

No matter what the criticism of post-1969 developments, there is no question that Stonewall ignited public and individual pride, even though at the time, those involved could not appreciate the long-term impact of their acts

New York Paid Surrogacy and An India Connection

By Sital Kalantry

Editors' Note:  This piece was originally published in the NY Daily News

The New York State Legislature banned surrogacy in 1992. The only other state that similarly criminalizes and holds all surrogacy contracts unenforceable is Michigan. New York prohibited surrogacy on the heels of a nationwide debate that ensued after a surrogate in New Jersey, Mary Beth Whitehead, sought to keep custody of her biological child.

Almost exactly a year ago today, the New Jersey legislature legalized gestational surrogacy, which is to say cases in which the pregnant woman is not also the genetic mother. Yet New York still lags behind in recognizing modern families.

Last week, I testified in Albany before the New York State Senate Judiciary Committee in favor of a bill that would legalize and regulate compensated surrogacy in New York State. In speaking to state legislative representatives, I learned that one reason some worry about allowing surrogacy is because they think women (particularly poor and minority women) will be exploited.

This is exactly the argument made by some women’s rights advocates. Catholic groups argue that because surrogates face abusive conditions in Thailand, Cambodia, and other developing countries, they will also be exploited in the United States.

The problem with these arguments is that they conflate an ideological objection to surrogacy with a prediction that surrogates in New York will be abused. Those who shroud their objections to surrogacy by pointing to the abusive conditions in other countries object to surrogacy on religious grounds or because they think women’s gestational care should never be bought and sold.

Some Catholics believe that the medical technology used in surrogacy — in vitro fertilization — is problematic because embryos could be killed in the process. Some women’s rights advocates, approaching surrogacy from a view of the world similar to “The Handmaid’s Tale,” argue that we live in a sexist world and women who operate in this world, particularly surrogates, inevitably face horrendous conditions and are dehumanized.

This top-down feminism appears in debates about surrogacy in India as well. Marxists oppose surrogacy in India because they oppose the buying and purchasing of labor more generally. These viewpoints are married to create the exact same arguments being made today in New York: that women will be exploited by surrogacy.

But like the anti-surrogacy lobby in New York, many opponents of legal surrogacy in India would still oppose it even if every surrogate was paid her a million dollars and put up in the Ritz-Carlton by intended parents.

I too worry about the unfair conditions for surrogates in India. Some are forced to live in surrogacy homes; they have no life insurance, no health insurance beyond the pregnancy, and no guarantee of payment. But unlike in India, the New York bill would provide state-of-the-art protections for surrogates in New York: legal representation, life insurance and health insurance all paid for by the intended parents. Women retain the right to terminate the contract before they become pregnant and also to terminate their pregnancy.

Even in the numerous other states in the U.S. where there is no legislation, industry actors have adopted many surrogate-protective guidelines. Surrogates in the United States additionally have the ability to seek damages from doctors, lawyers or the intended parents if they have been harmed, unlike the women who are surrogates in India.

I encourage New Yorkers to distinguish ideological arguments from facts and not to be persuaded by arguments that inappropriately refer to other countries. No one can guarantee that every surrogate will feel she was treated fairly, but the proposed New York law gives surrogates a number of very important protections and rights. Legalizing surrogacy would allow for many people in New York to fulfill their dream of becoming parents.

The U.N. Comments On The U.S. Crime of Providing Humanitarian Aid

Scott  Warren is awaiting a verdict in his Arizona trial. His crime was to provide humanitarian relief to migrants who walked over the Southwest US border.   He provided two immigrants with food, water, beds, and clean clothes.  Warren founded No More Deaths, an organization critical of the lack of humanitarian aid toward those attempting to cross the Sonoran Desert into the US.  Not coincidentally, Warren's arrest came just after No More Deaths issued a report that implicated border agents in inhuman acts toward migrants.  FBI agents claim that the two migrants were not in distress which is a curious statement about men who had walked thousands of miles and whom Warren says had blisters on their feet.  

The charges against Warren are "harboring of migrants" and "conspiring to transport and harbor migrants."  Warren's activism focuses on providing humanitarian aid and preventing the death of migrants.  Arizona has some of the highest rates of migrant deaths.  

UN experts expressed concern about the prosecution.  “Providing humanitarian aid is not a crime. We urge the US authorities to immediately drop all charges against Scott Warren,” the experts said.  

Ranking Digital Rights: Companies Register Some Improvements, But All Still Fall Short

A new Ranking Digital Rights (RDR) Corporate Accountability Index was released in late May 2019.  The 2019 RDR Index ranked 24 companies on 35 indicators across three categories evaluating their disclosure of commitments, policies, and practices affecting freedom of expression and privacy.  David Kaye, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, has said that “RDR’s comprehensive, multi-disciplinary methodology sets a gold standard for the fact-finding required to assess the human rights impact of the companies that create, manage and facilitate vast digital networks and spaces.”

The RDR Corporate Accountability Index evaluates policies of the parent company, operating company, and those of selected services (depending on company structure).  US-based companies evaluated include Microsoft, Facebook, Twitter, Verizon, AT&T, Google, and Apple. 

Most companies improved scores in at least one area -- largely driven by stricter privacy laws in the EU.  But even the leading companies fell short in key areas.  Few scored higher than 50 percent, failing to even meet basic transparency standards, leaving users worldwide in the dark about how their personal information is harvested and used (often for profit) by these corporate entities .

In particular, RDR reports that companies fell short in the following areas:

• Privacy: Companies still do not adequately inform people about all the ways user information is collected and shared, with whom, and why.

• Expression: As companies struggle to curb extremism, hate speech, and disinformation, most lacked transparency about how they police content or respond to government demands.

• Governance: Most companies failed to anticipate and manage privacy and expression risks caused by their business models, and by the deployment of new technologies.Additional analysis of the RDR Index is available here.

 

The Largest Ever UPR Consultation, and More!

The United Nations Association - US will hold its annual Global Leadership Summit in Washington, D.C., on June 9-11.  Registration information is available here.  The Summit agenda, which includes the largest ever Universal Periodic Review consultation (!), is here.

The timing could not be more important.  The UN is facing unprecedented cutbacks to its human rights work, including the possible cancellation of country-specific human rights treaty monitoring as early as fall 2019.  In a joint letter to all UN member States, 399 civil society organisations have called on UN member States to urgently tackle the current funding crisis affecting the functioning of the UN human rights expert bodies.  The U.S. withdrawal from the Human Rights Council, its refusal to respond to UN Special Rapporteurs, and its recent announcement that it is developing its own "natural law" perspective on human rights, all contribute to giving cover to nations that would like to avoid human rights scrutiny.  The U.S. has the capacity to stop this downward spiral by stepping up to support the UN's human rights work.

The organizers write:  "It matters now more than ever that we make our voices heard to protect the vital work of the United Nations. With proposed bills in Congress aimed at slashing funding to the United Nations and its agencies, the UNA-USA community must come together and fight for what we know is right: Standing with refugees; demanding equality for women; protecting LGBTI rights; combating climate change; working for peace; and more. Every year in June, we convene on Capitol Hill to make sure Congress gets the message. Join us June 9–11 for the 2019 Global Leadership Summit."

 

 

Somali Torturer Liable under Torture Victims Protection Act

Despite the narrowing scope of the Alien Tort Statute, U.S. courts remain a place where, in some circumstances, torturers and human rights violators can be brought to justice.  One such case, addressing torture that occurred more than three decades ago, was resolved at the end of May.

On May 21, a Virginia jury found Col. Yusuf Abdi Ali (aka “Tukeh”) responsible for the torture of semi-nomadic Somali herder Farhan Warfaa.  Col. Tukeh was a high-ranking military commander in Siad Barre’s decades-long military dictatorship in Somalia.  The evidence established that in 1987, Mr. Warfaa was rounded up with other men from his village and taken to the Military Headquarters of the Fifth Brigade of the Somali National Army, where Col. Tukeh held command.  Mr. Warfaa testified that Col. Tukeh’s soldiers tortured and interrogated him over a period of months, and that Col. Tukeh himself shot Mr. Warfaa multiple times at point blank range, leaving him for dead.  Miraculously, he survived.  

While Col. Tukeh ultimately moved to the United States, Mr. Wafaa remains a resident of Somalia.  Tukeh, the BBC reported, was working as an Uber and Lyft driver in Washington, D.C. until May 2019.

Mr. Wafaa's case was initiated fifteen years ago, brought under the Alien Tort Statue as well as the Torture Victim Protection Act.   In the intervening years, courts dismissed the allegations of war crimes and crimes against humanity, creating new, narrower law under the ATS.  However, the TVPA claims proceeded to trial.

The jury awarded Mr. Warfaa $500,000 in damages, including $100,000 in punitive damages.

Mr. Warfaa was represented by the Center for Justice and Accountability and the law firm of DLA Piper LLP.  The pleadings and briefs filed in the case are available here.

NEW COMMISSION ON UNALIENABLE RIGHTS TO REVIEW WHERE HUMAN RIGHTS CONFLICT WITH US FOUNDING PRINCIPLES

Last week the Federal Register published notice that the State Department intends to establish a Commission on Unalienable Rights that would "provide the Secretary of State advice and recommendations concerning international human rights matters. The Commission will provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights."  The Commission will be separate from the State Department's Human Rights Bureau. 

Politico reports that “The Commission will provide fresh thinking about human rights discourse where such discourse has departed from our nation's founding principles of natural law and natural rights,” states the notice, which is dated May 22. "  Some are concerned that the reference to "founding principals" is code for suppressing the rights of women and members of the LGBT community.   

"The word  'natural' in such context is often interpreted to mean “God-given,” a phrasing that is less common in modern human rights literature but which could signal a religious component, experts said."  Secretary Pompeo said that the Commission will review "how we think about human rights inside our efforts in diplomacy." 

The Register lists Kiron Skinner as the contact person. Early in May Think Progress reported Skinner's statement that "the United States can’t focus on human rights if it wants to combat China — and that China presents the first time the United States has faced a great power competitor that isn’t “Caucasian” and that China presents "a different civilization."

Professor Robert George of Princeton University has been involved in the creation of the Commission.  ABC News reported that Prof. George is "co-founder of the National Organization for Marriage, a nonprofit that advocates against same-sex marriage, is among the 15 academics recommended to make up the panel, according to the source.  Author of the 1999 book "In Defense of Natural Law," where he argued against homosexuality and abortion rights and in favor of religious liberty, George also wrote the original concept note that outlined a vision for the commission, the source said.