Human Rights at Home Blog

Time to Reflect and Regroup for 2020

 

Human rights advocates in the US have had a challenging year, with more sure to come in 2020. 

We applaud the many activists, advocates, and those most affected by human rights abuses who have continued to press for progress despite the challenges.  While taking a pause is a luxury that not all can afford, for those who can, year-end is a good time to reflect and regroup.  That is exactly what we will be doing at the Human Rights at Home blog from now until January 2, when we will return to start a new decade with renewed energy, ideas, and human rights at home reporting.  Meanwhile, best wishes to all for rest and rejuvenation at the turn of the year. 

Congress Passes Ban The Box!

In an amazing bi-partisan collaboration, last week Congress passed Ban The Box legislation.  Under The Fair Chance To Compete For Jobs Act of 2019, the federal government and private employers contracting with the federal government will be unable to ask about a candidate's conviction history on a job application.  These employers will be unable to inquire regarding criminal records until after a conditional offer has been made. Hundreds of thousands of formerly incarcerated people will have a chance of being hired under the new act. 

Downside:  The law will not take effect until two years from when the law takes effect, presumably the day when the President signs the bill into law. 

 

Urgenda Decision sets a Precedent for Other Courts

On Friday, December 20, the Netherlands Supreme Court ruled in Urgenda v. the Netherlands that human rights obligations mandate that the Dutch government reduce the nation's greenhouse gas emissions to 25% below 1990 levels and that it must meet that goal within the next year.

According to Dennis van Berkel, legal counsel for Urgenda, it was the first time any court in the world had rested its decision on the human rights implications of climate change.  In particular, the court cited the government's obligations to protect the environment under Articles 2 and 8 of the European Convention of Human Rights involving the right to life and the right to a private and family life.  Said van Berkel, “The court was very clear. Human rights protect people against the impacts of climate change and the government and parliament have to respect those human rights when defining their policies. That’s why this is a case for the courts to decide, because the dangers of climate change are so massive that they are human rights issues.” 

In the U.S., an earlier ruling in the Urgenda case was cited with approval by the federal district court in Juliana v. United States, a challenge to US government environmental inaction under a constitutional public trust theory.  The new Urgenda decision provides additional guideposts for U.S. courts considering climate litigation.  Analogous to the European Convention, Articles 6 and 17 of the International Covenant on Civil and Political Rights specifically provide for protection of the rights to life, and to a private and family life, respectively; the U.S is a party to the ICCPR. Likewise, the American Declaration of the Rights and Duties of Man (while a Declaration rather than a treaty) protects the rights to life and to privacy in Articles I and V.  Beyond federal litigation, state courts examining the meaning of their unique state constitutional protections may be particularly interested in learning about the Urgenda court's interpretations of privacy and the fundamental right to life.  

The Urgenda Court's decision lays down a marker that other courts around the world will have to grapple with, and as Justice Breyer has repeatedly urged, U.S. judges should be open to learning about how other jurists, particularly in the world's high courts, have boldly dealt with these shared challenges.

Baltimore and Affordable Water Advocacy

Last month Baltimore City Council passed the Water Affordability and Equity Act.  Baltimore residents experienced sharply rising water.  The rising cost attributed to the City's infrastructure work geared at ensuring clean water.  Both owners and tenants were affected by the high cost of water.  Low-income tenants were particularly hard-hit when the terms of their tenancy made them responsible for water costs.  Particularly troubling were evictions caused by non-payment of the water bills yet tenants were unable to dispute excessive bills because the bills were in the landlord's name.  

The act provides four specific forms o relief for tenants.  Tenants will have direct access to past and present water bills; lease must state specifically if tenants are responsible for payment of water or sewer costs; renters will have access to a Water For All Discount Program; a new Water Advocacy and Appeals has been established as a dispute resolution pathway for tenants to resolve water payment disputes and obtain protection from eviction.

The human right to water has been a frequent topic on this blog.  Recently Martha Davis wrote a post on the  US reluctance to agree that the water is a fundamental human right.  Also referenced is the report Closing the Water Gap.  The report addresses advocacy efforts in California.  For those working on affordable and clean water the California and Baltimore experiences may provide some guidance.

 

Hooray for Kansas City!

Good news from Kansas City (MO) became the first US city to provide free transportation to its residents. The city council voted to expand free transportation from light-rail only to include buses.  As one city counselor stated: “When we’re talking about improving people’s lives who are our most vulnerable citizens, I don’t think there’s any question that we need to find that money, that’s not a ton of money ($8 M) if we want to prioritize transportation, it’s something that we can find.”  

This blog has posted before about the human right to transportation.  Transportation is the resource that ensures other rights may be exercised, such as education, medical care, and employment.   Additionally, free public transportation is a goal of environmental advocates because of the anticipated lessening of vehicle pollution.   

Three cheers for Kansas City!

Protecting People Experiencing Homelessness

By declining to hear the 9th Circuit case of  Martin v. Boise, the Supreme Court permitted to stand that circuit's ruling that people who experience homelessness cannot be criminally charged for sleeping in public outdoor spaces without offering the individuals alternative shelter. This case arose in the criminal context where the City of Boise sought to arrest those sleeping in public who were homeless.  This case is part of a broader trend across the US to criminalize homelessness and poverty.  The case recognizes the lack of choice that leads to homelessness and emphasizes that the governmental unit must provide a reasonable alternative.  Arrest addresses a municipality's immediate concern while contributing to worsening the problem as those who then have criminal records will have even a lesser chance of obtaining adequate shelter.

The case both on the Supreme Court and Circuit levels is an  advancement in legal recognition of a fundamental human right to shelter. In particular, this decision recognizes the state's obligation to provide adequate shelter to those who do not have adequate housing or other shelter.  Perhaps results in Martin v. Boise will prompt cities and states to consider sustainable solutions to homeless such as affordable housing construction, education and skills training.

 

The Regs They Are Achangin'?

by Justine Dunlap, who continues her exploration of the challenges facing survivors of gender violence and their advocates.

In the next several weeks, the Department of Education is set to finalize Title IX regulations it proposed in November 2018. During the notice and comment period, the proposed regulations received over 100,000 comments. According to some reports, DOE made modest modifications as a result. However, it appears that the final regs will largely track the proposed ones. The changes from the way Title IX complaints/investigations were handled under Obama-era guidance include: 1) allowing schools to use a higher level of proof—a clear and convincing rather than a preponderance of the evidence standard, 2) mandating some type of cross-examination, which had been previously discouraged, and 3) imposing a narrower definition of acts that would violate Title IX.

On December 10, 2019, four congresswomen—including Elissa Slotkin, the representative from the district encompassing Michigan State University, the situs of Larry Nassar’s crimes and an ineffectual Title IX investigation—introduced a bill that would prohibit DOE Secretary Betsy DeVos from implementing the regulations. What will happen next is unclear except for this: the battle will rage on. And at least partially obscured in the battle will be some of the problems that pre-existed the proposed regs. Prior guidance could be fuzzy and/or overinterpreted to err on the side of extreme policies that benefitted few but the cottage industry of Title IX trainers that has emerged over the past several years. New regs would be most helpful if they created a clearer process and implemented ways that actually supported victims who choose to report, without simultaneously creating the impression that the outcome was foreordained.

 

Femicide In France

by contributing co-editor  Prof. Justine Dunlap

 

On November 23rd, two days before the International Day for the Elimination of Violence Against Women, a crowd estimated between 35,000—100,000 marched in the streets of Paris to protest that country’s problem with intimate partner violence. Many carried signs with the names and ages of women who had been killed. Other cities such as Strasbourg and Lyon also saw marches. France’s rate of 26% of women reporting partner abuse is below the global average of 30% but is the 6^th highest of the 28 E.U. countries. There is a femicide in France once every three days, according to figures kept by the government. Women’s advocates have been drawing attention to the problem throughout the year; these efforts have included putting up posters every time a woman is murdered.

The protests were also timed to occur just before the government announced new efforts to combat IPV. Among the new efforts introduced are school-based awareness programs, more social workers in police departments, and new laws recognizing psychological abuse. Advocates for women argued that the funding was inadequate to meet the task. Even with the new programs, the proposed budget to combat IPV is roughly the same amount as the French government allotted to the issue last year. This amount, roughly $400,000, is not only less than what activists had sought but also less than a government advisory body had said was necessary to address the problem.

It seems likely that marches will continue; protests happen in France regularly—viz. the yellow vest movement. Here in the U.S., we have our movements too--#Me Too, for instance. But what if all U.S. survivors took to the streets one day, along friends, family, and co-workers of those women killed by current and former partners. That would be quite a day.

Gravity and the Commission on Unalienable Rights

by Prof. Rachel Lopez, Guest Blogger, contributes to the discussion on the Commission for Unalienable Rights  

 

Secretary of State Mike Pompeo has launched a controversial human rights commission to address what he believes is the corruption of human rights discourse. He charged this Commission on Unalienable Rights with proposing “reforms of human rights discourse where it has departed from our nation’s founding principles of natural law and natural rights.”

His reference to natural rights harkens back to a time when legal scholars believed that God, not government, imbued humans with rights. He blames the human rights movement for blurring the line between those rights that are “unalienable,” or God-given, and those that are man-made.  In line with the Trump administration’s general nostalgia for a time when religious, predominately Christian, values took precedence, Pompeo hopes that the commission will return primacy to God-given rights, thereby making human rights great again.

Pompeo and the members of the commission have all linked God-given rights to gravity, a key concept in international law. Like Pompeo, the new chairwoman of the commission, Harvard Professor Mary Ann Glendon, believes that only a handful of “unalienable rights” should be prioritized. She counts “prohibitions of torture, enslavement, degrading punishment, of retroactive penal measures, and of other grave violations of human dignity,” as worthy of heightened protection, but also the “freedom of religion and conscience.”

Her inclusion of religious freedom derives from her belief that so-called conscience rights, defined as the right not to be forced to do something contrary to deeply held beliefs, are particularly under threat due to the rise of secularism. She and two other commissioners share the belief that requiring health insurance companies to cover contraceptives is “a grave violation of religious freedom.”

As the very mandate of Pompeo’s commission demonstrates, one of the greatest ironies and dangers of “God-given” rights is that they are defined by governments. And governments do not always agree. In the “good old days” of natural rights, the nations with the most military might imposed their version of what was good and just through violence. This approach to international relations ushered in decades of wars and brutality in the name of God.

In the aftermath of two devastating world wars, modern international law was born. This brand of international law is decidedly more concrete and collective. Instead of acting unilaterally, nation states increasingly work together to identify and punish gross violations of the law of nations. Rights and duties have also been spelled out in treaties and judicial decisions. The current international legal order is certainly not perfect, but it has resulted in a more peaceful world.

Instituting a national commission that will unilaterally define a narrow set of God-given rights in line with the United States’ founding principles risks undercutting these recent advances. The commission cannot redefine fundamental human rights in a vacuum. Should the commission wish to use gravity to anchor its work, it must draw from the existing law of gravity. To some extent, gravity has suffered from some of the same ambiguity as God-given rights, which leaves it subject to manipulation. 

However, as international law matures, what amounts to a grave violation has become clearer — and a set of common factors that decision-makers typically weigh when determining whether a violation is grave. 

Courts and other international bodies have provided fairly specific guidance: Violations are grave when they are universally condemned, done deliberately and either acutely harm a limited number of people or are so widespread and systematic that the cumulative harm is severe. For example, the extrajudicial killing of journalist Jamal Ahmad Khashoggi is a grave violation of international law, but so is the pillage of villages in South Sudan.

Likewise, these bodies have found that violations that injure vulnerable populations like children, involve an abuse of authority, particularly by state actors, or occur over an extended period of time are likely grave. For instance, the United Nations has passed a resolution identifying six grave violations affecting children and established a special unit to monitor these violations. These factors should serve as guideposts and, in some instances, constraints on the commission. 

If the commission simply makes human rights up as it goes along, without grounding its work in international law, it will propagate the “loose talk” of human rights that Pompeo detests. Pompeo is right about one thing: Making human rights great requires more.

Editors' Note: This piece was first published in The Hill.

Focus on The Commission On Unalienable Rights and Abortion

The Columbia Human Rights Law Review On-Line continues with its publication of articles addressing the Commission on Unalienable Rights.   Continuing our discussion of reproductive rights, this time in the framework of the Commission, we address a recent publication appearing in Columbia's  On-Line Law Review.  The article is Canary In The Coal Mine: Abortion Rights and The Commission on Unalienable Rights by Akila Radhakrishnan and Elena Sarver both of the Global Justice Center.  The abstract follows:

This past July, the Trump administration announced the creation of a new body with a curious name—the “Commission on Unalienable Rights.” Secretary of State Mike Pompeo described the effort as an attempt to “ground our discussion of human rights in America’s founding principles.” However, universal human rights norms exist to hold states accountable: they cannot be defined, redefined, or limited based on the demands or viewpoints of a single government. While Secretary Pompeo claims that he wants to depoliticize human rights, this commission does the exact opposite.

The establishment of this panel is yet another offense on the international system as part of the Trump administration’s regressive agenda. This action follows a clear pattern of ideological attacks on US engagement with the human rights system and the norms they uphold. Such recent examples, as this submission will discuss in greater detail, include withdrawing from the Human Rights Council, erasing reproductive rights from human rights reports, and cutting funding to the Organization of American States in an attempt to censor abortion-related speech. Additionally, the denial of abortion care to women held in detention at the US border, the problematic nomination of Andrew Bremberg as US Ambassador to the Office of the United Nations and Other International Organizations in Geneva, and the removal of language referencing sexual and reproductive health care in UN Security Council Resolution 2467 also fall into the administration’s pattern of undermining the importance of women’s health and bodily autonomy.

The full article may be downloaded here.

Disregard of Women's Autonomy: SCOTUS Decision Not To Decide

SCOTUS has declined to hear a challenge to a Kentucky law that requires details of ultrasounds be given to women seeking abortions.  Among other details, the ultrasound law requires that the "fetal heartbeat" be played for the pregnant woman. 

Could there be any clearer message that SCOTUS supports abortion restrictions that are unrelated to health law?  The requirement reinforces the distrust of women's decisions and efforts to control those choices.  Playing sounds of a "heartbeat" has no relevance to medical safety, leaving the rationale for the requirement to dissuade women from completing abortions.  Emotional manipulation should find no cover in the law.  But it has. 

 

 

 

Human Rights and Reproductive Rights at the Supreme Court

Briefing is ongoing in June Medical Services v. Gee, the challenge to Lousiana's restrictive regulation of abortion clinics.  Amicus briefs filed last week in support of the plaintiffs challenging the clinics included several that address human rights issues.   The amicus brief filed by Women with a Vision and others addresses human rights norms most directly, citing supportive decisions of the Human Rights Committee, statements by the CEDAW committee, and other international human rights materials.  The brief concludes that "Act 620 will effectively cut off access to abortion services and related health services in Louisiana for marginalized populations in violation of their human rights."   

While not relying directly on human rights materials, several other amicus briefs filed in the case put into practice the international human rights principle of participation of those most affected.  In particular, two amicus briefs were filed by women who had abortions.  One, with Holly Alvarado as the lead signatory, sets out the personal stories of several women who had abortions.  A second brief, with Michelle Coleman Mayes as the lead signatory, brings to the Court the experiences of 368 of their female peers -- women lawyers, judges, and other legal professionals who had abortions. 

In appellate litigation, courts are often presented with legal issues stripped of their human consequences.  When human rights are at stake, however, serious consideration of the impacts on those most affected, as expressed by the affected individuals themselves, is critical to a legitimate outcome.  Far from being surplusage, these briefs provide a perspective that is critical to the merits of the case.  

Your Guide to Defining and Researching the Human Right to Education

Jootaek Lee, an assistant professor and librarian at Rutgers Law School, has just published a new article that  provides a bibliography, a definitional discussion, and a research guide to the Human Right to Education, available for download here or through the Emory International Law Review.  Lee's earlier research guide on the Human Right to Water is also available through SSRN or through Northeastern Law School.

Why is Lee focusing his scholarship on human rights, and education in particular?  We asked him, and here's his provocative and nuanced response, particularly pertinent given moves to privatize education worldwide:

"I am motivated to write this article because I believed that the promotion of the human right to education is an ultimate solution to many human rights issues and empowers other human rights, especially economic, social and cultural rights.  A clear definition of the human right to education and delineating the boundary and scope of education to be protected will enhance its promotion and protection. Since this traditional human right to education has a long history since 1940s, scholars have defined education in many different ways, and the traditional definition using availability, accessibility, acceptability, and adaptability have been threaten by commercial approaches, self-regulatory market of capitalism and modern liberal theories."

 

The Impact of US Ambivalence on the Human Right to Water

A few weeks ago, on the occasion of the UN General Assembly's resolution on World Toilet Day, the United States took the opportunity to make a formal statement stressing its ambivalence concerning the human right to water.  The statement emphasizes that since the US is not a party to the International Covenant on Economic, Social and Cultural Rights, the US isn't bound by any right to water derived from its provisions.  The right to live in the International Covenant on Civil and Political Rights, to which the US is a party, doesn't implicate water, the US asserts.  And any discussion of the relationship between water rights and climate change doesn't belong in the General Assembly in the first place, the US charges.

Meanwhile, in Flint, Michigan and elsewhere in the US, we can see the on-the-ground consequences of US refusal to acknowledge the human right to water -- a right that, under international law, requires progressive realization rather than immediate achievement. In Flint, for example, residents have lost trust in government's assurances about water safety.  The city is in the process of replacing lead pipes, but has been unable to fully complete the work and move on from the crisis in part because of a general lack of trust in Flint's government and its water initiatives.

While certainly not perfect, California's legal infrastructure on water provides a sharp contrast that ripples through that state's communities.  With the legal recognition of the human right to water embedded in California law, legislators and advocacy groups have been able to make important, if partial, progress toward realization of the right.  In the summer of 2019, the Governor signed a new law creating a fund to support clean water access to vulnerable communities, a move widely praised by advocates.  The state's Human Right to Water on-line portal  -- a work in progress -- promises to describe other initiatives, and provide data to facilitate continued monitoring of the state's realization of the right.  

The recent comprehensive research report titled Closing the Water Access Gap acknowledges that simply declaring a human right to water isn't enough, but notes that the framework adopted in California has changed the framework for advocacy and legislation, and has supported further progress. 

Unfortunately, as a nation, the US still hangs back, refusing to acknowledge the fundamental human rights to water and sanitation, and instead reinforcing the lack of trust in government that stifles progress.

 

Mapping Risk at Work

Recently US News reported on an endeavor that mapped worldwide deaths at work.   While safety risk data is not consistently available, the researchers estimate that 2.8 million people died in 2017 from work-related deaths and diseases.  The report notes that according to UN data, 69,000 died in state-related conflicts.  

Other findings include the following:

• Complying to worker safety is challenging. Developing countries do not report statistics on concerns such as occupational safety or disaster-loss metrics. There is also very little data on public understanding of risk.
• There are around 340 million occupational accidents and 160 million victims of diseases related to work reported every year. Overall, the global economy is losing 4% of its gross domestic product due to such issues, which translates into about $3.2 trillion.
• In the European Union, work-related ill-health and injury cost the bloc about 3.3% of its annual GDP, more than $524 billion in 2015.
• In 2017, 4,674 worker fatalities in the United States happened in the private sector; 971 or 20.7% of these fatalities were in the construction sector. In addition, fatal falls were at their highest level in the 26-year history of the Census of Fatal Occupational Injuries accounting for 17% of workers' deaths.

The report acknowledges that many countries are signatories to conventions demanding worker safety, yet data collection is inconsistent.  The report, according to US News,  notes that the U.N. Office for Disaster Risk Reduction in the 2019 Global Assessment Report calls for a "democratization of risk information."  As with many agreements, policy without practical implementation postpone available human rights remedies.

 

Acknowledging World AIDS Day

This week celebrated World Aids Day. We celebrate that for many HIV/AIDS is a chronic condition that will not result in death from the condition.  And we celebrate the latest development that an Indian company has developed a strawberry flavored medicine that will provide infants with palatable, life-saving medication at the cost of only $1.00 per day.  

But very real ongoing human costs of AIDS/HIV exist.  Approximately 80,000 babies and toddlers die of AIDS yearly and 160,000 children are born with AIDS each year.  37.9 million people worldwide live with HIV or AIDS.  1.1 million of that number live in the United States.

We are fortunate that mortality rates are low and getting lower in the United States, particularly when compared with Africa.  But we need to acknowledge the ongoing struggles of those living with HIV/AIDS.  Approximately 37,000 new cases of HIV/AIDS diagnosed in 2018 in the US.   The increase in opioid use is a particular source of new infections among younger people. AIDS Alabama has announced a planned project that will provide homeless youth with safe shelter in Birmingham.  The residence will provide transitional housing, as well.  Safe housing will be a powerful tool against opioid use and the spread of AIDS.  Some living with HIV have no security of regular medical interventions.  Rural America is experiencing an increase in diagnoses, as well, but it is there that helpful resources are fewest.

Stigma still exists for those living with HIV/AIDS and discrimination reveals itself in employment, housing and other areas that impact daily living.  And criminalization of HIV/AIDS continues in many states.  So while medical advances have improved the lives of those living with HIV/AIDS, in the US we must be mindful of the stressors that impact the day to lives of those living with HIV/AIDS.  

We optimistically head toward the day where the conditions will be eliminated.  AIDS United projects 2050 as the year for reaching that goal.  Until that day we honor those who live with repercussions from discrimination that attaches to an HIV or AIDS diagnosis.  

 

AJIL Unbound Publishes Symposium on the American Convention on Human Rights

AJIL Unbound has posted the papers for its on-line Symposium on the American Convention on Human Rights.  Topics range from the role of NGOs in the Inter-American system to the rise of conservative governments in Latin America.  For a sample of the symposium, here is the abstract of the latter article, authored by Professor Jorge Contesse of Rutgers Law School:

Abstract

In 2009, as the American Convention on Human Rights turned forty, left-wing governments ruled in almost all Latin American countries. The democratization wave that began in the late 1980s had produced a seemingly hegemonic turn to the left — the so-called “Pink Tide.” A decade later, the political landscape was radically different. With only a few exceptions, right-wing governments have been in power throughout Latin America. The implications of the conservative wave are felt in a number of areas — including human rights.

This essay explores the ways in which the new conservative governments of Latin American have tried to curb the inter-American human rights system and examines the potential long-term consequences that their efforts may have on the regional system and the protection of human rights. It then suggests possible avenues for sound engagement between states and the system, observing that the Inter-American Court’s expansive case law may cause more harm in the long run.

 

Sign On Today To Support Inter-American HR Principles On Migration

 

From Cornell Visiting Clinical Professor Ian Kysel:

As you may know, the Inter-American Commission on Human Rights has for a number of years been working (with the support of the International Migrants Bill of Rights Initiative) on developing a set of Principles on the human rights of migrants in the Americas. Indeed, you may have reviewed or submitted comments on the most recent public draft in response to the Commissioner’s Questionnaire of this past February (available here:http://www.oas.org/en/iachr/reports/questionnaires.asp). In order to support the completion of this project and signal civil society’s view of the importance of a robust set of Principles, we hope you will consider signing on to the attached letter. Please indicate your willingness to do so by Monday 2 December 2019 by emailing me directly. I hope you will join me in supporting the Commission and this project.  To review the letter or for other information or to sign on contact Ian at:

[email protected]