Human Rights at Home Blog

The Language Barriers to Overcoming Anti-Asian Bias

By Jeremiah Ho

My first “formal” lesson about American racism was in the second grade when Ms. Wildermuth taught us about the life and death of Martin Luther King, Jr. in tandem with his birthday holiday.  This was January 1984, a little over a year after my family and I had immigrated to Orange County, California from Taipei, Taiwan.  My fluency in English was deepening.  After a year in ESL, I was more frequently forming my thoughts in English (thus, abandoning my thinking in Mandarin) and often called upon at school to interpret for my older cousins who had also just moved to the U.S. and attended the same elementary school.  In Ms. Wildermuth’s classroom, I sat next to Melanie, the only African-American girl in our class.  As we listened to Ms. Wildermuth trace Dr. King’s heroism to the history of enslaved peoples and followed along with the lesson packet that she had given us, I had a strangely comforting thought that perhaps this hatred and prejudice that white people held against outsiders were exclusively directed toward African-Americans and that perhaps people like me were spared because we weren’t Black.  I hoped that this were true.  It seemed logical—after all, Ms. Wildermuth’s lesson about American racial prejudice didn’t mention any Chinese people.  I’m sorry, Melanie, I thought turning to her on my left.  Tag, and you’re it.

This idea, of course, was naïve thinking.  Separate from this formal lesson on racism, I had already garnered a few informal ones so far in my short time here.  In the prior year, during those early months of first grade, when I had to guess what schoolteachers were saying to me and when simple words in the English language were still escapable, had I not been made to feel like an outsider?  The first time classmates used their index fingers to pull up their eyes at me, I had no clue of their intentions.  But by the third or the fourth time, when I realized the gesture was to mark me as different and foreign, a feeling of threat and loneliness then calcified.   In response, wasn’t that why had I suddenly taken up an American first name and insisted that everyone from the school-bus driver to the cafeteria ladies stop calling me by the phonetically-translated Chinese name on my official documents?  Wasn’t that the reason why I consciously imitated the way the American kids spoke English so that I could flatten out my accent?  Wasn’t that exactly why I was thinking in English so that perhaps American was something I could become?   Didn’t these incidents also amount to lessons on racism—however informal, and self-taught?

That night, not only did I relay to my parents what we had learned about MLK, Jr. but also my thoughts that we were safe because we weren’t Black.  I assumed I was delivering good news, in the way I had, as the interpreter in the family, been able to sometimes unlock confusion.  Perhaps this was a moment I could translate America for my parents, give them a lesson for once.  Because they were definitely foreigners compared to me and my burgeoning assimilation.  To my surprise, my parents rejected my logic.  They chuckled nervously and then the weighted seriousness in their voices relayed how far I had misperceived the entire predicament of racialized America.  White people can still hate us because we are outsiders to them, they said.  Let us tell you about the story of a Chinese man in Detroit who was beaten to death by some Americans who hated Japanese people and had mistaken him for being Japanese.  This was the recent story of Vincent Chin—my second lesson of the same day about another person who was killed for what the color of their skin signified.  The feelings of safety that had trailed me home after school were suddenly swept gone.  “So just keep your head down,” my father concluded with a solution, a verbal, solemn pat on my head.  My mother, the usually more feisty parent, disagreed at first but eventually thought pacifying was best.  “Just make sure you tell us if someone treats you badly.”

I never did, nor would.  A few weeks later when an older white boy at school insisted that I ate cats and should go back home to China, I pretended not to understand what he had said—even though I probably had the exact English words to tell him that China was really not my home.  Instead, I pretended not to comprehend.  English, after all, was just my second language.  I was only starting to learn it.

Because representations of Asian-American and Pacific Islanders are so scant in popular culture and media, I always notice and fixate when there’s an Asian character in film or television or when news items focus on Asian-American experiences in some way.  (I do this similarly with queer representations too.)  In the last several weeks, I’ve never seen more media and cultural focus on the AAPI community.  And I’ve been consuming as much of it as I can find—reading, watching, listening between my online Zoom classes for my law school and office hours; while waiting for responses to an article submission on Scholastica; between conference calls with colleagues during this socially-distanced time.  It’s profoundly sad, however, that all of the focus stem not from something positive, but from, first, the horrific shooting at three Asian-owned Atlanta spas by 21-year old Robert Aaron Long, and then more broadly, from the 149% rise in hate incidents against AAPI individuals since the pandemic started.  Now it’s the continuing incidents of anti-Asian violence being reported on the news.  This week, the video from Manhattan of sixty-five year-old, Vilma Kari, who was beaten outside a luxury apartment complex while the complex’s security guards and workers ignoring the whole situation is just another example of this alarming trend. 

On the whole, two-thirds of such hate incidents have occurred against women of Asian descent.  Many have connected both the Atlanta shootings, in which 6 of the 8 victims were Asian-American women, and this rising trend of hate and violence directly to the Asian scapegoating and spreading of anti-Asian sentiments during the pandemic—particularly the racist “China-virus” rhetoric widely perpetuated by Donald Trump and his supporters.  Two weeks ago, Asian-American congressional legislators reignited urgency to pass the COVID-19 Hate Crimes Act, and the House held a three-hour hearing on anti-Asian hate and xenophobia, the first time for such a hearing in decades.  Yesterday, the White House revealed a half-dozen new actions to respond to these increasing recent attacks and harassment on AAPI individuals and communities.  Protests and demonstrates have taken place across the country.  It’s been incredibly profound to witness all of this.  In thinking about the recent shootings more specifically, I know that Atlanta, Georgia is thousands of miles away from where I am currently in Southern California, but the Asian-American experience is also one that tracks across coasts and connects my family’s lived experiences with these incidents in some broader historical context.  We metabolize media news so quickly these days, but for one moment, it seems like we are lingering to acknowledge that the lived experiences of Asian-Americans matter.       

My hope is that the loved ones and families of the 8 victims in Atlanta will find healing and peace.  And for the sake of the victims’ memories, I also hope that the incident is ultimately understood as being more complex than the reverberations of someone’s “bad day” and that the cultural scapegoating we place on people of color are called out for its deadly perniciousness.  The racist rhetoric disseminated during this pandemic and the sexualization of Asian women are both part of the same systemic, marginalizing stroke that the dominant status quo, motivated by white supremacy, has exerted continually against Asian-Americans to “other” us—to keep us wearing the perpetual foreigner hat on our heads.  In response, we Asian-Americans have often resorted to “keeping our heads down” and being model citizens, so that they can’t get us or maybe they’ll move onto someone else.  Out of caution, we let the racial narrative take its Black-versus-white binary and stay out of harm’s way.  Or else, tag, you’re it.  The easiest thing is to pick up an Anglo first name; it’s admittedly harder to lose the accent, but not impossible if you try.  You just have to have an ear for it.  And when they do go after you, just be quiet.  Pretend you didn’t hear them; pretend English is a foreign language.  Feign ignorance.  But know that if you force yourself to stay quiet too long, they’ll put a narrative on you, too—they’ll fill in their version of you in the blanks.  Or put words in your mouth and tell you to perform.  Usually for their advantage.  You’ll be the good perpetual foreigner.  You’re the smart Asian.  The dependable one.  Harmless.  The emasculated male.  Fu-Manchu.  The submissive but hyper-sexualized vamp with a heart of gold.  Suzy Wong, Cio-Cio San, Miss Saigon—take your pick.  The one with not enough personality for an Ivy League education.  Math nerd.  Invisible.  The good POC.  The model.  Crazy rich and also crazy poor.  Yellow Peril.  The Virus.  Very easily our lived experiences are erased, replaced with convenient cultural scripts. 

So the surprise that Asian-Americans have suffered within the larger racial discord in this country is unfortunate.  The rest of the country is waking up to something that’s always been there for us.  I got good enough trying to “be American” that a law school classmate later said to me, “But Jerry, you’re not like those Asians.”  So good, so invisible that years later when I was employed at a predominately white place of work, a co-worker lamented during a group diversity training session that the problem with race at our workplace was that “We didn’t have any people of color.”  I pretended not to have heard that.  Later when another colleague approached me about it, asking whether I had felt marginalized, I lied to her, saying that I hadn’t been paying attention.  A white lie to a white colleague, because my instinct was to not rock the boat.  Last summer, when I was trying to convey to the dean of my law school that I was hesitant to fly back to the Northeast if the university reverted to in-person teaching, I stuck to the public health script rather than bring up my fears of safety as an Asian-American living alone in New England, away from family and community.  Have you seen the videos of people like me being taunted in the subway?  Being blamed for the virus?  Being told to go back home to China?  I felt too ashamed to go there, even though I knew my dean would have understood.  It wouldn’t matter anyway, I thought then.  I’ll just keep my head down and nothing will happen.  Naïve thinking.  

The reluctance of law enforcement to see anti-Asian racism in the Atlanta shootings is another attempt to fill in the blanks for us—the plausible deniability that comes from deliberately not seeing color.  But the lived experiences of AAPIs do matter.  We are not your model minority one second and then invisible the next.  The moment for AAPI individuals to be interpreters of this tragedy and this bias is now upon us.  We know that language well.  This time, I hope we won’t be silenced.  

Event: Northeastern Law's Roundtable program honoring the life and work of Mariah McGill

By Martha F. Davis

On World Health Day, April 7, from 12:10 – 1:30 pm., Northeastern Law School’s Program on Human Rights and the Global Economic (PHRGE) and the Center for Health Law and Policy will host a special Roundtable program honoring the life and work of Mariah McGill, NUSL '09.  Mariah, who had served as PHRGE’s Assistant Director, was fatally struck by a car on October 26, 2020. At the time of the accident, Mariah was a regional coordinator at Building Bright Futures in Williston, VT, and a senior fellow of PHRGE.

Mariah was passionate supporter of the human right to health, as reflected in her writings and activism. On April 7, Roundtable speakers will present their work and discuss the connection to Mariah's research and efforts. In this way, the event will build on Mariah's legacy and commitment to health equity and human rights.

Speakers include Professor Martha Davis (NUSL), Professor Gillian MacNaughton (UMass Boston), Esther Kamau (UMass Boston), and Dr. Anja Rudiger (Partners for Dignity and Rights).   More information and program registration is available here. 

News: 20 Years of Detention: Decision Time for Biden on Guantanamo Bay

Nancy Kelehar, 20 Years of Detention: Decision Time for Biden on Guantanamo Bay, Human Rights Pulse (March 22, 2021). An excerpt:

"As we approach the 20th anniversary since almost 3,000 people lost their lives in the 9/11 attacks, the 19 years of human rights abuses and crimes under international law committed at Guantánamo Bay should be recognised and ended..."

 

 

 

 

Teaching Resource: Legal Interviewing and Language Access Videos

The Legal Interviewing and Language Access videos produced by Professors Laila Hlass of Tulane University Law School and Lindsay Harris of UDC David A. Clarke School of Law are a terrific resource for law professors teaching interviewing, especially in the context of interviewing survivors of trauma and using interpreters in interviews.

I have been assigning these videos each semester to my Human Rights at Home Litigation Clinic students at St. Louis University School of Law as part of a unit on interviewing.  All of our clients are survivors of trauma and we often use interpreters in our interviews.  My students also always interview in teams.   My students tell me that they often go back and watch the videos again and again to help them prepare for interviews.  They also often specifically mention these videos in their midsemester and final evaluations.  Here are a couple of examples from student evaluations:

"The videos emphasized for me the importance of being prepared for the client interview, planning with my clinic partner regarding who will ask which questions and who will take notes, having a clear plan regarding next steps so the client knows what to expect, and being conscientious of cultural differences and implicit biases. I am using all of this information as I prepare for my client interview, especially as my clinic partner and I plan the division of labor for the interview itself. From that class, I now appreciate the impact of effective preparation on client interviews and am aware of how unprofessional we could come across if we’re not well-prepared."

"The class on interviewing was especially helpful in the x matter. We have made many client phone calls and learned the difficulties of using interpreters first hand. The class helped us shape our interview outlines to be less “Yes or No” focused, ask more probing questions, be more prepared as a team, and also add more client specific questions. We had a few clients who jumped at the opportunity to tell their story, which also required a lot of active listening. By having one partner take notes and the other conduct the interview, it allowed the interviewing partner to actively listen to what our client is telling us and easily create follow-up questions based on what we are hearing (making the entire experience more like a conversation)."

"I was never really trained on translating. It had never crossed my mind how the using the third-party pronouns could confuse a client and different ways to better serve both the attorney and the client."

You can access the videos through youtube. If you would like the teaching guides, email [email protected] and [email protected] stating your affiliation and planned purpose for the videos. They have also created a short video explaining how you might use their videos. 

Evanston, Illinois, Approves Reparations Program for Black Residents

On Monday March 22, 2021, the Evanston, Illinois, City Council approved a $400,000 allocation towards the City's Local Reparations Restorative Housing Program.  This is the first government reparations program for African Americans established in the US. 

The Evanston Reparations Program will initially make $25,000 homeownership and improvement grants and provide mortgage assistance for Black residents.  Eligibility requirements include individuals who have lived in Evanston between 1919 and 1969 or be a direct descendant of an individual harmed by discriminatory housing policies or practices during this time period. Individuals who have lived in Evanston after 1969 and can demonstrate discriminatory housing practices by the City may also be eligible.  This program accounts for $400,000 – or 4 percent – of the $10 million in funding designated by the City Council to support local reparations programs and initiatives in Evanston.

A video of the historic City Council meeting in Evanston on Monday is available here. 

Hopefully this give other US cities, and maybe even the Federal Government, the boost they need to soon establish reparations of their own.

 

Call for Papers: Yale Law Journal invites submissions on the Law of the Territories

The Yale Law Journal invites submissions on the Law of the Territories, covering the broad range of local, federal, and international issues arising out of and affecting the U.S. territories and their people, for Volume 131’s Special Issue. The deadline for submissions is July 15, 2021. From the Journal's Managing Editors:

The Law of the Territories is an emerging field that explores novel legal questions facing residents of the U.S. territories. More than 3.5 million people—98% of whom are racial or ethnic minorities—live in American Samoa, Guam, Puerto Rico, the Northern Mariana Islands, and the U.S. Virgin Islands. They are unable to vote for President and lack voting representation in Congress, even though Congress exercises plenary power over their communities. In the last five years, the Law of the Territories has experienced a resurgence of activity before the Supreme Court not seen since the Insular Cases, a series of controversial decisions from the early 1900s that endorsed the United States’s annexation and governance of its colonies. The Court’s holdings in the Insular Cases have received broad criticism for their racist underpinnings and departure from foundational constitutional principles. But the Court has hesitated to either overrule them or fundamentally reconsider its territorial jurisprudence. Meanwhile, each of the territories has developed its own distinct body of law—and the people of the territories have pressed with increasing urgency for self-determination and decolonization through both domestic and international processes.

We seek Articles and Essays that address unresolved debates, emerging controversies, and unexplored problems related to the Law of the Territories, including, but not limited to: 

• the relationship between federalism and empire;
• the challenge of cultural accommodation within the United States’s constitutional framework;
• the relevance of international models of association to the debate over territorial decolonization, and more broadly, the light that comparative perspectives might shed on the issues surrounding self-determination;
• the intersection of race, gender, and class inequality in the context of U.S. colonial governance;
• and the promises and pitfalls of territorial autonomy.

News: Is there a New Era For Human Rights on the Horizon?

JoAnn Kamuf Ward and Jamil Dakwar, Is there a New Era For Human Rights on the Horizon? What We Can Learn from the Biden-Harris Administration’s First UN Appearance, Just Security (March 19, 2021), https://www.justsecurity.org/75429/is-there-a-new-era-for-human-rights-on-the-horizon/

"It’s been a busy week for the Biden-Harris administration on the global stage. On Tuesday, Vice President Kamala Harris made the first official administration statement to the United Nations, speaking at the annual U.N. Commission on the Status of Women to underscore U.S. commitments to democracy and gender equality. Wednesday morning, the new administration made its first formal appearance at the U.N. Human Rights Council, as part of a review of the U.S. human rights record, known as the Universal Periodic Review, or UPR. This appearance was followed by an unprecedented racial justice event, co-sponsored by the U.S. Mission in Geneva and featuring prominent racial justice advocates, including Black Lives Matter founder Opal Tometi and Gay MacDougall, the current U.S. nominee to the U.N. Committee on the Elimination of All Forms of Racial Discrimination.

...This week’s UPR appearance is significant because the Biden-Harris administration is representing the United States to articulate which of the recommendations the government is committed to implementing, which recommendations it will reject, and why."

Event: IACHR Hearing on Internet Content Moderation and the Freedom of Expression in the Americas

The Inter-American Commission on Human Rights (IACHR) is in the middle of its 179th Period of Sessions, which is being held again in an all-virtual format.  While there are no hearings scheduled this week focusing solely on the US, of interest may be the hearing on "Internet content moderation and freedom of expression in the Americas" scheduled for Thursday March 25, 2021, from 2-3:30pm ET. This hearing was called by the IACHR on its own initiative (an ex officio hearing).

To register to watch the virtual hearing on Internet Content Moderation, visit: https://cidh-org.zoom.us/j/85942567179?pwd=SWY1cTVTOUp6MmhyTjR6bFNPZTV1Zz09

New Article: Family in the Balance: Barton v. Barr and the Systematic Violation of the Right to Family Life in U.S. Immigration Enforcement

David Baluarte, Family in the Balance: Barton v. Barr and the Systematic Violation of the Right to Family Life in U.S. Immigration Enforcement, 27 Wm. & Mary J. Women & L. 33 (2020). Abstract below.

The United States systematically violates the international human right to family life in its system of removal of noncitizens. Cancellation of removal provides a means for noncitizens to challenge their removal based on family ties in the United States, but Congress has placed draconian limits on the discretion of immigration courts to cancel removal where noncitizens have committed certain crimes. The recently issued U.S. Supreme Court decision in Barton v. Barr illustrates the troubling trend of affording less discretion for immigration courts to balance family life in removal decisions that involve underlying criminal conduct. At issue was the “stop-time rule” for measuring the requisite seven years of continuous residence for LPR cancellation of removal. A sharply divided court read the relevant statute very differently, and a five-justice majority interpreted the stop-time rule to further limit the discretion of immigration judges to consider noncitizens’ family ties as a defense against removal. However, modern international law doctrine suggests that customary international law is the law of the United States and should be applied to resolve questions of statutory meaning under the Charming Betsy rule of statutory interpretation. This Article lays plain the systematic nature of the violations of the human right to family life in the U.S. system of removal and argues that the U.S. Supreme Court erred when it failed to mitigate this harm in Barton v. Barr.

Biden Administration Rejects UN Recommendations to End Life Without Parole for Juveniles

The US response to the UPR Recommendations issued by the UN Human Rights Council was posted by the OHCHR last week.  The US response makes reference to some of the positive actions that the Biden administration has taken regarding human rights since the new president's inauguration in January, including depositing the instrument to rejoin the Paris Agreement on climate change, efforts to reengage with the UN Human Rights Council, and more.

It is wonderful to see that the new administration supports recommendations to ratify the Convention on the Rights of the Child (CRC), especially given that the US is the only UN Member nation that has not ratified the CRC.  However, it's disheartening to see the US refuse to support recommendations to end sentencing juvenile offenders to life without parole.  The US response notes that "[j]uveniles may receive only non-mandatory life sentences and only for particularly severe homicide offenses when warranted in a particular case. These sentences are intended to be rare and are subject to review on appeal."  

Whereas the US couched its response to the recommendations to abolish the death penalty with statements such as "President Biden supports legislatively ending the death penalty at the federal level and incentivizing states to follow the federal government’s example," there was no indication of any support for ending the practice of sentencing juveniles to life without parole.  This is very disappointing for those of us working with clients sentenced to life without parole as juveniles. 

For the past year, my clinic students and I have been representing offenders in Missouri who were sentenced to life without parole as juveniles for the purposes of parole hearings.  After legislation was enacted and a lawsuit filed by the Macarthur Justice Center, juveniles sentenced to life without parole in Missouri have been given a chance at release for the first time ever.  Under the new legislation and court orders obtained by the Macarthur Justice Center, the Missouri Board of Probation and Parole has to consider mitigation factors in its decision whether or not to grant parole, including the client’s: age, maturity, intellectual capacity, and mental and emotional health and development at the time of the offense; family, home and community environment; familial or peer pressure; characteristics attributable to youth on judgment; and more.  The first juvenile life without parole hearings under the new legislation and court orders began last summer and continue today. Under the new process, the juvenile parole hearings have gone from an 86% denial rate to a 100% grant rate.  While this is good news, children in the US deserve so much better than spending more than thirty years in a cage without hope. 

Article 37 of the Convention on the Rights of the Child requires that the arrest, detention or imprisonment of a child shall be used only as a measure of last resort and for the shortest appropriate period of time.  Moreover, Article 40 of the convention states that every child alleged as, accused of or recognized as having infringed criminal law should always be treated in a manner consistent with the promotion of the child’s sense of dignity and worth. Science supports this approach. Research shows that more than 90% of all juvenile offenders desist from crime by their mid-20s and predicting future violence from adolescent criminal behavior, even serious criminal behavior, is unreliable and prone to error. Even the U.S. Supreme Court has noted that personality traits of adolescents are less fixed than in adults, and this makes it difficult to infer that even heinous criminal behavior during adolescence is evidence of an “irretrievably depraved” character. Moreover, the Court has also noted that adolescents are better candidates for rehabilitation because of their ability to grow and mature.  

Our juvenile life without parole clients are amazing.  They are working on college degrees, volunteering thousands of hours to restorative justice programs and puppies for parole, helping friends through crises, and holding the hands of friends as they pass away from COVID in prison.  One of our clients was released last month after 30 years in prison and he is thriving.  Others are still waiting for release.  In the meantime, they dream of driving a car, owning a food truck, flying on an airplane, having children, seeing the new ferris wheel in St. Louis, eating Kentucky Fried Chicken, and more. 

In 2019, the UN Committee on the Rights of the Child released General Comment 24 on children's rights in the justice system.  The Committee recognized the need for a new comment as a "result of the promulgation of international and regional standards, the Committee’s jurisprudence, new knowledge about child and adolescent development, and evidence of effective practices, including those relating to restorative justice."  In General Comment 24, the Committee recommended strictly limiting the deprivation of liberty for children only as a last resort.  The US is far, far from that wonderful vision for juvenile justice.  But, at least the Biden administration could move the US in the right direction by supporting recommendations to end juvenile life without parole sentences.

 

Event: Reparation for Gross Violations of International Human Rights Law and Grave Breaches of International Humanitarian Law

On Wednesday March 17, 2021, from 9am-3:15pm ET, a virtual conference will take place on reparation for gross violations of international human rights law and grave breaches of international humanitarian law. Experts in international law on two panels will discuss the right to reparation under international law.  This conference is co-hosed by the Center for Human Rights & Humanitarian Law at American University Washington College of Law, Geneva Academy, Robert F. Kennedy Human Rights, and the International Law Students Association.

For more information and to register, please visit https://www.wcl.american.edu/news-events/events/detail/9196/. 

Disparate Treatment of COVID-19

By Khala Turner, 2L at St. Louis University School of Law

Amongst a unification of chaos and denial, society has been able to parse through the racial disparities that should be considered a violation of basic human rights in the aftermath of COVID-19. Human rights that are noted in the Universal Declaration of Human Rights, such as the rights to life, liberty and security of person; just and favorable conditions to work; and a standard of living adequate for the health and wellbeing. These human rights should not only be protected during COVID-19, but also should have been well established protections beforehand. As the number of people in Black communities across the globe who are diagnosed with COVID-19 continues to rise, the acts of disparity towards people of African descents grew rapidly. The ease and comfort of disparate treatment shows that racial inequity has unsuccessfully been challenged.

The risks for contracting COVID for racial and ethnic minority groups are higher due to factors such as occupation, housing, and discrimination as listed by the CDC. Growing and disproportionate unemployment rates for some racial and ethnic minority groups due to COVID-19 may lead to greater risk of eviction and homelessness, as well. When studies show disparities among racial and ethnic minority groups in COVID-19 testing, government officials and institutions should take responsibility to ensure no possible additional disparate treatment will occur. 

Racial and ethnic minorities should be concerned with the current approach to vaccine testing as well, considering historical events. During the search for medical knowledge, minorities have been historically exploited to get answers and used as Guinea pigs for testing purposes repeatedly. Consider the cases of Henrietta Lacks and the Tuskegee Syphilis Experiment. Research on Lacks’ cells led to the development of the polio vaccine, cloning, gene mapping, and in vitro fertilization. Unfortunately Lacks never knew that her cells were taken for research purposes and her family wasn’t informed until twenty-five years after her death. Similarly, in the Tuskegee Syphilis Experiment, there was no evidence that researchers informed the subjects of the study or its real purpose. The men were misled and not been given all of the facts required to provide informed consent. Throughout these experiments when consent and transparency were disconnected from subjects, authorities have displayed that all citizens do not have a right to life, liberty and security of person when medical research is involved.

Comparable to HeLa Cells and the Tuskegee Experiment research, COVID-19 has already exploited minority communities by allowing employees to expose themselves by performing essential work and destroying the right to a just and favorable condition to work. In the midst of COVID-19, authorities have released scarce means of financial support; institutions have exposed their foundational contributions to systemic racism as they do not place moratoriums on expenses and plan to send children back to educational facilities and as time progresses, many more issues that highlight racial disparities continue to unravel. While unemployment rates continue to rise, those that are forced to work to ensure that they are not evicted, means for electricity or water are not eliminated and money for food is constant then the exploitation begins to increase.

As minority communities are exploited, lives are lost, families are broken, and diseases run rampant causing more harm than good, and we must consider the generational issues that are the result of future “beneficial” medical research. Black communities have cried for help when it comes to medical treatment due to authorities dismantling trust with the lack of transparency. While looking for a COVID-19 vaccine, there should have been a shift whereas the right to life, liberty and security of person are protected with consent and transparency. The best method to protect minority and low-income communities is to allow community members similar opportunities to actively participate in medical facilities. A portion of the underrepresentation problem stems from the under-supply of minority students from public schools who are academically prepared to succeed as undergraduates and thus are able to apply successfully to medical schools.

The fundamental human rights that need protection are those that are feared by many, such as losing their adequate living standards for health and wellbeing or the possibility of being incarcerated due to truancy laws being broken by not sending their children to mandatory schooling. The fear of survival in communities where many are living paycheck to paycheck should not outweigh the fear of contracting a life-threatening disease that destroys communities much faster due to underlying systemic racist conditions. These human rights efforts should no longer begin when disparate deaths in minority communities and exposure to the virus continue to rise but should begin immediately. Authorities should be willing to review statistics and take proactive steps to ensure that exposure is low, transparency is available, and financial resources are provided.

To eliminate fears and protect society, months ago, governments should have immediately re-implemented mandatory lockdowns, expanded federal and state support for the unemployed to cover living expenses, and eliminated all non-essential travel, business and extracurricular activities. As we have seen in the last few weeks, the Biden Administration has taken small steps towards victory by passing the American Rescue Plan Act. These implementations are all important to the Black family, the minority and low-income communities. In the interim, authorities must work to ensure that healthcare costs, medical needs in all states and expenses related to alleviate COVID-19 through vaccination plans in medical facilitates are affordable or free. The initial perception behind the COVID-19 vaccination was to ensure minority communities were given the opportunity to receive the vaccine as the media questioned the lack of excitement from Black communities to sign up for it. Sadly, the socioeconomic disparities continue across the country as wealthier communities are gaining access to opportunities to vaccinate quicker than others. As people continue to travel from city to city to gain access to the vaccine, the hopes for the Biden Administration’s plan to have every consenting adult vaccinated by May 1^st are high. It is imperative that regulations are set in place to guide the actions of all State governments and vaccine locations.

In short, it is now time to continue overseeing actions and implement laws that will protect the human rights of minority communities such as being free from unfair treatment in housing and medical opportunities, and discrimination in education as children return to school. While these laws and policies may be perceived as infringing upon some people’s rights, this has never been the crux of the argument when infringing upon the rights of minorities or any low-income persons. If there is any time to continue to see a positive change in society, now is the time.

Biden Administration to Revisit Title IX Regulations

By Justine Dunlap

At long last, the announcement that so many were waiting for—with either anticipation or dread. Fewer than 50 days into his administration, President Biden dropped his charge to freshly confirmed Education Secretary Cardonas: review the Title IX regulations that went into effect in May 2020 for their consistency with Title IX. Not as tautological as it may seem, since there are differing views on what Title IX means, what its provisions require, and how its enforcement may legitimately differ, depending on whether it is a court proceeding or an administrative action.

President Biden’s announcement was not a surprise. After all, Senator Biden was the sponsor of the 1994 Violence Against Women Act.  Vice-President Biden chaired the 2014-17 White House Task Force to Protect Students from Sexual Assault. And his administration includes the highest ranking woman in American Politics: Vice President Kamala Harris.

Secretary Cardonas has 100 days to make recommendations on what, if anything, needs to be changed. The “if anything” is lawyerly caution. No doubt there will be changes. The post-announcement chatter includes whether the new regulations will be rescinded, with a return the Obama-era guidance, or whether the Biden Administration will put its own stamp on Title IX regulations. The latter would be wise. Although rule-making is time consuming, it is a surer way to go than the Dear Colleague letter guidance that was used in the prior two administrations. Also, the new regulations have much to dislike, but their move away from universities categorizing nearly all employees as mandatory reporters is a wise step. And although this process is very polarized now, perhaps there is a way to craft a product that is neither court-like with court-like protections nor perceived as inherently biased towards the accused. Then both “sides” would be mad and perhaps a good outcome is achieved.

For Hope for Human Rights, Look to Implementation

By Christian De Vos

The last decade has seen the rise of illiberal democracies and multiple withdrawals from international human rights treaties, leading some to declare the “endtimes” of human rights. Skeptics claim that the failures of states to comply with international legal obligations or to prosecute serious crimes are evidence of a movement—and an idea—in decline.

There is good reason to worry. Just over ten years ago, the Open Society Justice Initiative published the first report to comprehensively examine the degree to which states actually comply with the decisions of international and regional human rights courts. As a co-author of that report, I found the results sobering. The study concluded that an “implementation crisis” afflicted human rights systems—and consequently, too often left people that those courts were intended to protect without sufficient safeguards.

To that point, the limited power of human rights institutions to ensure compliance with their decisions is often raised as an area of particular weakness for the system at large. Given the world’s sobering realities, how effectively can courts and committees police governments who violate international and regional human rights law? But there is good reason to disagree with those who have sounded the death knell for human rights. Ten years on, a closer look reveals that there are many examples of systems—and states—working as they should to implement human rights decisions.

For instance, let’s look to the European Court of Human Rights (ECtHR), where remedies for human rights violations can take the form of financial compensation, retrials, orders to investigate, or other structural reforms. Today, there are fewer decisions imposed by the ECtHR that states have not complied with than there were ten years ago, despite an equally robust docket of cases. An improved rate of compliance from governments has likewise resulted in a significant decrease in the number of decisions needing closer follow-up—what the Committee of Ministers (CoM), the Council of Europe’s political body, calls “enhanced” review.

Council of Europe member states are also implementing ECtHR judgments more swiftly. While the number of ECtHR cases closed in under two years or less has doubled since 2011, the number of judgments that states have not complied with after five years (or more) has declined. There has also been an increase in the number of action plans and reports submitted by states in response to judgments and greater, more frequent monitoring thanks to robust engagement rom NGOs. Over the last decade, for instance, the CoM has reviewed nearly twice the number of cases that it used to.

Elsewhere, in the Americas, approximately half (68) of the 135 judgments that have been monitored by the Inter-American Court of Human Rights since 2010 have been “declared fulfilled.” This is a vast improvement from 2009, when the rate of implemented judgements stood at only 10 percent. Meanwhile, in Africa, the African Court on Human and Peoples’ Rights has taken encouraging steps to develop a new compliance monitoring framework for both the court and the African Union. The African Commission (ACHPR) has also instituted procedural rules that strengthen the role of national human rights commissions in compliance monitoring, something they did not previously do. It can also now refer instances of non-compliance to the Court and other relevant African Union organs, giving the ACHPR new enforcement teeth.

There have been strides made at the national level as well, as states have increasingly focused on developing domestic structures and/or better coordination to facilitate their human rights reporting and implementation obligations. Many have created or strengthened National Mechanisms for Reporting and Follow-up to coordinate their responses to—and dialogues with—the UN and other regional bodies.

This progress in the implementation of human rights decisions owes much to the substantial growth of civil society engagement in this field over the past decade. As findings from a recently completed multi-year research project called the Human Rights Law Implementation Project (HRLIP) suggest, litigators and advocates are increasingly incorporating implementation into their planning and litigation processes. The HRLIP also concluded, based on hundreds of interviews with state officials, judges, court personnel, lawyers, and advocates, that “implementation is most certainly occurring” and that “for a number of cases there has been more implementation than may be visible or at first appeared.” State authorities, victims, and the broad range of stakeholders at the national and international level who were interviewed by the project indicated that they still consider international justice to be a worthwhile endeavor, and one in which they are prepared to invest. This momentum has been further evidenced by the creation of new organizations like the European Implementation Network, which work to build a broader, more robust network for implementation advocacy.

This good news is highlighted in a new capstone series with contributions from scholars and practitioners, “Implementing Human Rights Decisions: Reflections, Successes and New Directions.” Launching today, the series showcases findings from HRLIP’s research as well as examples drawn from the Justice Initiative’s work with partners to implement human rights decisions in countries like Cote d’Ivoire, Kazakhstan, and Hungary. While there are no easy victories to be found, together, these stories demonstrate the value of tenacious, sustained advocacy on behalf of human rights decisions. They also remind us that implementation is not a linear process, but dynamic and iterative.

To be sure, an implementation crisis still endures; enormous challenges remain. But as we look ahead, it’s critical to recognize the progress that has been made.

Editor's note: This post first appeared on Open Society Foundation's Voices on February 17, 2021, and is cross-posted here with permission from the author.

The ICC's Ongwen Decision Is a Leap Forward in Accountability for Gender-Based Crimes

By Shelby Logan 

On International Women's Day this Monday, gender justice activists worldwide were able to celebrate a long-awaited victory. In February, for the first time in history, the International Criminal Court (ICC) convicted an individual for forced pregnancy as a war crime. The Court, in a landmark verdict, found Dominic Ongwen of Uganda, a former commander in the militaristic anti-government group Lord’s Resistance Army, guilty of 61 charges, including the widest range of sexual crimes ever brought before the ICC.  

Ongwen’s conviction on charges including sexual-based violence, forced pregnancy, and outrages upon personal dignity committed against women, is a necessary move forward for the ICC: After decades of advocacy, the international community is holding individuals accountable for sexual crimes against women during conflict.

Although sexual and gender-based crimes have always been part of conflict, international criminal proceedings during the 20th century omitted them from charges beginning with the Nuremberg Tribunal, which specifically excluded sexual crimes against women from its charter. It wasn't until 2002, the year the International Criminal Court was inaugurated, that sexual crimes against women as elements of genocide, crimes against humanity and war crimes were enumerated in international criminal proceedings. Yet, even if prosecutors initially charged a defendant with sexual crimes, the charges were usually dismissed later to prioritize charges for mass killings.

A major shift occurred in 2014, when the Office of the Prosecutor of the ICC released the “Policy Paper on Sexual and Gender-Based Crimes.” Prosecutors began to introduce more charges for gender-based crimes but still failed to convict. On behalf of victims, gender-justice advocates began writing shadow reports pushing the Office of the Prosecutor to commit to charges and follow through with prosecution. As Ongwen’s personal story is also tragic—he was one of many young children who have been forced to join the Lord’s Resistance Army—the ICC found him guilty only for crimes committed after it considered him a “fully responsible adult.“ His conviction marks a first crucial step in accountability for sexual and gender-based war crimes and a turning point.

Yet, as the gender-justice community celebrates the result in the Ongwen case, it is clear that more change is needed in world courts. Even in Ongwen’s case, only charges against women-identifying persons were included. Several charges of sexual violence committed against men were left off the docket. While sexual violence against transgender and male-identifying persons is often underreported, the Ongwen decision as well as events unfolding in China and Myanmar, may provide ground for more inclusivity in prosecuting sexual-based crimes.

Advocates have a crucial window of opportunity to advance jurisprudence on sexual and gender-based violence crimes. Combined with the latest Strategic Plan for the ICC Office of the Prosecutor, which seeks to address the underreporting of sexual and gender-based crimes, and the recent Ongwen ruling, the priority of gender justice at the ICC has been pushed to the forefront. 

Editor's note: This post was first published on the Reproductive Rights Prof Blog. Thank you to the Reproductive Rights Prof Blog for giving us permission to cross post!

March 2021 Deadlines - Calls for Inputs by UN Human Rights Mechanisms

The following UN Human Rights Mechanisms have issued calls for inputs with deadlines in March 2021 and law professors whose scholarship touches on these topics may be interested in submission:

Working Group on the use of mercenaries - Call for inputs for report on the role of private military and security companies (PMSCs) in humanitarian action (to be presented to the 48th session of the Human Rights Council, Sep 2021). Deadline March 9, 2021. Read more.

Independent Expert on sexual orientation and gender identity - Call for inputs for report on gender, sexual orientation and gender identity (to be presented to the 47th session of the Human Rights Council, June 2021). Deadline March 14, 2021.  Read more.

Special Rapporteur on contemporary forms of slavery - Call for inputs for report on the nexus between forced displacement and contemporary forms of slavery (to be presented to the 48th session of the Human Rights Council, Sep 2021). Deadline March 15, 2021. Read more.

Special Rapporteur on toxics and human rights - Call for input for report the right to benefit from scientific progress and its applications (to be presented to the 48th session of the Human Rights Council, Sep 2021). Deadline March 15, 2021. Read more.

Special Rapporteur on the rights of indigenous peoples - Call for inputs for report on the situation of indigenous peoples living in urban areas (to be presented to the 76th session of the General Assembly, Oct 2021). Deadline March 17, 2021. Read more.

Special Rapporteur on the rights of indigenous peoples - Call for inputs for report on Covid-19 recovery and indigenous peoples’ rights (to be presented to the 48th session of the Human Rights Council, Sep 2021). Deadline March 17, 2021. Read more.

Special Rapporteur on the situation of human rights defenders – Call for inputs for report on the long-term detention of human rights defenders (to be presented to the 76th session of the General Assembly, Oct 2021). Deadline March 19, 2021. Read more.

Working Group of experts on people of African descent - Call for inputs for public session and report on Environmental Justice, the Climate Crisis and people of African descent (to be presented to the 48th session of the Human Rights Council, Sep 2021). Deadline March 22, 2021. Read more.

Independent Expert on older persons - Call for inputs for report on the causes, manifestations and prevalence of ageism and age discrimination (to be presented to the 48th session of the Human Rights Council, Sep 2021). Deadline March 22, 2021. Read more.

Independent Expert on older persons - Call for inputs for report on the intersection between ageing and gender and the specific human rights concerns and challenges faced by older women (to be presented to the 76th session of the General Assembly, Sep 2021). Deadline March 22, 2021. Read more.

Special Rapporteur on the right to development - Call for inputs for report on the Climate change related policies and projects from a right to development perspective (to be presented to the Human Rights Council and the General Assembly in 2021). Deadline March 28, 2021. Read more.

Special Rapporteur on toxics and human rights - Call for inputs for impact analysis of the International Maritime Organization (IMO) (a series of meetings with the IMO in Dec 2020). Deadline March 31, 2021. Read more.

Special Rapporteur on toxics and human rights - Call for inputs for report on the lifecycle of plastics and human rights (to be presented to the 76th session of the General Assembly, Sep 2021). Deadline March 31, 2021. Read more.

This list was compiled by the International Lesbian Gay, Bisexual, Trans, and Intersex Association (ILGA).  To access wonderful monthly updates on UN Human Rights Mechanisms calls for inputs and country visits schedule, visit: https://ilga.org/newsletters.

Event: Role for Human Rights Institutions in Support of Rights-Based Implementation of the Paris Agreement

On March 24, 2021, from 9am-11am ET, the UN Office of the High Commissioner for Human Rights, Center for International Environmental Law, Earth Justice, and Natural Justice, are hosting a high-level virtual meeting to discuss the role for human rights institutions to support rights-based implementation of the Paris Agreement. 

Discussants will exchange ideas for concrete actions and commitments that could be achieved in 2021 to promote human rights-based climate responses and to promote cooperation between relevant actors and institutions. This event will take place in the form of two consecutive discussions bringing together a diverse group of high-level climate decision makers as well as representatives from key human rights bodies and relevant international fora.

For more information and to register to attend this virtual meeting, please click here. 

New Article: Of American Fragility: Public Rituals, Human Rights, and the End of Invisible Man

Etienne C. Toussaint, Of American Fragility: Public Rituals, Human Rights and the End of Invisible Man, 52 Colum. Hum. Rts. L. Rev. 826 (2021). Abstract below.

The COVID-19 pandemic has exposed the fragility of American democracy in at least two important ways. First, the coronavirus has ravaged Black communities across the United States, unmasking decades of inequitable laws and public policies that have rendered Black lives socially and economically isolated from adequate health care services, educational resources, housing stability, environmental security, stable and living wage jobs, generational wealth, and other institutional structures necessary for resilience. Second, government-mandated social distancing in response to the coronavirus has failed to dampen America’s racially biased, violent, and supervisory policing culture, reigniting demands from the Movement for Black Lives for police abolition and, more generally, the dismantling of white supremacy in seociopolitical life. In response, scholars have called for a radical (re)imagination of American democracy.

This Article argues that resolving the fragility of American democracy amidst the terrors of COVID-19 warrants a renewed commitment to the emancipatory language of human rights. This assertion rests on three claims, using the challenges of housing insecurity as a guiding explanatory thread. First, the geography of health inequity in Black communities across the United States embodies not merely governmental neglect, but more poignantly, the rituals of white supremacy that create and reconstitute the racial social order. As a result, beyond coordinated public health measures and short-term economic stimulus plans to address human vulnerability, the future of American democracy demands new tools to confront racial ritualization in everyday life. Second, human rights discourse challenges the normative underpinnings of contemporary public policy, which are shaped by liberal assumptions about the human condition that enshrine structural inequality and propagate economic power. Third, human rights discourse expands the social imagination, fostering innovation in lawmaking by deconstructing antiquated valuations of equality and reconstructing contextualized notions of liberty. Taken together, these insights reveal human rights discourse as a project of reimagining legal subjectivity and state
responsibility. 

To further elucidate the benefits of human rights discourse in view of compelling arguments to move beyond rights-based framings of equality and discrimination, this Article places Martha Fineman’s theory of vulnerability in conversation with Ralph Ellison’s articulation of the Black American experience during Jim Crow segregation in his novel, Invisible Man. This dialogue reveals the erasure of “sacrifice” from ongoing discussions of social and economic inequality. As this Article argues, sacrifice is a critical dimension of democratic citizenship that has been rendered invisible in contemporary rights-based discourse and emergent strategies for poverty alleviation. Drawing insights from the Movement for Black Lives and contemporary theorists of political philosophy, this dialogue clarifies the central role of “dignity” in establishing the preconditions for an engaged citizenry in the context of American racial capitalism.

23 UN Human Rights Experts Issue Statement on Policing and Systemic Racism in the US

On Friday February 26, 2021, 23 UN human rights experts issued a very strong statement on policing and systemic racism in the United States. The statement calls out police use of excessive force against protesters, highlighting the Philadelphia Police Department’s violent crackdown on Black Lives Matter protesters last June. The statement is also the first time international human rights experts have echoed the Black Lives Matter Movement and allied groups in calling to shift resources from police departments to social and economic resources to support communities of color.

This is also very significant because the last time the UN addressed the issue there was outrage after the UN Human Rights Council watered down a resolution on police brutality and racism after George Floyd's murder, removing the language condemning the US and calling for an investigation. 

This statement would not have been possible but for the incredible advocacy of Professors Rachel Lopez and Lauren Katz Smith and their students at Drexel's Kline School of Law, as well as the ACLU of Pennsylvania. 

US Rejoins the UN Human Rights Council

By Co-Editor, Prof. Margaret Drew

The US has returned to the  UN Human Rights Council.   US participation was withdrawn during the Trump administration and the Biden administration quickly reversed.  The US should expect matters to be different.  Until elections for the Council come around, the US will have observer status.  Since the US last participated in the council, US human rights violations are even more exposed.  #MeToo, Black Lives Matter, and Times Up contributed to worldwide criticism of the US from a human rights perspective.  

The US will best approach their participation with a sense of humility, acknowledging US abuses while working to prevent future abuses in the US and the broader international community.  No doubt the other nations will expect a less judgmental approach to Council business and some will relish in the US being called out on its human rights abuses.  Indeed China will soon release a report on US Human Rights Abuses. 

Another change in the council is the predominance of China and other nations known for human rights abuses.  China's influence accounts for the lack of a UN resolution condemning arrests and other mistreatment of Hong Kong protesters.   When those countries that are the most willing to use brutality and the least willing to acknowledge mistreatment of its people control Human Rights decision-making, one has to examine whether the Council has lost its authority and leadership in the world of global human rights advocacy. One writer proposes how the US might break China's deadlock on the council and possibly bring back credibility to the UN Human Rights Council.