Human Rights at Home Blog

November Deadlines - Calls for Inputs by UN Human Rights Mechanisms

The following calls for inputs have been issued by the UN Human Rights Mechanisms with deadlines in November 2021 and law professors whose practice, research, and/or scholarship touches on these topics may be interested in submission:

Special Rapporteur on the rights of persons with disabilities – Call for inputs on Report of the Special Rapporteur on the rights of persons with disabilities on Artificial Intelligence and the rights of persons with disabilities. Deadline November 3, 2021. Read more.

Special Rapporteur on Minority Issues – Call for inputs on upcoming country visit to the United States of America. Deadline November 7, 2021. Read more.

High Commissioner of the United Nations for Human Rights – Call for inputs on social development challenges faced by persons with albinism. Deadline November 30, 2021. Read more.

Special Rapporteur on the right to adequate housing, Balakrishnan Rajagopal and Special Rapporteur on extreme poverty and human rights, Olivier de Schutter– Call for inputs on report on Decriminalization of homelessness and extreme poverty. Deadline November 30, 2021. Read More.

Special Rapporteur on the right to adequate housing, Balakrishnan Rajagopal and Special Rapporteur on extreme poverty and human rights, Olivier de Schutter – Call for inputs on Decriminalization of homelessness and extreme poverty. Deadline November 30, 2021. Read more.

This information was compiled by Khala Turner, a 3L at St. Louis University School of Law, from https://ohchr.org/EN/Pages/calls-for-input.aspx.

New Article: National Security Policymaking in the Shadow of International Law

Laura T. Dickinson, National Security Policymaking in the Shadow of International Law, Utah Law Review, Vol. 2021, No. 3 (2021). Abstract below.

Scholars have long debated whether and how international law impacts governmental behavior, even in the absence of coercive sanction. But this literature does not sufficiently address the possible impact of international law in the area of national security policymaking. Yet, policies that the executive branch purports to adopt as a wholly discretionary matter may still be heavily influenced by international legal norms, regardless of whether or not those norms are formally recognized as legally binding. And those policies can be surprisingly resilient, even in subsequent administrations. Moreover, because they are only seen as discretionary policies, they may be more easily adopted than formal legal interpretations. For all of these reasons, the impact of international law on national security policymaking is a crucial unexplored area in the debate about the efficacy of international law.

This Article describes how the norms and values embedded in international human rights law can sometimes be adopted, if not as a matter of formal law at the international level, then as a matter of official policy and practice. In addition, it surveys the advantages and disadvantages of such an approach, using two different Obama administration counterterrorism policies and Trump administration successor policies as case studies. Ultimately, I argue that the emergence and persistence of such policies is evidence of international law’s constraining impact. International law, it turns out, casts a long shadow as its paradigms get translated into policy. I also analyze the attributes of these policies, including their “legalistic” character and the consequences of creating policies of this type. This analysis suggests that importing international law paradigms into national security policymaking can be a pragmatic and effective alternative to formal international lawmaking, though it also may side-step the process of creating robust new international law rules. Therefore, it is a practice that executive branch officials from the United States and other countries, human rights organizations, and administrative, constitutional, and international law scholars should at least consider, while weighing both the pros and cons. In addition, the stickiness of such policymaking, even across administrations, illustrates the importance of institutional path dependence, the role of lawyers, the constraint of interoperability with key U.S. allies in multilateral military actions, and the way norms get embedded in government organizations.

IACHR 181st Period of Sessions

The Inter-American Commission on Human Rights is current holding its 181st Period of Sessions virtually from October 18^th until October 29^th of 2021. 

 To view the hearings, pre-registration is required: https://oas.org/en/iachr/sessions/calendario.asp?S=181. All times are listed in United States Eastern Standard Time.

Tip: look for the registration link next to each hearing listed on the website.

 

Some of the upcoming hearings that might be of interest to our readers include: 

Tuesday, October 26, 2021:

16:00 – 17:30: Protection of people in Human Mobility in the United States, Mexico, and the Northern Central America

Wednesday, October 27, 2021:

9:00 – 10:30: Use of surveillance technologies and their impact on freedom of expression in the context of the pandemic in the region.

Thursday, October 28, 2021:

14:00 – 15:30: Human rights situation of persons deprived of liberty in the Americas.

For basic information and guidelines about the proceedings and hearings, please visit https://oas.org/en/iachr/jsForm/?File=/en/iachr/sessions/coverage.asp.

U.S. Elected to the U.N. Human Rights Council That Trump Quit

By Kaeleigh Williams, 2L at St. Louis University School of Law

On Thursday October 14, 2021, the U.N. General Assembly elected the United States to the Geneva-based Human Rights Council. The Trump administration quit the 47-member body more than three years ago, after it called the 47-nation council hypocritical and for anti-Israel prejudice. The withdrawal from the council was disappointing for many, who hoped to persuade the U.S. that a multilateral approach to the world’s biggest problem was worth sticking with.  

The U.S. received 168 votes in the secret ballot by the General Assembly. It begins a three-year term on January 1, 2022.  

When President Joe Biden took office in January, he pledged that human rights would be the center of his foreign policy and his administration has not shied away from criticizing China over Hong Kong, Xinjiang and Taiwan and calling out Russia.  

"The U.S. will have an opportunity to demonstrate just how serious the Biden administration is about making human rights central to its domestic and foreign policies," said Human Rights Watch U.N. Director Louis Charbonneau. "With a lot of missteps so far, they should use their time on the council to promote human rights among friends and foes alike."  

Antony J. Blinken, U.S. Secretary of State, stated, “We will work hard to ensure the Council upholds its highest aspirations and better supports those fighting against injustice and tyranny around the world. The path towards the protection of human rights and fundamental freedoms will be filled with challenges. The United States commits to continue this steadfast pursuit, at every opportunity, with any and all countries that will join us.”  

See President Biden’s statement about the U.S. election to the HRC here.  

New Book: The Struggle for Human Rights

Edited by Nehal Bhuta, Florian Hoffmann, Sarah Knuckey, Frédéric Mégret, and Margaret Satterthwaite, The Struggle for Human Rights: Essays in honour of Philip Alston (2021), Description below.

The Struggle for Human Rights evaluates the themes of law, politics, and practice which together define international human rights practice and scholarship. The included essays provide an in depth analysis of both the promise and limits of the human rights project, helping readers to understand where the human rights project stands and where it might be headed.

Taking as it's inspiration the 40 year career of international human rights advocate Philip Alston, this book of essays examines foundational debates central to the evolution of the human rights project. It critiques the reform of human rights institutions and reflects on the place of human rights practice in contemporary society.                                                                         

Bringing together leading scholars, practitioners, and critics of human rights from a variety of disciplines, The Struggle for Human Rights addresses the most urgent questions posed within the field of human rights today - its practice and its theory. Rethinking assumptions and re-evaluating strategies in the law, politics, and practice of international human rights, this book is essential reading for academics and human rights professionals around the world.

Additional information on the editors and contributors can be found here.

New Article: Do Reason-Based Abortion Bans Prevent Eugenics?

Sital Kalantry, Do Reason-Based Bans Prevent Eugenics?, Cornell Law Review Online (Oct. 13, 2021). Abstract below.

Two judges of the U.S. Supreme Court, Amy Coney Barrett and Clarence Thomas, as well as several other U.S. Federal Court of Appeals judges have argued that reason‑based abortion bans are designed to prevent eugenics. Eleven states currently prohibit doctors from performing an abortion if they know that the reason the patient is seeking one is because of the predicted gender, race, and/or disability of the fetus. These prohibitions apply from the moment the biological sex and genetic defects of the fetus can be identified, which is well before viability.

Many are closely watching to see whether the new composition of the Court will impact its abortion jurisprudence. The Court’s refusal to prevent the Texas law that allows private actors to enforce a pre‑viability prohibition on abortion has recently gained national attention.3 Another case that is being closely watched is Dobbs v. Jackson Women’s Health Organization, which could permit states to enact prohibitions on pre‑viability abortions. This Essay discusses a lesser‑known case through which Roe v. Wade could be gutted—by declaring reason‑based bans constitutional. If the Court finds that one reason‑based abortion ban is constitutionally permissible, it will open the door for states to destroy the fundamental right to abortion by enacting many more reasons for why abortion is impermissible.

U.S. Reengages with UN Human Rights Mechanisms

The United States was elected to the UN Human Rights Council on October 14, 2021, more than three years after the Trump administration withdrew from the Council.  On the campaign trail President Biden had promised that the United States would week election on the Council and the administration began to reengage with the Council earlier this year as an observer. 

Also noteworthy is that on September 24, 2021, the United States submitted its Sixth Periodic Report to the UN Committee Against Torture concerning the implementation of the United States’ obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in accordance with Article 19 of the Convention. The report covers both domestic and extra-territorial violations of the prohibition against torture, cruel, inhuman, degrading treatment or punishment. As reported by Jamil Dakwar, Director of the American Civil Liberties Union's Human Rights Program, the report was due in 2018 but the Trump administration failed to submit a reply to the Committee’s detailed questions. The organization of this report follows the general guidelines for the preparation of reports by Member States. The U.S. report will likely be reviewed by the U.N. Committee Against Torture in late 2022 or early 2023 depending on the backlog caused by COVID-19.  U.S. civil society organizations (including human rights clinics) may wish to submit shadow reports to the Committee in the coming year.

Progress on the Human Right to Access to a Healthy Environment

The U.N. Human Rights Council recognized for the first time on Friday, October 8, 2021, that having a clean, healthy, sustainable environment is a human right. Four countries abstained: Russia, India, China, and Japan.   

The United States is not currently a member of the Council, so did not participate in the vote.  However, Inside Climate News reported that the Biden Administration opposed the resolution behind the scenes, seeing it as an extension of the U.S.'s historic opposition to recognition of economic, social and cultural rights.

The U.N. Human Rights Council last week also established a new Special Rapporteurship on the promotion and protection of human rights in the context of climate change.  

For a great analysis of the Council's decision and other recent developments on the right to a healthy environment, see Maria Antonia Tigre's blog post released earlier today here.  

Event: 10/14-10/16 International Criminal Law Before Domestic Courts Livestream

The University of Vienna in cooperation with the Ludwig Boltzmann Institute of Fundamental and Human Rights are hosting  an international conference `International Criminal Law before Domestic Courts', which will take place online from Thursday October 14 until Saturday October 16, 2021.  From the organizers:

"The conference will be held in a hybrid form at the Law Faculty of the University of Vienna and will be livestreamed. More than 30 academics and practitioners will participate. The conference is particularly relevant to experts, professionals, and students interested in international criminal law, public international law and human rights as it will tackle corresponding current topics from an academic, as well as from a practitioners’ perspective. We would like to especially invite young scholars, lawyers, and practitioners to join the discussion. The talks delivered at the conference will be published in a book next year."

The schedule and registration form can be accessed through the official website of the conference at https://www.iclconference21.com/. 

New Article: Solidarity as a Constitutional Value

Tamar Hostovsky Brandes, Solidarity as a Constitutional Value, Buffalo Human Rights Law Review, Vol. 27, No. 2 (2021). Abstract Below.

In the face of the threats posed by the COVID-19 pandemic, Solidarity has become the term of the hour. The World Health Organization organized a “solidarity series of events”, under the hashtag “together at home”, and chose the title “Solidarity” for the ambitious global initiative to find a treatment to the virus, establishing a “Solidarity” response fund. Within countries, solidarity was raised as a value requiring the imposition of various social distancing measures and limitations, needed, it was argued, in order to protect both society as a whole, as well as individuals who were especially vulnerable to the virus.

The different approaches taken by countries in responding to the COVID-19 crisis can, in part, be explained by the different social perceptions regarding the importance of social solidarity and the duties that stem from it. The notion of solidarity, explored below, underlies the web of mutual commitments among members of a community, and, in the case of states, among members of the political community.

This article examines the role solidarity can play when recognized as a constitutional value. Narratives of solidarity are prevalent in constitutions world-wide, both implicitly and explicitly. Despite this prevalence, constitutional scholarship has paid relatively little attention to the notion of solidarity. The article aims to take a step in filling this gap. It calls for recognition and discussion of the significance, potential and perils of recognizing solidarity as a constitutional value and of applying it in constitutional adjudication.

The article argues that despite the liberal aversion of the notion of solidarity, which is understandable in light of potential abuses of the concept to justify limitations of individual freedom, solidarity is a precondition for the existence of just societies and for distributive justice, as well as for ensuring that human rights are equally and inclusively realized.

The article argues that the relationship between collective identity and solidarity is complex, that solidarity is a multi-layered phenomenon, and that these complexities can and should be reflected in the constitutional manifestation of solidarity. Constitutions do and should refer to more than one layer of solidarity, and courts can and should play a part in instilling substance in these layers. Where solidarity is recognizing as a value, it can serve to examine the effect of laws and policies on under-privileged members of society, and as a source for deriving duties towards them.

Finally, the article argues that although constitutional solidarity may intuitively be expected to endorse only intra-state solidarity, that is, solidarity among members of the political community, constitutions can and do endorse notions of transnational solidarity. The article argues that constitutionalism can thus be an important source of “bottom-up” transnational and global solidarity.

Part II - Entitled: A Podcast About Why Rights Matter and What’s the Matter with Rights

This blog introduced the Entitled podcast in a post on August 23, 2021. This post below provides more information about the hosts of the podcast and the first couple of episodes.

By Khala Turner, 3L at St. Louis University School of Law

Entitled is a new podcast from two esteemed professors at the University of Chicago. Professor Tom Ginsburg and Professor Claudia Flores. Professor Tom Ginsburg is a Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar, and Professor of Political Science. Professor Tom Ginsburg has dedicated tremendous amounts of effort into the international law practice area.  Professor Claudia Flores is an Associate Clinical Professor of Law and the Director of the Human Rights Clinic at the University of Chicago. Professor Flores has specialized in human rights violations of low-wage immigrant workers and assisted in advising governments on the Convention of All Forms of Discrimination Against Women.

On the new Entitled podcast, the two professors work together to discuss “why rights matter and what’s the matter with rights,” and each biweekly episode is around 40 minutes or shorter. The first episode, “What’s the Matter with Rights,” goes into an in-depth discussion about what rights should be considered after a brief discussion about rights in a conversation about a democratic Libya. The professors shared their thoughts of what human rights meant and creating a list of what is most important for communities. “Highly educated people define what the normalization should be [for rights].” This comment was made to determine who creates rights for communities in countries across the globe. The thought that a group of the most intelligent people across the globe come together to define what is of importance for every person creates the concern for how they determine what to discuss, based on what rights are the most important.

“All laws are really just making stuff up.” As stated in the podcast, laws are either thought to be created by God, who predetermines rights with no human control or input, or humans that have an entitled interest by the virtue of being human. The most important rights should have a connection with morality and should correspond with a duty that is implemented to satisfy a right. Professor Ginsburg and Professor Flores took statements from their students to gauge what they would decide are important rights. In the brief comments, most were basic rights such as food, shelter, and basic opportunities but these rights are not listed in the Constitution and are not considered civil or political rights that we consider legally.

Throughout the podcast, both Professor Ginsburg and Professor Flores discuss global human rights and decipher through the hard-hitting questions on why our rights matter, and how they may be challenged as time progresses.

New Article: The Disparate Treatment of Rights in U.S. Trade

Desirée LeClercq, The Disparate Treatment of Rights in U.S. Trade, Fordham Law Review, Vol. 90, No. 1 (2021). Abstract below.

Rights advocates are increasingly urging U.S. trade negotiators to include new binding and sanctionable provisions that would protect human rights, women’s rights, and gender equality. Their efforts are understandable. Trade agreements have significant advantages as a process for advancing international rights. Even though Congress and the executive incorporate international environmental standards and labor rights into U.S. trade agreements, they have refused to incorporate gender rights and broader human rights. The rationale behind the United States’s disparate treatment of rights in trade has received almost no scholarly attention. That is a mistake.

Using labor rights as a case study, this Article discerns the rationale for incorporating rights into U.S. trade policy. Properly understood, U.S. policymakers incorporate some rights into U.S. trade agreements because they view those rights as critical to protecting national industries and citizens from unfair trade conditions. Efforts to incorporate rights as the ends rather than the means to trade policy accordingly fail to resonate with policymakers. Those efforts also fail to appreciate the significant policy drawbacks of coupling trade law and international rights law, such as conflicts between international law and domestic federal and state laws, and challenges to domestic processes in the United States and abroad. Nevertheless, there are alternative ways that the United States may protect international rights while preserving the sanctity of both

Event: 10/8 UGA School of Law Presents "The 1972 Stockholm Declaration at 50: Reflecting on a Half-Century of International Environmental Law"

On Friday October 8, 2021, the University of Georgia School of Law's Dean Rusk International Law Center will host its annual Georgia Journal of International and Comparative Law conference. The 1972 United Nations Conference on the Human Environment produced the "Stockholm Declaration," an environmental manifesto that forcefully declared a human right to environmental health and birthed the field of modern international environmental law. In celebration of its 50th anniversary volume, the Georgia Journal of International and Comparative Law is convening this event to reflect on the first 50 years of international environmental law and the lessons this history may hold for the future. The conference organized according to the three themes of Principle 1 of the Stockholm Declaration, including panels on the rights-based approach to environmental protection; anti-racism, decolonization, and environmental protection; and international environmental law’s future. It will feature a keynote address by Dinah Shelton, the Manatt/Ahn Professor of International Law Emeritus, George Washington University School of Law.

Details and registration: http://www.law.uga.edu/gjiclfall2021. 

The IACHR Statement on the Expulsion of People from the United States, Mexico, and Guatemala

On September 17, 2021, the Inter-American Commission on Human Rights (IACHR) released a statement expressing concern over the expulsion of people, mainly of Haitian nationality, from the United States, Mexico, and Guatemala. The IACHR called on all States involved "to guarantee the effective protection of the rights of people in human mobility; and in particular, to ensure due process guarantees during all procedures that may result in the imposition of an expulsion measure." In addition, the IACHR warned "that accelerated expulsion procedures are being implemented without assessing the potential need for protection; ensuring access to migration, asylum, or protection procedures; or applying the appropriate health protocols to prevent the spread of COVID-19 infection."

The IACHR recommended that all States involved "allow people in the context of human mobility to enter their respective territories for the purpose of guaranteeing access to procedures for recognizing refugee status, complementary protection, or migratory regularization. These measures should contemplate the particular needs of groups such as women and other particularly vulnerable groups such as children and adolescents, LGBTI people, indigenous peoples, people with disabilities, and older people and should be compatible with health containment measures adopted in the context of the COVID-19 pandemic." In addition, the IACHR urged "States in the region, particularly the United States, Mexico, Guatemala, to create and expand existing regular channels that are safe, accessible, and affordable for international migrants; and reiterates its call to implement mechanisms for regional cooperation and shared responsibility and to strengthen national asylum and protection systems, in a way that they adapt to the complex reality of migration dynamics in the region, to adequately identify protection needs, and provide timely responses. It is understood that as long as measures are not adopted to overcome the structural causes of forced migration, international migratory movements will continue to occur."