Human Rights at Home Blog

New Article: Non-State Actors “Under Color of Law”: Closing a Gap in Protection Under the Convention Against Torture

Anna Welch & SangYeob Kim, Non-State Actors “Under Color of Law”: Closing a Gap in Protection Under the Convention Against Torture, 35 Harvard H.R.J. (2022). Abstract below.

The world is experiencing a global restructuring that poses a serious threat to international efforts to prevent and protect against torture. The rise of powerful transnational non-state actors such as gangs, drug cartels, militias, and terrorist organizations is challenging states’ authority to control and govern torture committed within their territory. In the United States, those seeking protection against deportation under the Convention Against Torture (“CAT”) must establish a likelihood of torture at the instigation of or by consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity. However, what is meant by “other person acting in an official capacity” such that torturous acts by non-state actors fall under U.N. Torture Convention protection remains unclear under U.S. CAT jurisprudence. While many aspects of the CAT have been litigated, clarified, and developed through case law since the United States ratified the CAT, the question of whether and when a non-state actor can be deemed an “other person acting in an official capacity” under the CAT within U.S. jurisprudence lacks scholarship or case law. We make the novel argument that courts and agencies should apply factors employed in civil rights claims (also known as § 1983 claims) to assess whether a non-state actor can act in an official capacity or under color of law. Doing so will help fill a critical gap in U.S. CAT protections.

New Article: Access to a Doctor, Access to Justice? An Empirical Study on the Impact of Forensic Medical Examinations in Preventing Deportations

Nermeen S. Arastu, Access to a Doctor, Access to Justice? An Empirical Study on the Impact of Forensic Medical Examinations in Preventing Deportations, 35 Harvard H.R.J. (2022). Abstract below.

Year after year, the United States has remained the world’s largest recipient of humanitarian-based immigration applications. Those seeking protection here must navigate a backlogged and increasingly restrictive system, oftentimes without access to counsel. Most individuals applying for humanitarian relief must prove that they survived egregious past harms or fear future harms if the United States were to deport them. In turn, immigration judges and Department of Homeland Security adjudicators act as gatekeepers, making daily decisions about whose pain and suffering is devastating enough to justify granting them status in the United States. For immigrants privileged enough to gain access to them, forensic medical evaluators can play a crucial role in immigration outcomes by documenting narratives of harm, bolstering credibility, and persuading adjudicators to grant relief. However, despite the exponential growth in medical-legal collaborations and requests for forensic medical evaluations in support of immigrants, there is little data about if and how forensic medical evidence impacts adjudicator decision making. The empirical study discussed in this Article—the largest-of-its-kind quantitative study of over 2,500 cases in which Physicians for Human Rights (“PHR”) facilitated medical evaluations on behalf of immigrants—found that 81.6% of individuals who received a forensic medical evaluation between 2008 and 2018 experienced some form of a positive immigration outcome. In comparison, immigration adjudictors only granted relief to asylum seekers an estimated 42.4% of the time overall during this same period. The significant impact of forensic medical evaluations in contributing to a favorable immigration outcome raises questions about whether adjudicators are holding immigrants to overly-stringent evidentiary standards by constructively creating norms that require immigrants to gain access to health professionals with the requisite training to evaluate them. To the extent such evaluations become essential to the successful outcome of the legal case, access to a medical evaluator may indeed translate into access to justice.

 

Know Better, Do Better: 2022 U.S. CERD Review

By Jennifer Wakefield, Program on Human Rights and the Global Economy at Northeastern University School of Law

Last week, I had the privilege of traveling to Geneva, Switzerland for the Committee on the Elimination of Racial Discrimination (CERD)’s review of the United States for its (non)compliance with the International Convention on the Elimination of Racial Discrimination (ICERD). Together with Martha Davis, Co-Director of the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University School of Law, I attended briefings with CERD members, coordinated with representatives from civil society organizations, and urged members of the US delegation to listen to our suggestions before the official review at the end of the week. The six days that we spent at the United Nations were transformative, illuminating, and empowering, revealing the harrowing realities that people of color experience daily and the inescapable urgency to repair a system designed to create and perpetuate racial injustices.

On Tuesday, members of civil society organizations from across the country filled a conference room in the Palais Wilson to deliver statements to members of the CERD to create a more accurate picture of what is going on in the United States. Due to time constraints, not everyone was able use the microphone, but the sheer number of people in that room spoke volumes. The first hour of the briefing was dedicated to advocating for indigenous rights, with powerful presentations from members of various tribes on environmental racism, reproductive justice, and education equity for indigenous communities. For the remaining two hours, the CERD heard statements on the criminal legal system, voting rights, the child welfare system, gun violence, migrants’ rights, healthcare and reproductive justice, housing and homelessness, reparations, the access-to-justice crisis, and the need for a national human rights institution – and how current policies and practices institutionalized by the federal government in these areas disproportionately impact people of color. Although each person only had two minutes, the short speeches touched on centuries of pain and oppression that the United States created and continues to cause for underserved communities.

Wednesday’s meeting at the U.S. Mission began as a formal session for the U.S. delegation to answer previously submitted questions from civil society organizations. After going through metal detectors and leaving all electronics with security guards, we sat in rows facing a panel of delegates from the Executive branch. At the beginning of the meeting, the moderator, Ambassador Michèle Taylor, U.S. Permanent Representative to the UN Human Rights Council, said they could not field any live questions given the number of written inquiries they received. After the questions were read, the delegates gave their pre-typed, rehearsed answers approved by the agencies in which they worked. But directly impacted people heard the emptiness in these stoic and robotic responses. Disregarding the Ambassador, one by one, about a dozen people took turns standing up to share their personal stories of how the US government has failed them and their communities. The emotion and energy in the room was palpable as the people offering first-hand accounts pleaded and demanded for the delegates to make change. The tears were contagious. Almost every member of the delegation was crying as the undeniable truths filled the air. In that moment, the delegation was confronted with two driving forces – power they yield as federal officials and humanity underlying this experience. There was no script they could read from to hide, no new government initiative they could offer as consolation. Defense and deflection were not an option. Their backs were against the wall, confronted with the consequences of their (in)actions. The bravery and strength of these individuals to be so candid and transparent about their lived experiences as people of color in a country where the odds stacked against them was awe-inspiring. Witnessing these barriers break down was a moment in time that I will never be able to capture in words.

The official review started on Thursday afternoon in the Palais de Nations. After opening statements made by the CERD and the delegation, Faith Dikeledi Pansy Tlakula, Committee Expert and Country Rapporteur, began pressing the delegation on their lack of progress eliminating racial discrimination with questions informed by civil society submissions and conversations. In these two days, other Committee members followed suit, asking for answers and explanations for inexcusable racism that persists in the United States. The delegation gave performative responses, lacking any commitment to concrete actionable measures the CERD suggested. Ironically, the delegation also ran out of time to answer.

The CERD will release their Concluding Observations on August 30^th, expressing their concerns and providing recommendations. Through speaking with civil society members and the CERD’s review, the U.S. delegation heard about all the work that needs to be done at last week’s review. The question now is whether they were listening. The federal government knows better. It has been, and continues to be, its responsibility to do better.

Reflections on the U.S. CERD Review, 2022

By Martha F. Davis

Traveling to Geneva, Switzerland, is beyond imagination for many American citizens.  Yet for those who were able to be last week during the UN’s periodic review of U.S. compliance with its obligations under the Convention on the Elimination of All Forms of Racism (CERD), Geneva was a place for imagining an America where human rights and racial justice are firmly enshrined and respected.

Almost seventy civil society representatives – not just advocates, but many who are directly affected by human rights violations – came from all corners of the U.S.:  from Alaska to Wyoming, from Arizona to Louisiana, from Albany to Chicago.  The U.S. government sent a sizeable delegation numbering over twenty, that included appointees at the Ambassador and Assistant Secretary levels as well as many Deputy Assistant Secretaries from an alphabet soup of agencies (DOI, HHS, DHS, DOE, DOL, State, to name a few).  As in recent years, the U.S. delegation also included local government representatives, this time the Mayor of Atlanta and representatives of the California Attorney General’s office.

A lot has happened in the eight years since the last U.S. CERD review in 2014, and it was a diminished United States that appeared before the CERD Committee.  News reports of the FBI raid on Mar-a-Lago hung in the air, a reminder of the lasting damage done by the prior Administration.  That damage is not only domestic but also international.  Several members of U.S. civil society were in the room when representatives of the Benin government, also being reviewed under CERD last week, responded to Committee queries about their government by noting that at least they had not had an attempted coup! 

Yet Geneva served its purpose of bringing U.S. civil society and government to neutral ground to air serious concerns, under the moderating guidance of CERD Committee experts from such far-flung places as South Africa, Mauritania, Qatar, and Germany.  The American expert on the Committee, Gay McDougall, was present for the exchanges, but recused from the Committee’s deliberations.

The most remarkable exchange occurred outside of the UN hearing rooms, at an event at the U.S. Mission.  What the government delegation had planned as an orderly, Question-and-Answer session with pre-submitted questions, instead turned into a frank and emotional exchange between those most affected by human rights violations – indigenous peoples denied their autonomy and dignity, those experiencing the legacy of slavery and the reality of ongoing racism – and the government representatives, many of whom identified with these same communities.   For those in the room, it seemed like a watershed moment of speaking truth to power.

At the CERD Committee’s review the next day, some of that spirit carried forward, but for the most part, the review returned to business as usual.  The Committee asked pointed questions about issues such as reparations, indigenous rights, abortion, and human rights abuses at the border, and the U.S. delegation slow-talked through their pre-prepared answers.  

Of course, the U.S.’s complicated federal system sometimes ties the hands of the Executive.  On abortion, for example, the Biden administration defended the fundamental right in court, and has made efforts to use what federal power is available to maintain abortion access in some form.  The current Supreme Court majority has shown little interest in human rights law, and the states that have banned abortion since the Supreme Court’s Dobbs decision feel no compunction about defying human rights norms.  And in retrospect, members of civil society could have done more to protect the federal right while it was standing.  Yet in the CERD forum, it is the Biden Administration – not the Courts, Congress, the states, or civil society -- that must respond to Committee criticism about the U.S. backsliding.

While the Administration’s hands are tied in some areas, there was hope that the CERD review could be the occasion for a special announcement or a new initiative, such as a National Plan of Action on racial justice.  Instead, the Administration often responded to CERD Committee questions with anecdotes of cases that showed positive outcomes for individuals, but did not address system-wide issues that plague areas such as education, labor, health, immigration, indigenous rights, and so on.

In the end, then, Geneva is a place for imagining, a place where civil society and government representatives are all far from home and off-balance, and are perhaps therefore able to hear more completely and speak more openly. Those moments of clarity are valuable.  But what ultimately matters is what happens when everyone involved returns to face the realities at home.  Will the CERD review serve as an organizing tool, or a basis for following up with government representatives, including the mayor of Atlanta and the California Attorney General?  Will the U.S. Government’s listening lead to action?  If the impact of the CERD review remains in Geneva, it will have been a wasted effort on all sides.              

August - October 2022 Deadlines: Calls for Inputs by UN Human Rights Mechanisms

The following calls for inputs have been issued by UN Human Rights Mechanisms with deadlines in August-October 2022 and law professors whose practice, research, and/or scholarship touches on these topics may be interested in submission:

Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights – Call for inputs on study on a proposed non binding set of practical guidelines for efficient asset recovery. Deadline August 15, 2022. Read more.

Committee on Enforced Disappearances – Call for inputs on draft statement on non-state actors and enforced disappearances in the context of the Convention of the Protection of all Persons against Enforced Disappearances. Deadline August 30, 2022. Read more.

Office of the High Commissioner for Human Rights – Call for inputs on draft guidance on Mental Health, Human Rights, and Legislation (published jointly by WHO and OHCHR). Deadline August 31, 2022. Read more.

Office of the High Commissioner for Human Rights – Call for inputs on Human Rights Council resolution 49/12 on the rights of persons with disabilities. Deadline September 1, 2022. Read more.

Committee on the Protection of the Rights of All Migrant Workers and Members of their Families – Call for submissions on concept paper and draft outline for its draft General Comment No. 6 on the Convergence of the Convention and the Global Compact for Safe, Orderly and Regular Migration. Deadline September 12, 2022. Read more.

Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights – Call for contributions toward a universal system of monitoring to assess the human rights impact of unilateral sanctions. Deadline September 30, 2022. Read more.

Office of the High Commissioner for Human Rights – Call for submissions of written contribution to the expert workshop on possible ways to enhance the participation of Indigenous Peoples in the work of the Human Rights Council. Deadline October 15, 2022. Read more.

This information was compiled from https://www.ohchr.org/en/calls-for-input-listing.

United States Signed Los Angeles Declaration on Migration and Protection, Joined Twenty Other Countries in Vowing Safer Migration

By Anezka Krobot, rising 2L at St. Louis University

Earlier this summer, the United States joined Argentina, Barbados, Belize, Brazil, Canada, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Panama, Paraguay, Peru, and Uruguay in Los Angeles to present and sign the new Declaration on Migration and Protection. The Declaration outlines four pillars that each government has committed to upholding: (1) stability and assistance for communities; (2) expansion of legal pathways; (3) humane migration management; and (4) coordinated emergency response.

Along with signing the Declaration, the U.S. has promised a set of concrete deliverables for each pillar. For the first pillar, stability and assistance for communities, the U.S. will announce $314 million in new PRM and USAID funding for stabilization efforts in the Americas, including support for socio-economic integration and humanitarian aid for Venezuelans in 17 countries of the region.

To support the second pillar, expansion of legal pathways, the U.S. will launch the development of a $65 million U.S. Department of Agriculture (USDA) pilot program to support U.S. farmers hiring agricultural workers under the H-2A program, provide 11,500 H-2B nonagricultural seasonal worker visas for nationals of Northern Central America and Haiti, roll out new Fair Recruitment Practices Guidance for Temporary Migrant Workers with the cooperation of major employers, including Walmart, and commit to resettle 20,000 refugees from the Americas during Fiscal Years 2023 to 2024. The U.S. will also resume and increase participation in the Haitian Family Reunification Parole Program and resume the Cuban Family Reunification Parole Program.

For the third pillar, humane migration management, the U.S. will announce a multilateral “Sting Operation” to disrupt human smuggling networks across the Americas and improve the efficiency and fairness of asylum at the border. As for the fourth pillar, coordinated emergency response, the U.S. will be involved in the early-warning system that will be implemented to alert the involved countries of large cross-border movements.

“The Americas region is facing a human mobility crisis that is unprecedented both in its complexity and scale. No country can address this situation on its own,” said UN High Commissioner for Refugees Filippo Grandi. “The Los Angeles Declaration builds upon existing frameworks and brings us closer to a continent-wide coordinated response based on the principles of international cooperation, solidarity and respect for human rights, as set out in the Global Compacts on refugees and on safe and orderly migration.”

Some organizations have been more wary of the Los Angeles Declaration. For example, the Los Angeles Declaration has been compared to the Valletta Action Plan signed in 2015 between European and African states, which the EU defines as “a set of political and operational measures to enhance cooperation between African and European countries with the aim to provide a framework for humane and sustainable management of migration on both sides of the Mediterranean”.  In reality, the EU’s implementation of the Valletta Action Plan has focused on containment and securitization, instead.  It’s unclear whether the Los Angeles Declaration will follow the same fate.

Hooray for Kansas!

By Prof. Margaret Drew, UMass Law School

 

In a vote for pro-choice advocates to celebrate, Kansans affirmed the right to abortion in their state.  Surrounded by states that are largely expanding anti-abortion statutes, Kansas will remain a haven for those seeking abortion services.  This result is a blow to those looking to ban abortion in every state.  Historically a deeply religious and conservative state, the outcome of the vote is a surprise to many.   One of the lessons hopefully recognized by anti-choice promoters is that the 70% of the population that identifies as pro-choice, even those that support reasonable restrictions, are unhappy with the recent Supreme Court decision.  Women and other voters support women's right to control their healthcare.  

One of the most frightening impacts of the Dobbs decision was the court's prioritization of religion over women's autonomy.  Religious freedom must be redefined freedom to prioritize freedom from religion.  The separation of church and state was the norm for many decades and was a founding principle.  The current Supreme Court term upended the separation principle that was under attack at least since the Hobby Lobby decision.   Consistently, those celebrating Dobbs cited a religious basis.  The Catholic Church purportedly spent $3 million in Kansas promoting an anti-abortion vote.  

Thank you, Kansas, for giving hope to women nationwide.

UN General Assembly Recognizes Human Right to Healthy Environment

By Anezka Krobot, rising 2L at St. Louis University School of Law

Last week, on Tuesday, July 26, 2022, the UN General Assembly adopted resolution 76/300 with 161 votes in favor and 8 abstentions, recognizing the human right to a clean, healthy, and sustainable environment. The UN High Commissioner for Human Rights, Michelle Bachelet, gave the following statement in support of the resolution:

“This decision reflects that all rights are connected to the health of our environment. Every person, everywhere, has a right to eat, breathe and drink without poisoning their bodies in doing so, and to be able to live harmoniously with the natural world, without constantly growing threats of ecosystem collapse and climate catastrophe. Today is a historic moment, but simply affirming our right to a healthy environment is not enough. The General Assembly resolution is very clear: States must implement their international commitments and scale up their efforts to realize it. We will all suffer much worse effects from environmental crises if we do not work together to collectively avert them now. To survive and thrive, we must invest in environmental and social protection centered in human rights; hold governments and businesses duly to account for environmental harms; empower all people to act as agents of change for a healthy environment; and recognize and uphold the rights of those most affected by environmental degradation.”

This resolution is a huge step forward for both environmental and human rights policy, but it remains to be seen whether countries will step up to make real change. As Bachelet herself said, “Today’s decision by the General Assembly marks the culmination of many years of advocacy by activists from all corners of the environmental justice movement. We know the scale of the dangers we face. If we are to protect our planet for present and future generations, it is now time for truly bold action by governments and the private sector as well.  And for all of us to stand together to make the right to a healthy environment our lived and shared reality.”