Human Rights at Home Blog

UN Human Rights Committee Grills U.S. on Abortion, Maternal Mortality, and Separation of Families

This blog post is crossposted with permission from the Reproductive Rights Law Profs Blog.

By Hannah Filippino and Benita von Lilienfeld-Berry, Law Students in CUNY Law School's Human Rights & Gender Justice Clinic

Earlier this month, the United Nations Human Rights Committee (“HRC”) reviewed the U.S.’ performance under one of the only three international human rights treaties that the U.S. has ratified: the International Covenant on Civil & Political Rights (“ICCPR”). As expected during the two-day review, the HRC members grilled the U.S. on the impact that the Supreme Court case Dobbs v. Jackson has had on access to abortion, but they also asked tough questions about other reproductive justice issues, including the U.S.’s failure to address maternal mortality and the improper separation of families by Child Protective Services.

To ensure that HRC members were fully informed of ICCPR violations in the U.S., civil society members submitted over 70 reports and sent 150 human rights lawyers and activists to attend the review. Through CUNY Law School’s Human Rights & Gender Justice Clinic, we attended the review as part of civil society and submitted a shadow report with If/When/How, Pregnancy Justice, the Center for Reproductive Rights, Birthmark Doula Collective, Changing Woman Initiative, and We Testify. The report highlights the ways in which abortion, miscarriage, and pregnancy outcomes are criminalized in the U.S. in violation of multiple rights protected under the ICCPR, including the rights to life, non-discrimination, equal protection before the law, freedom from cruel, inhuman, and degrading treatment or torture, as well as health care privacy (Art. 6, 7, 17, 2, 3, 26). Several other organizations also submitted separate reports focusing on abortion access and maternal mortality.

During the review, Serbian Committee Member (“CM”) Tijana Šurlan made maternal mortality and reproductive rights one of her primary concerns. She emphasized that the U.S. must adopt positive measures to both reduce maternal mortality and ensure abortion access to protect pregnant people’s rights to health and life. Noting the disproportionately high rates of maternal mortality in Black, Indigenous, and Native Hawaiians and other Pacific Islander communities, she asked what measures the U.S. is undertaking to improve health care for these vulnerable groups. She also framed decriminalizing religious and cultural midwifery as a pivotal piece of reducing the U.S.’ maternal mortality rate, which is the highest among wealthy countries.

CM Šurlan described the Dobbs cases as a serious retrogression after five decades of protection for sexual and reproductive health rights established since Roe v. Wade. French CM Hélène Tigroudja also focused on the criminalization of abortion and asked President Biden’s delegation to describe tangible, precise measures that the U.S. has taken to reduce the criminalization of abortion providers, seekers, and their helpers in light of the World Health Organization’s (“WHO”) 2022 Abortion Care Guidelines. In doing so, she emphasized that the right to choose pregnancy requires safe and legal abortions under the ICCPR rights to life, non-discrimination, and freedom from cruel, inhuman, and degrading treatment or torture. CM Tigroudja also expressed concern about State data surveillance being weaponized to criminalize abortion. She further highlighted that since Dobbs, pregnant people that either receive abortive care or are forced to carry their pregnancies to term have been discriminated against and are suffering physically and psychologically as a result.

CM Šurlan asked the U.S. to clarify what remedies are in place for people who are forced to carry their pregnancies to term, as well as for those who suffer from severe health problems from unsafe abortions. She also asked about the possible creation of a federal statutory right to abortion through legislation like the Women’s Health Protection Act. Chilean CM Hernán Quezada Cabrera expressed concern about how Child Protective Services uses behavior during pregnancy as a basis to separate families and even arrest parents instead of undertaking measures to help families and alleviate poverty. He alluded to the ways that this criminalization of pregnancy relates to racist family separations by Child Protective Services, which were also criticized when the U.S. was reviewed for its compliance with the Convention on the Elimination of All Forms of Racial Discrimination in 2022.

While the government delegates agreed that the Dobbs decision has caused serious human rights violations, they failed to directly address state laws banning or severely restricting abortion access in response to the HRC’s questions. Instead, the government representatives discussed enforcing federal laws that safeguard private health care information, require health care treatment in emergencies, and prohibit threats and violence at clinics. The Special Assistant to the President for Democracy and Civic Participation at the White House, Justin Vail, emphasized that the right to choose is fundamental, but, other than noting the executive orders enforcing federal laws, he only stated that the federal government is trying to pass laws to restore Roe protections.

The sole state-level delegation member, Attorney General Aaron Ford of Nevada, described efforts to protect abortion rights in his state. However, Nevada is only one of fifty states, and it is also the only state that explicitly criminalizes self-managed abortion.

Ultimately, the Biden delegation relied on federalism to avoid accountability for our nation’s violations of the ICCPR. In doing so, the Biden delegation continued the U.S.’ longstanding history of ignoring its obligations to adhere to international treaties like the ICCPR as “The Supreme Law of the Land” under the Constitution.

The HRC is expected to release its formal concluding observations on November 3.

Event 11/1: Environmental Human Rights and Intergenerational Equity and Solidarity

 

Register here: https://lnkd.in/gtWXEAVu

Event 11/2: Reassessing the Efficacy of the Rules-Based International Order in Promoting Human Rights, Peace, and Security in the Modern Age

On Thursday, November 2, at 6:00P.M. ET, join the University of Miami School of Law for their 11th annual Henkin Lecture on Human Rights on Reassessing the Efficacy of the Rules-Based International Order in Promoting Human Rights, Peace, and Security in the Modern Age. The speaker will be Keith Harper, the former U.S. Ambassador and Permanent Representative to the United Nations Human Rights Council, a Partner at Jenner & Block, and an Independent Expert on the United Nations Permanent Forum on Indigenous Issues (PFII).

The system of international laws, agreements, and institutions established after the Second World War—often referred to as the rules-based international order (RBIO)—has been remarkably enduring. This order entails international cooperation and norm establishment through multilateral institutions (like the United Nations and World Trade Organization) and is based on principles of human equality, open markets, security, cooperation, liberal democracy, and monetary cooperation. The United States has invested over many decades to form, buttress, support and protect this order, spending treasure, time, and resources to promote human rights and a world of greater security. Has the system done its job? And does it have the capacity to address the increasingly complex challenges of today’s world? This lecture will explore the efficacy of the current international order. Has it effectively adapted to address urgent issues facing today’s world—from the rights of Indigenous Peoples, to the responsibilities of businesses to prevent and address human rights impacts, to the challenges of ensuring international peace and security, including, notably, the examples of Russian aggression in Ukraine and the Israel-Hamas war?

The lecture will take place in person at the University of Miami School of Law, Room F209, and will also be live broadcast over Zoom. Register for the webinar here.

U.S. failure to meaningfully consult with civil society during the 2023 ICCPR review

By Sarah Dávila A. and Lauren E. Bartlett 

“What do we want - DIGNITY; When do we want it - NOW; And if we don’t get it - SHUT IT DOWN”

    On Monday Oct. 16, 2023, over thirty people from U.S. civil society organizations held a protest in the streets of Geneva, Switzerland. This unusual event came out of years of frustration with the U.S. government’s refusal to meaningfully consult with U.S. civil society ahead of and during U.S. human rights reviews in Geneva. Some protesters silently walked out of a meeting at the U.S. Mission. Those protesters then joined a larger group waiting outside with posters, lots of energy, and most importantly demanding to be heard while marching in front of the headquarters of the United Nations Office of the High Commissioner of Human Rights, chanting together (see protest calls above and at the end of this post below). Then again, today on Oct. 18, 2023, U.S. civil society protested the lack of meaningful participation by the U.S. government relating to its review of the ICCPR, by turning their backs after the review had concluded.

    This week marks the Fifth Periodic Review of the United States’ compliance with its duties and obligations under the International Covenant on Civil and Political Rights (ICCPR). During its review of the United States, the United Nations Human Rights Committee (Human Rights Committee), a treaty body made up of independent human rights independent experts, will monitor U.S. compliance with the ICCPR.  

    The Human Rights Committee has four monitoring functions, in its supervision and monitoring of the implementation of the ICCPR. The Human Rights Committee: (1) receives and examines reports from State parties on their progress in upholding the treaty; (2) provides general comments, interpreting the ICCPR; (3) receives and considers individual complaints (“communications”); and (4) considers inter-state complaints relating to state failure to upload ICCPR obligations.

    During this 139th Session, the Human Rights Committee had the opportunity to ask questions of the U.S. government and will provide recommendations (“concluding observations”) for measures to be taken at the federal, state, and local levels to advance and protect human rights under the treaty).

    The Human Rights Committee questioned U.S. officials about their laws and practices, but also heard, both formally and informally, from civil society (non-profits, directly impacted individuals, advocates engaging with communities in the U.S., law professors and law students, among others) about the United States’ compliance with the ICCPR. These interventions by civil society are very important to the treaty body’s work; by helping shape the questions that must be asked of the United States given the reality of human rights on the ground. Civil society interventions will also help inform the Human Rights Committee’s recommendations on the United States which will be issued on Nov. 3, 2023. In turn, civil society will use the recommendations issued by the Committee in advocacy work in the United States.

    U.S. civil society participation in U.S. human rights treaty body reviews has been historically very high, especially compared with other countries who participate in reviews. In fact, this week there were more than 140 people from U.S. civil society organizations in Geneva.  Civil society should have an opportunity to participate in this review process through real and meaningful consultation with the U.S. government as well as  submit public reports based on the list of issues provided by the Human Rights Committee. The reports covered a variety of very pressing issues, including human rights violations in relation to race, ethnicity, gender, sexual orientation, legal status, and socioeconomic problems. Those reports provided very concrete recommendations for the U.S. government on how to take action and actually protect human rights under the ICCPR. 

    Meaningful participation is critical in treaty-based reviews of country obligations under treaties, such as the ICCPR. As a human right, all persons have the right to freely participate in public affairs, as guaranteed under Article 25 of the ICCPR. The right to participation is critical to the advancement of all human rights because it promotes democracy, the rule of law, social inclusion, economic development, and overall visibility and the ability to be heard by government official. Human Rights Committee, General Comment No. 25 provides that individuals have the right to take part in the conduct of public affairs, including the formulation and implementation of policy at the international and regional levels.

    Effective participation must be a process that includes a variety of stakeholders, including State and non-State actors, private entities, civil society, and affected populations.  Special attention must be given to the effective participation of women, gender-minorities, indigenous peoples, and other disenfranchised and vulnerable populations whose voices have not been heard and who have been historically excluded from participatory processes.

    While the current administration has held consultations, they have fallen short of providing specific implementation measures to comply with the ICCPR and the consultation process itself, which requires meaningful participation. Moreover, those consultations were held with little to no government interaction or response. Additionally, U.S. government officials invited a limited number of people (approx. 50% of civil society attending the review in Geneva), to the U.S. Mission for a consultation and reception, ignoring calls by civil society for a location that would accommodate all civil society members interested in attending. During that meeting, as with previous consultation processes earlier in the decade, government officials have routinely used pre-written statements not responsive to civil society interventions, thus reflecting the true nature and superficiality of the consultation process to date.

    Just last year when the United States’ compliance with the Convention on the Elimination of Racial Discrimination was reviewed in July 2022, the U.S. similarly engaged very superficially without engaging meaningfully with civil society. The United States is not doing enough to meaningfully consult with civil society during human rights treaty body reviews and the protest on Monday and today are a direct result of the frustration and anger felt by civil society after being ignored once again by the U.S. while being reviewed by the Human Rights Committee this week in Geneva.

“Derechos humanos por eso aqui estamos.”

Event 10/12: Hernán Santa Cruz Dialogue on Human Rights Economy Webinar

On Thursday, October 12, 2023, at 5:30 PM EST, please join UN Human Rights and Columbia University for a dialogue exploring the question: “Are we ready for a transformative revolution to ensure a unique paradigm shift-- one that seeks to redress root causes and structural barriers to equality, justice, and sustainability, by prioritizing investment in all rights: civil, cultural, economic, political, and social rights?” 

The event will feature Rana Farhoor, Columnist & Associated Editor at Financial Times and Economic Analyst at CNN, in conversation with Volker Türk, United Nations High Commissioner for Human Rights;  Minouche Shafik, President of Columbia University; José Antonio Ocampo, Professor of Professional Practice in International and Public Affairs at Columbia University; and Attiya Waris, Independent Expert on foreign debt, other international financial obligations and human rights at the United Nations.

The event will be held in person at the Low Library of Columbia University (535 W 116^th St, New York, NY) and livestreamed on Columbia University’s YouTube channel. Register for the in-person event here.

The UN Human Rights Committee Will Review the U.S. Next Month. Why Not Engage with the Committee on the Abolition of Immigration Detention of Children? – Part II

By Lauren E. Bartlett

Prof. Bartlett writes this second of a two-part post on the U.N. Human Rights Committee’s upcoming review of the United States during the week of October 16^th.

For over a decade, international human rights mechanisms have been calling for a complete prohibition on the detention of migrant children, with or without their families, based solely on migration status. There is a consensus in international human rights law that any deprivation of liberty of children based solely on migration status, no matter how brief, is a violation of human rights law and may amount to ill-treatment. In 2012, the U.N. Committee on the Rights of the Child stated that the detention of children based on their migration status or their parents’ migration status is a clear human rights violation. In 2015, Juan Mendez, the former U.N. Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment stated that “States should, expeditiously and completely, cease the detention of children, with or without their parents, on the basis of their immigration status.” Both Juan Mendez and his successor, Nils Melzer, agree that the detention of migrant children based solely on migration status is never in the best interests of the child, as it “exceeds the requirement of necessity and proportionality and, even in case of short-term detention, may amount to ill-treatment.” The European Court of Human Rights has noted that the best interests of the child must be determined on an individual basis in assessing the possibility to admit, return, expel, deport, repatriate, reject at the border.

The U.N. Special Rapporteur on the human rights of migrants dedicated his 2020 thematic report to ending the immigration detention of children. In that report he stated that the “human rights of children have neither nationality nor borders.” The child’s right to non-discrimination includes the protection of children against all forms of discrimination and punishment, “including specifically on the basis of the status of the child and his or her parents or family members.” The Special Rapporteur on migrants also stated that the “imperative requirement not to deprive the child of liberty extends to the child’s parents and requires the authorities to provide alternative measures to detention for the entire family.” Clearly U.S. practices of depriving children of their liberty, without access to adequate food, healthcare, or education, separated from their family members, for prolonged periods of time in hieleras, solely based on their migration status, is a violation of international human rights law.

U.S. Should Explore a Path Towards the Abolition of Immigration Detention for Children

The United States is closer than many may think to abolishing the immigration detention of children. The Biden Administration has officially halted the practice of caging children at the border since 2021, instead releasing migrant children and their families into the United States with ankle bracelets or traceable cellphones to keep track of them. The U.S. government has recognized that the harms perpetrated on children are severe and long-lasting, and though the United States has not outlawed the practice, U.S. law already provides for limits on immigration detention of children and minimum standards of detention conditions.

Moreover, and despite American exceptionalism, the United States does regularly avail itself to the expertise and guidance of human rights mechanisms. For example, the United States rejoined the U.N. Human Rights Council, the United States attends and participates in treaty body reviews, the Universal Periodic Review, Inter-American Commission hearings, and official visits from human rights experts.

If President Biden hopes to stick to his commitment of avoiding the detention of migrant children at all costs, he will need help. Instead of making excuses, the U.S. government should take advantage of the expert guidance that can be provided by international human rights mechanisms, including by the U.N. Human Rights Committee during its review of the United States in October 2023. Compliance with recommendations made by international human rights mechanisms is voluntary and relatively little domestic attention is given to U.S. engagement with these mechanisms. The expertise and guidance that international human rights mechanisms can provide on this subject is unparalleled.

Abolition of immigration detention of children is the right thing to do and in line with U.S. international human rights obligations; the United States can start down the path of dismantling its racist, oppressive, and violent immigration system and prevent future long-term harm to the hundreds of thousands of migrant children each year.

The UN Human Rights Committee Will Review the U.S. Next Month. Why Not Engage with the Committee on the Abolition of Immigration Detention of Children? – Part I

By Lauren E. Bartlett

Prof. Bartlett writes this two-part post on the U.N. Human Rights Committee’s upcoming review of the United States during the week of October 16^th.

The U.S. human rights record will be on full display next month when the U.N. Human Rights Committee finally gets to review the Fifth Periodic Report submitted by the United States during the final days of the Trump administration in January 2021. Some important federal immigration policies have changed for the better under the Biden administration, including a halt, however temporary it might be, on the inhumane practice of detaining migrant children and their families in cages at the border. However, the U.S. report does not reflect those changes despite calls by human rights advocates for updates and it is unlikely that the topic of the abolition of immigration detention of children will be given much play during the review.

If the Biden administration is serious about forging a path towards the abolition of immigration detention of children, it should at the very least engage on the topic with international human rights mechanisms, including during the upcoming review of the United States by the U.N. Human Rights Committee. This is a relatively low stakes step that the U.S. government can take towards abolition.

Migrant Children Detained at the U.S. Border

Detaining children in cages even for short periods of time is traumatic and has negative long-lasting impacts on child health and well-being. While some countries around the globe have outlawed the detention of children based solely on migration status, U.S. law allows officials to put children in cages at the border for up to twenty days and that time limit is rarely enforced.

Until just a year and a half ago, the United States detained hundreds of thousands of migrant children in cages each year. Out of nearly 2 million people detained by the United States at the border from February 2017 through June 2021, more than 650,000 were children. Children detained at the border were held in cages that were built decades ago, at a time when most detained migrants were adult men who were held briefly and rapidly deported. Migrant children were detained in wire cages or tents and then were later moved to larger cinder block cells. The children reported that the food was spoiled and made them sick. Kids with injuries, fevers, coughs or stomachaches could not get basic medical care. Children were held for weeks in the same wet and filthy clothes after journeying thousands of miles and crossing the Rio Grande river. Children also reported bone-chilling cold from the air-conditioned cinder block cells, which are known across the border as hieleras, meaning iceboxes in Spanish.

There are many excuses used by the U.S. government for putting migrant children in cages. These excuses include security and terrorism, deterrence, risk of absconding, public health, and ensuring the child’s well-being. However, detention is never in a child’s best interest and the ill-treatment endured by child migrants means these excuses fall short of justifying these practices. Moreover, many of the detained migrant children, up to forty-six percent or more, had valid asylum claims and require protection as refugees under international law.

At least for the time being, the U.S. government no longer puts migrant children in cages. Today, migrant children with their families at the border must wait near the border for their turn to use the mobile app called CBP One. The U.S. Department of Homeland Security is allowing roughly 40,000 migrants per month to make appointments through the CPB one app, with more than 100,000 migrants waiting to use the app at any given time. If a family receives an appointment and their asylum claims are processed by the Border Patrol, they are supposed to be briefly processed by the Border Patrol and then released into the United States with their movements tracked through a GPS monitoring device, such as ankle bracelets or traceable cellphone.

Unaccompanied children at the border detained by Border Patrol are now supposed to be immediately transferred to the U.S. Department of Health and Human Services’ Office of Refugee Resettlement (ORR). The ORR places unaccompanied children in shelters and then with sponsors, usually family members, as they await immigration proceedings. Though the ORR has used large temporary facilities to detain unaccompanied children at the border in the past, which resemble the Border Patrol cages and hieleras, no migrant children have been held in such a temporary facility since 2022 according to the ORR’s website.

While current practices regarding migrant children at the border do not officially involve cages, there are ongoing worries about conditions in the CBP and ORR facilities. In addition, there is a strong argument that GPS monitoring is just another form of oppressive and racialized violence perpetuated against migrants. The bottom line is that no inhumane, cruel or tortuous practices should be perpetuated by the U.S. government against migrant children.