Human Rights at Home Blog

New Article: Commission on Recognition and Reconstruction for the United States: Inspirational or Illusory?

Penelope Andrews, A Commission on Recognition and Reconstruction for the United States: Inspirational or Illusory?, 66 N.Y.L. Sch. L. Rev 359 (2022). Abstract below.

In this article I suggest that President Joe Biden issue an executive order to establish a Commission on Recognition and Reconstruction (CRR) to comprehensively confront the ongoing challenges to racial justice. I envisage the CRR as an adjunct to, and not a replacement for, the several measures currently being undertaken in law and policy to address these challenges. I imagine the CRR providing a national focus on the many ways that public and private institutions have responded to this current moment of racial distress, while also highlighting the obstacles and omissions toward the attainment of racial justice. The proposed CRR would then establish goals to be measurable in the short-, medium-, and long-term.

New Article: Foreword: Centering Intersectionality in Human Rights Discourse

Johanna Bond, Foreword: Centering Intersectionality in Human Rights Discourse, 79 Wash. & Lee L. Rev. 953 (2022). Abstract below.

In the last decade, intersectionality theory has gained traction as a lens through which to analyze international human rights issues. Intersectionality theory is the notion that multiple systems of oppression intersect in peoples’ lives and are mutually constitutive, meaning that when, for example, race and gender intersect, the experience of discrimination goes beyond the formulaic addition of race discrimination and gender discrimination to produce a unique, intersectional experience of discrimination. The understanding that intersecting systems of oppression affect different groups differently is central to intersectionality theory. As such, the theory invites us to think about inter-group differences (i.e., differences between women and men) and intra-group differences (i.e., differences in the experiences of discrimination and rights violations between white women and women of color).

New Article: Human Rights and Lawyer's Oaths

Lauren E. Bartlett, Human Rights and Lawyer’s Oaths, 36 Geo. J. Legal Ethics ____ (2023). Abstract below.

Each lawyer in the United States must take an oath to be licensed to practice law. The first time a lawyer takes this oath is usually a momentous occasion in their career, marked by ceremony and celebration. Yet, many lawyer’s oaths today are unremarkable and irrelevant to modern law practice at best, and at worst, inappropriate, discriminatory, and obsolete. Drawing on a fifty-state survey of lawyer’s oaths in the United States, this article argues that it is past time to update lawyer’s oaths in the United States and suggests drawing on human rights to make lawyer’s oaths more accessible and impactful.

New Article: Mobilizing Universalism - The Origins of Human Rights

Catherine B. Duryea, Mobilizing Universalism: The Origins of Human Rights, Berkeley J. of Int’l L. Vol. 40, Iss. 1, Art. 3. (August 2022). Abstract Below.

Human rights law claims to be universal, setting rights apart from paradigms based on shared religion, culture, or nationality. This claim of universality was a significant factor in the proliferation of human rights NGOs in the 1970s and remains an important source of legitimacy. The universality of human rights has been challenged and contested since they were first discussed at the United Nations (UN). Today, much of the debate centers around the origins of human rights-particularly whether they arose out of Western traditions or whether they have more global roots. For too long, discussions about universality have ignored the practice of human rights in the Global South, particularly in Arab countries. Instead of searching for evidence of universality in the halls of the UN, this Article looks at how activists mobilized and produced universality through their work. Archival sources and interviews show that the turn to human rights in the Arab world was rooted in the politics of the 1970s but relied on the concept of universality as embodied in the foundational human rights documents of the 1940s and 1960s. Activists used these documents to advance conceptions of human rights that were compatible with several distinct political visions. Their work supports the claim that human rights can be universal, not because rights exist outside of politics or have diverse origins, but because they were constantly reinvented to support a range of different, sometimes contradictory, political goals.

New Article: (G)local Intersectionality

Martha F. Davis, (G)local Intersectionality, 79 Wash. & Lee L. Rev. 1021 (2022). Abstract below.

Intersectionality theory has been slow to take root as a legal norm at the national level, even as scholars embrace it as a potent analytical tool. Yet, in recent years, intersectionality has entered law and policy practices through an unexpected portal: namely, local governments’ adoption of international norms. A growing number of local governments around the world explicitly incorporate intersectionality into their law and practice as part of implementing international antidiscrimination norms from human rights instruments like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Elimination of All Forms of Racial Discrimination.

This “relocalization” phenomenon—which brings intersectionality back to its roots in domestic law—is visible in many parts of the world. In Europe, cities in Spain proactively integrate intersectional approaches into their local human rights regimes. Outside of Europe, Montréal applies an intersectional analysis under its Charter of Rights and Responsibilities, a local governance document grounded in the values of fundamental human rights and dignity. Human rights cities like Gwangju, Korea, embrace intersectionality as a programmatic imperative. In the United States, San Francisco, Pittsburgh, Los Angeles, and Cincinnati, among others, incorporated intersectional approaches to nondiscrimination in the wake of adopting local CEDAWs.

The relocalization process is not always straightforward. Challenges include the difficulties of reconciling local intersectional approaches with national laws that may not recognize intersectionality, and developing indicators tailored to local experiences. On the other hand, local adoption of intersectionality opens up robust possibilities for participation in communities’ legal and political processes, which many local governments emphasize.

New Publication: ABA Human Rights Magazine: Economics of Voting Rights

American Bar Association Section of Civil Rights and Social Justice, Human Rights Magazine: Economics of Voting Rights, Vol. 48, No. 1 (October 2022). Excerpt from introduction and featured articles below.

Introduction

Juan R. Thomas - “My theme as chair of the ABA Section of Civil Rights and Social Justice for the 2022–23 bar year is economic justice. I believe that a civil rights agenda without an economic agenda is like clapping with one hand. As the 2022 midterm election approaches, it is particularly timely to focus our attention on the economics of voting rights and the role money plays in our body politic. I want to sincerely thank the authors of this edition of Human Rights magazine for helping me realize my vision of economic justice in the context of voting rights.”

Featured Articles

• How Inequality Impacts Voting Behavior by Cynthia A. Swann and Elizabeth M. Yang
• Human Rights Hero: The Election Worker by Bobbi M. Bittker
• Gender Parity in Election Laws: Past, Present, and Future by Amber Maltbie, Elizabeth M. Yang, Jason Kaune, and Katherine Mirassou
• The Battle to Disenfranchise Indigenous Voters by Robert O. Saunooke
• The Modern Poll Tax: Too Many States Condition the Right to Vote on the Payment of Court Debt by Hon. Lisa Foster

To read more and access other articles in this issue of the ABA’s Human Rights Magazine, click here.

New Article: Certain Prosecutors: Geographical Arbitrariness, Unusualness, & the Abolition of Virginia’s Death Penalty

Bernadette M. Donovan, Certain Prosecutors: Geographical Arbitrariness, Unusualness, & the Abolition of Virginia’s Death Penalty, Washington and Lee Journal of Civil Rights and Social Justice, Vol. 29, Issue 1, Fall 2022. Abstract below.

Virginia’s abolition of the death penalty in 2021 was a historic development. As both a southern state and one of the country’s most active death penalty jurisdictions, Virginia’s transition away from capital punishment represented an important shift in the national landscape. This article considers whether that shift has any constitutional significance, focusing on the effect of Virginia’s abolition on the geographical arbitrariness of the country’s death penalty.

As a starting point, the death penalty in America is primarily regulated by the Eighth Amendment, which bars “cruel and unusual punishments.” The United States Supreme Court has held that the death penalty is not per se unconstitutional, but that the Eighth Amendment constrains its application. In particular, modern death penalty law is concerned with the arbitrary or unusual infliction of the death penalty. Since 2015, the concept of “geographical arbitrariness”—that the death penalty’s localization could render it so random or rare as to be unconstitutional—has gained increased attention.

This Article examines whether and how Virginia’s abolition contributes to the geographical arbitrariness of capital punishment in America. The Article finds that Virginia’s experience demonstrates the geographical arbitrariness of the contemporary death penalty in two important ways. First, this Article examines the localization of capital sentencing within Virginia. Capital sentencing and execution data show that as Virginia’s death penalty declined, the practice was kept alive by a small minority of prosecutors who had an unusual passion for death sentencing. In its latter years, Virginia’s death penalty thus increasingly reflected the unfettered discretion of local decisionmakers. Second, this Article considers how Virginia’s abolition affected the national landscape of the death penalty. The Article concludes that both quantitively and qualitatively, the end of Virginia’s death penalty supports a conclusion that capital punishment has become too arbitrary to be constitutional.

New Articles: University of Miami International and Comparative Law Review 2021 Symposium on International Law & COVID-19

The University of Miami International and Comparative Law Review has published it's symposium issue on International Law & COVID-19.  The articles are now also available on the 2021 International Law & COVID-19 Symposium website, along with videos from the various symposium sessions.  The special issue of the Law Review includes a synopsis report from the symposium, a piece on international regulation and epidemics, an article on the Inter-American Commission on Human Rights’ response to COVID-19, and an article on the duty to protect survivors of gender-based violence in the context of COVID-19, along with a few others. 

Imagine a Day Without Water 2022

From Martha F. Davis, Co-Editor.

 

Today is the annual "Imagine a Day Without Water" Day of Action.

 

To promote greater attention to water affordability and the human right to water for ALL, Northeastern Law School's Program on Human Rights and the Economy has today issued a Briefing Paper: How Five Creative Water Utilities Are Assisting “Hard-to-Reach” Renters as Water Rates Rise.

 

Rising water prices nationwide affect everyone, but the impact on renters is often obscured and forgotten, as they often pay for water prices through rent increases.  Ostensibly neutral on its face, the targeting of water assistance to homeowners is an example of structural racism, since the racial housing gap, the history of redlining and other instances of race-based housing discrimination means that people of color are disproportionately renters.

 

A handful of water utilities around the country have prioritized the assistance to renters, taking different approaches to the problem of assisting water consumers who are not themselves paying water bills. This Briefing Paper highlights the mechanisms adopted by these utilities, in hopes of spreading the word that there are viable approaches to increasing water equity for renters.

New Article: The State, the UDHR, and the Social Construction of Family in Human Rights: The Case of the Scarborough 11

Abby S. Willis, Mary C. Burke, Davita Silfen Glasberg, The State, the UDHR, and the Social Construction of Family in Human Rights: The Case of the Scarborough 11, Societies Without Borders, Volume 16 Issue 1 (2022). Abstract below.

The Universal Declaration of Human Rights (UDHR) declares in Article 16(3) that “the family is the natural and fundamental group unit of society and is entitled to the full protection by society and the state.” However, the UDHR does not define family, but rather presumes it is defined by traditional heteronormative marriage in a nuclear family. The failure of the UDHR to consider a more expansive view of family leaves the definition of family centrally in the hands of the state, and affects the ability of all but traditional nuclear family forms to access other human rights. We add to the scholarship on the role of the state in defining and maintaining family and family inequality through an examination of the case of the Scarborough 11, an intentional family sued by the city of Hartford, CT for violations of residential zoning ordinance based on family. This case challenges hegemonic constructions of family and illustrates the limits of the UDHR to protect all families. The case demonstrates the importance of the related questions: 1) how legal definitions of family create the capacity for local residents to understand non-nuclear families living among them, 2) whether the end-goal of this problem should be to expand the state’s definition of family or remove that power from the state in total (a question of reform vs. abolition) and, 3) what might a case concerning white middle-class professionals’ struggles to thrive tell us about boundary maintenance and the struggles of the poor to survive?

New Article: I Exist, Therefore I Should Vote: Political Human Rights, Voter Suppression and Undermining Democracy in the U.S.

Davita S. Glasberg, William T. Armaline, Bandan Purkayastha, I Exist, Therefore I Should Vote: Political Human Rights, Voter Suppression and Undermining Democracy in the U.S., Societies Without Borders, Volume 16 Issue 1 (2022). Abstract below.

The right to vote is clearly delineated among the rights identified in the Universal Declaration of Human Rights, and the US has long held itself as the beacon of that democracy and enfranchisement. Yet, a long history persists of practices and policies of voter suppression and gerrymandering that targets the rights of Black, brown, and indigenous populations in the US, a history that has in recent years escalated. We use the framework of the Human Rights Enterprise to unpack this history and to explore why efforts of voter suppression are intensifying at this particular moment in history.

New Article: The Declaration Against Arbitrary Detention in State-to-State Relations: A New Means of Addressing Discrimination Against Foreign and Dual Nationals?

Leigh T. Toomey, The Declaration Against Arbitrary Detention in State-to-State Relations: A New Means of Addressing Discrimination Against Foreign and Dual Nationals?, Harvard Human Rights Journal, Vol 35, Spring 2022. Excerpt from introduction included below.

“In February 2021, Canada launched the Declaration Against Arbitrary Detention in State-to-State Relations (“Declaration”) in order to enhance international cooperation in deterring the detention of foreign and dual nationals for the purpose of diplomatic coercion, and to address this form of detention whenever and wherever it occurs. The Declaration is the first of its kind in seeking to address the specific challenge of the arbitrary detention of foreign and dual nationals and their use as “bargaining chips in international relations.”

This Commentary considers the new Declaration, arguing that it is a promising initial response to the urgent need for the international community to denounce the detention of individuals because of their status as foreign or dual nationals. To highlight the prevalence of the arbitrary detention of foreign and dual nationals and the urgency of addressing it, this Commentary reviews recent opinions of the UN Working Group on Arbitrary Detention (“Working Group”). In all of the opinions reviewed, the Working Group found that foreign and dual nationals had been arbitrarily detained due to discrimination based on their nationality, or because they were not afforded their right to consular assistance. The Working Group has welcomed the Declaration, noting that “[i]ts aims and purposes relate closely to the concerns expressed by the Working Group in the past” and that it stands ready, within the remit of its mandate, to support this initiative and to engage with States that have endorsed it. This Commentary takes a similar approach in welcoming the Declaration, while being mindful that States must take action to implement its principles.”

New Article: Let Them Eat Rights: Re-Framing the Food Insecurity Problem Using a Rights-Based Approach

Benedict Sheehy & Ying Chen, Let Them Eat Rights: Re-Framing the Food Insecurity Problem Using a Rights-Based Approach, 43 Mich. J. Int'l L. 631 (August 2022). Abstract below.

Food insecurity is a global issue. Large parts of the global population are unable to feed themselves adequately with hundreds of millions of people suffering from hunger and malnutrition. This problem is recognized widely by governments, industry and civil society and is usually understood using one of three approaches or frames: a basic production problem solved by technology and increased industrialization of agricultural, and an economic problem solved by economic growth and a commercial problem resolved by expanding markets. Much of the discussion and policy advice is based on the premise that hunger is primarily a wealth issue and, that as wealthy countries do not have hunger, the solution is economic development. Using Erving Goffman’s theory of framing, we argue that these frames are inadequate as evidenced by the failure to solve this very basic, but complex problem in both poor and wealthy countries on the one hand nor explain the success of some developing countries on the other. After analyzing the three frames and their limitations, we propose a rights-based frame and explain how rights are an important part of solving the complex problem of hunger. We examine how rights-based approaches have worked by creating three categories based on the status of food rights within the respective constitutional frameworks of those jurisdictions. In each of the three categories, we examine specific jurisdictional frameworks, evidence of performance and evaluate their success. Based on that review, analysis and evaluation, we identify the legal elements of an effective right to food.

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.

 

New Article: Hidden Burdens: Household Water Bills, “Hard-to Reach” Renters, and Systemic Racism

Martha F. Davis, Hidden Burdens: Household Water Bills, “Hard-to Reach” Renters, and Systemic Racism, 52 Seton Hall Law Review 1461 (2022). Excerpted below (citations removed).

        “It is not just far away locales where water access is wielded in this way. In the United States, Black and Brown people often bear the brunt of such policies and practices. For example, for decades, a predominantly African American neighborhood in Zanesville, Ohio, was denied a connection to the city’s water system—an abuse of power that jeopardized public health and demeaned the community until a 2002 civil rights complaint and a federal lawsuit forced a change. In Detroit, Michigan, beginning in 2014, tens of thousands of low income people, primarily Black, found their water shut off for nonpayment; many of those affected speculated that the city’s goal was not merely to collect outstanding funds, but to compel low income residents to leave their homes and make way for new, more lucrative (and whiter) development.

        Sometimes the control of water—and the racial impacts of that control—are more subtle, reflected in administrative inaction, buried in complex bureaucratic structures, or even framed as positive environmental initiatives. The diffusion of responsibilities for water administration between different levels of government can further obscure discriminatory impacts that would be more visible in a unified system. Neutral-sounding terminology may also hide the racial realities.

        This Article argues that the complexities of household water billing combined with the indifference of utilities and government authorities to the needs of “hard-to-reach” water consumers—primarily renters in multi-family dwellings—have left many low income, disproportionately minority tenants, excluded from programs designed to help with rising water and wastewater expenses.”

New Article: Defining Sexual Orientation: A Proposal for a New Definition

Andrew Park, Defining Sexual Orientation: A Proposal for a New Definition, Michigan Journal of Gender and Law, Volume 29 (2022). Abstract below.

Laws prohibiting discrimination based on sexual orientation are becoming more common in all parts of the world. Few of these laws provide useful definitions of the term sexual orientation. As a result, the meaning and impact of these laws remains unclear. This article reviews past and current definitions of sexual orientation according to how well they incorporate current empirical knowledge of sexual orientation, and how their use in human rights laws impacts the dignity, right to equality, and human development of sexual minorities. The Article gives particular attention to the definition of sexual orientation found in the Yogyakarta Principles which has been adopted by a number of jurisdictions throughout the world. Because this definition views sexual orientation through a heteronormative lens, its use restricts sexual freedoms and undermines the dignity of individuals with non-conforming sexual orientations. The Article proposes a multidimensional definition of sexual orientation grounded in current scientific knowledge of how sexual orientation is manifested in the lives of sexual minorities.

New Article: The Right to Remain

Timothy E. Lynch, The Right to Remain, Washington International Law Journal, Volume 31 (June 2022) Abstract below.

Article 12.4 of the International Covenant on Civil and Political Rights (ICCPR) states, “No one shall be arbitrarily deprived of the right to enter his own country.” Citizens clearly enjoy Article 12.4 rights, but this article demonstrates that this right reaches beyond the citizenry. Using customary methods of treaty interpretation, including reference to the ICCPR’s preparatory works and the jurisprudence of the Human Rights Committee, this article demonstrates that Article 12.4 also forbids States from deporting long-term resident noncitizens—both documented and undocumented—except under the rarest circumstances. As a result, the ICCPR right to remain in one’s own country is a right that should be particularly valuable to the many people in the world who have lived in, and established a relationship with, a country which is not their country of citizenship—including lawful permanent residents, long-term refugees, Dreamers and other long-term undocumented residents, and people born in countries without birthright citizenship. These people cannot be deported from the countries they call home.

New Article: Localizing Human Rights in Cities

Tamar Ezer, Localizing Human Rights in Cities, Southern California Review of Law and Social Justice (Winter 2022).  Abstract below.

Today, we live in a world where norms can all too easily disintegrate.  Moreover, our realities are increasingly splintered with individually tailored social media, news sources, and search engines.  International human rights can provide a needed moral and legal compass, connecting us to global conversations and standards.  At the same time, to be meaningful, these standards must be localized and interpreted at community level.

Over the last two decades, cities throughout the world have espoused international human rights in various forms.  This development has caught on in the United States with close to a dozen self-designated human rights cities and a vibrant “Cities for CEDAW” movement, focused on protection of women’s rights.  This article probes this growing phenomenon and argues that local human rights implementation is a critical frontier, enabling a human rights approach to governance, strengthening participation and equality.  Closer to communities, human rights cities can democratize rights and move beyond the citizen construct at national level to embrace all inhabitants.  Cities also provide a critical vehicle to negotiate the inherent tension between the universality of human rights and respect for cultural and regional diversity.  Moreover, cities are particularly important as human rights actors in the US context, where federalism limits the reach of international treaties to address issues touching on criminal law, social welfare, and family relations, critical to women’s rights.  Cities can thus play a crucial role in realizing women’s equality, addressing cultural norms, jurisdictional barriers, and disparate impacts. The article further provides recommendations for better engagement with cities as human rights actors, currently in its infancy, at international, national, and local levels.

New Article: Can Social Media Corporations be held Liable Under International Law for Human Rights Atrocities?

Juliana Palmieri, Can Social Media Corporations be held Liable Under International Law for Human Rights Atrocities?, Pace International Law Review, Volume 34, Issue 2 (May 2022). Abstract below.

This article examines the relevant international law associated with genocide and hate speech and examines whether there are any legal grounds to hold a corporation liable for how people chose to use its product or service in relation to human rights violations. The analysis begins with a brief overview of international criminal and human rights law, relevant treaties, jurisdictional issues, and the legal theories of corporate criminal liability and complicity. Because current international law provides no clear answer, this article proposes that international courts use a balancing test which evaluates a non-exclusive list of ten main factors.