Human Rights At Home Blog

New Article: Mental Health as a Basic Human Right and the Interference of Commercialized Science

Lisa Cosgrove and Allen F. Shaughnessy, Mental Health as a Basic Human Right and the Interference of Commercialized Science, Health and Human Rights Journal (2020), https://cdn1.sph.harvard.edu/wp-content/uploads/sites/2469/2020/06/Cosgrove.pdf. Abstract pasted below.

Although there is consensus that a rights-based approach to mental health is needed, there is disagreement about how best to conceptualize and execute it. The dominance of the medical model and industry’s influence on psychiatry has led to an over-emphasis on intra-individual solutions, namely increasing individuals’ access to biomedical treatments, with a resultant under-appreciation for the social and psychosocial determinants of health and the need for population-based health promotion. This paper argues that a robust rights-based approach to mental health is needed in order to overcome the effects of commercial interests on the mental health field. We show how commercialized science—the use of science primarily to meet industry needs—deflects attention away from the sociopolitical determinants of health, and we offer solutions for reform.

New Article: Evaluating the Implementation of Human Rights Law: A Data Analytics Research Agenda

Evaluating the Implementation of Human Rights Law: A Data Analytics Research Agenda, University of Pennsylvania Journal of International Law, Vol. 43, 2021 Forthcoming. Abstract below.

The United Nations’ reporting process, a built-in component of all major human rights treaties, enables monitoring and evaluation of countries’ progress toward human rights goals. However, the operation and effectiveness of this process have been largely under-studied. This Article lays the foundations for a data analytics research agenda that can help assess the reporting process and inform human rights law implementation. As a first step, we use a relatively new set of computational tools to evaluate the Concluding Observations issued by a human rights treaty body, the Committee on the Rights of the Child. The Concluding Observations provide both an appraisal of states’ practices and a set of recommendations that act as an agenda for the state going forward. Using text and data analytics tools, we mined the text of Concluding Observations issued by the Committee on the Rights of the Child over a twenty-seven year period to identify the topics addressed in each report and parsed the language of these reports to determine the tenor and tone of the Committee’s discussion. We then mapped our findings by state and year, to form a detailed descriptive picture of what the Committee has said, and how the Committee has delivered its message(s), across both geography and time. In doing so, we hope to show how these data analytics tools can contribute to a deeper understanding of the Committee’s work and, more broadly, of the effectiveness of the reporting process in securing and protecting human rights.

News: Access to water is a human right. When will the U.S. government agree?

Martha F. Davis, Access to water is a human right. When will the U.S. government agree?, WBUR (Nov. 3, 2021). Excerpt below:

“Water is life, and water policy should be a central concern of nations as they gather for the COP26 in Glasgow this week. The need to prioritize water is all around us: more flooding and drought, the growing incidents of water contamination and rising costs of maintaining potable water for drinking, cooking and hygiene.

For the first time at a U.N. climate conference, concerned members of the water sector — governments and non-governmental partners — have come together to sponsor a Water & Climate pavilion where attendees can hear from experts, conduct side discussions, network and engage with youth activists around water issues. The stated intent is to develop a ‘unified voice on the role of water in meeting the goals of the Paris Agreement and to support ambitious and science-based global climate action.’

Unfortunately, the United States has often been on the sidelines during international discussions of water challenges.”

New Article: Corporate Power over Human Rights

David Birchall, Corporate Power over Human Rights, Encyclopedia of Business Ethics (October 4,2021), Abstract Below.

The business and human rights (BHR) movement has developed rapidly since the 1990s, in lockstep with spiralling corporate size, wealth and influence. BHR attempts to hold corporations to account for human rights abuses. As such it does not address corporate power directly, and it is not of fundamental importance to BHR whether corporations are growing more powerful in relation to governments, society, or smaller businesses. Rising corporate power, does, however, have marked effects on access to human rights.

Corporations evidently hold the power to abuse human rights and to avoid accountability for these abuses. This clear from numerous major cases, from the Bhopal gas leak to the collapse of Rana Plaza in Bangladesh, both of which resulted in major fatalities and demonstrated the failures of current practices, regulation and remedy. Environmental degradation with fatal consequences, modern slavery, and complicity with oppressive regimes are all examples of corporations using their power to further their profits through rights abuse.

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.

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.

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.

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

New Article: Investors as International Law Intermediaries: Using Shareholder Proposals to Enforce Human Rights

Kisha Parella, Investors as International Law Intermediaries: Using Shareholder Proposals to Enforce Human Rights, Seattle University Law Review, Vol. 45, No. 2 (forthcoming 2022). Abstract below.

One of the biggest challenges with international law remains its enforcement. This challenge grows when it comes to enforcing international law norms against corporations and other business organizations. The United Nations Guiding Principles recognizes the “corporate responsibility to respect human rights,” which includes human rights due diligence practices that are adequate for “assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed.” Unfortunately, many corporations around the world are failing to implement adequate human rights due diligence practices in their supply chains. This inattention leads to significant harms for the victims of these human rights abuses and a variety of risks – legal, reputational, business, and regulatory – for the companies involved. Over the years, lawsuits have been brought against Walmart, JC Penney, Hershey, Nestle, Purina, Tesla, Google, Chevron, and many others regarding their human rights practices.

This Article explores how shareholders have attempted to change the human rights due diligence practices of companies by submitting shareholder proposals requesting information on a company’s human rights policies, assessments, and implementation strategies. While many of these resolutions are filed by faith based organizations and other members of the Interfaith Center on Corporate Responsibility (ICCR), recent proposals have also received support from actors such as BlackRock and Vanguard. This Article provides a descriptive account of the proposals submitted, evaluates the various shareholder reasons for proposing and supporting these proposals, discusses the outcomes of these proposals (such as approval, exclusion, and withdrawal), and analyzes the possibilities and limitations of enforcing international human rights norms through the mechanism of shareholder proposals.

Margulies and Azmy Respond to Moyn

By Lauren E. Bartlett

A couple of weeks ago Yale Law professor Samuel Moyn wrote a scathing and seemingly unfounded attack on the late Michael Ratner of the Center for Constitutional Rights in the New York Review of Books. I had considered posting about that piece here, but decided that it was too strange and awkward, personally blaming one man who had passed away five years earlier for the endless war on terror, to be worthy of additional attention.

However, Joseph Margulies and Baher Azmy’s response to Moyn in Just Security is more than worth a read. Margulies and Azmy, as practicing attorneys, litigators, present their point of view in light of their long careers and personal experiences working alongside Ratner.   

In summing Moyn’s criticism of Michael Ratner, Margulies and Azmy state:

The idea is that by challenging detentions rather than the war itself…Ratner…validated the war on terror. And by smoothing down the roughest edges of the detention policy—providing detainees with a largely symbolic right of access to the courts, for instance—[he] gave a patina of legitimacy to what is at its core an illegal, immoral war, and in that way enabled our current quagmire of endless, boundless conflict.

Margulies and Azmy argue in response that “the idea that the detention litigation in general, or Rasul in particular, is somehow the reason the war on terror has become an endless, lawless monster is just silly” and also point out that “a person can obviously oppose war and torture at the same time, and Michael did both.”

They also point out that Moyn may also be “simply making the spectacularly banal point that litigation has unintended, and sometimes tragic consequences.” To that point, Margulies and Azmy respond:

But as our friend and Yale law professor Hope Metcalf says, “so what?” No experienced civil rights lawyer, and certainly not one as political as Michael Ratner, needs a law professor to explain that the courts are not a reliable friend of the weak. The insight that litigation by itself cannot achieve progressive change was old when Gerald Rosenberg put it in writing 30 years ago. And tying this observation to a larger political lesson—that power adapts to protect its interests—was old when Marx wrote it down nearly two centuries ago.

I think Margulies and Azmy also did a wonderful job of highlighting the best of what Michael Ratner did, which is what the best human rights advocates do best:

lending our voice to men whose voices had been silenced, and demanding that the law protect them when the state would not.

 

 

Fight to Expose the Hidden Human Costs of Incarceration: Profile of Law Professor Andrea Armstrong

Law professor Andrea Armstrong at Loyola University New Orleans College of Law is profiled in the August 23, 2021, issue of the New Yorker. The article centers on her work to collecting and publicizing information about deaths of those incarcerated in detention facilities in Louisiana, but also covers her legal career, scholarship, advocacy, and even her personal life.  It is an inspiring portrait of a law professor fighting for the protection of rights of the incarcerated in her home state. 

Eyal Press, A Fight to Expose the Hidden Human Costs of Incarceration, The New Yorker, Aug. 23, 2021 Issue.

 

New Article: “One of the greatest human tragedies of our time”: The U.N., Biden, and a Missed Opportunity to Abolish Immigration Prisons

Lauren E. Bartlett, "One of the greatest human tragedies of our time": The U.N., Biden, and a Missed Opportunity to Abolish Immigration Prisons, Mitchell Hamline Law Journal of Public Policy and Practice, forthcoming Fall 2021. Abstract below.

Children in cages, rampant sexual abuse, lack of access to life-saving medical treatment, and more. These human rights violations continue to occur in immigration prisons in the United States today, and given the scope, many, including the United Nations, are pushing the United States to abolish immigration prisons altogether. However, the Biden administration has demonstrated that is not interested in supporting the abolition of immigration prisons, not even in the international human rights arena.

After providing a brief overview of international human rights law prohibiting immigration prisons, this essay explores U.N. recommendations on immigration prisons from each of the Universal Periodic Reviews of the United States over the past ten years, as well as the U.S. responses to those recommendations. Through that exploration, it is made clear that while the Biden administration has showed an eagerness for reform in other areas, the administration missed an important opportunity this year to step up as a global leader and demonstrate commitment to the progressive realization of the full spectrum of human rights of migrants and set the United States on a path towards the abolition of immigration prisons.

New Article: Convention on Human Rights of Older Persons

Alan Gutterman, Convention on Human Rights of Older Persons (June 29, 2021), available on SSRN. Abstract below.

Many have argued that it is appropriate to take into consideration the special circumstances of older persons when developing social and economic policies and there is a growing consensus regarding the need for explicit recognition of the specific rights of older persons in the form of an international convention or treaty that would raise the profile of the issues, serve as a basis for action in different contexts and empower advocates and members of that group to act. In addition, making certain rights explicitly applicable to older persons reduces the likelihood that they will be overlooked in the existing generic framework of human rights instruments that generally does not refer to age but relies solely on inferences that may be ignored or lack practical authority because they are difficult to apply to contexts that are different than those for which they were originally developed. Various arguments against and for a specific international convention or treaty for older persons have been made; however, the Covid-19 pandemic has created a new sense of urgency for such an instrument given the egregious violations of the human rights of such persons during the response to the emergency including discrimination, exclusion, marginalization, violence and abuse. Several roadmaps are available for negotiating and completing a new legally binding international instrument on the human rights of older persons including the UN Convention on the Rights of Persons with Disabilities, the Madrid International Plan of Action on Aging, the UN Principles for Older Persons and the Inter-American Convention on the Protection of the Human Rights of Older Persons and human rights advocates have grown frustrated with the pace of progress within the UN Open-Ended Working Group on Aging and urged States to stop talking and start writing in order to bring the project to fruition.

New Article: The Intellectual Property Turn in Global Health: From a Property to a Human Rights View of Health

Laura G. Pedraza-Fariña, The Intellectual Property Turn in Global Health: From a Property to a Human Rights View of Health, 36 Osiris 241 (2021), Northwestern Public Law Research Paper No. 21-20. Abstract below.

International intellectual property (IP) law for pharmaceuticals has fundamentally shifted in the twenty-first century from a property-centric to a human rights view. Scholars tend to explain this transformation in the context of both the power struggle between developing and developed countries, and the influence of a social movement that criticized IP rights as hindering access to essential medicines. Yet, these explanations leave out the central role of two international organizations, the World Trade Organization (WTO) and the World Health Organization (WHO), and particularly their permanent staffs, whose boundary disputes have shaped international IP law at the intersection of trade and global health. Bringing into conversation historical and legal literatures on global health and IP, this article traces how a human rights perspective on IP emerged as a strategy to reconcile the WHO staff’s sociomedical views of health with an increasingly dominant set of global IP rules. It shows how the WHO staff used the language of economics—an analytical frame favored by the WTO—to advance a then unorthodox economic understanding of IP as a type of governmental regulation. This allowed the WHO to argue that states should enjoy regulatory autonomy to curtail IP rights in order to meet broader state objectives, such as human rights protection. Paradoxically, despite their divergent views on the nature of IP, both WTO and WHO engagement with it heralded the emergence of a new technocratic view of global health that focuses on patentable medicines and technologies, and that has ultimately turned away from the WHO’s sociomedical roots.

Queering Bostock

Editor's Note:   Prof. Jeremiah Ho. has a new article addressing Bostock v Clayton County, Georgia.  Prof. Ho examines the limitations of the opinion, including the opinion's design to maintain the status quo for members of the LGBT+ community and those who benefit from the current social structure.  The article, Queering Bostock, is to be published imminently in the American University Journal of Gender, Social Policy & the Law, Vol. 29, No. 3, 2021.  Queering Bostock is available on SSRN.  

Below is the abstract:

Although the Supreme Court’s 2020 Title VII decision, Bostock v. Clayton County, Georgia, is a victory for LGBTQ individuals, its doctrinal limitations unavoidably preserve a discriminatory status quo. This Article critically examines how and why Bostock fails to highlight the indignities experienced by queer minorities under decades of employment discrimination. In Bostock, Justice Gorsuch presents a sweeping textualist interpretation of Title VII that protects against sexual orientation and gender identity discrimination. Yet, the decision sparsely recognizes queer lived experiences, compared to prior pro-LGBTQ cases where such recognition contributed to developing an anti-stereotyping framework that confronted some of the heteronormative biases that invigorate discrimination against queer individuals. In contrast, Bostock avoids any meaningful acknowledgment of the lives of the litigants or the experiences of anti-queer bias in exchange for a lengthy illumination of Justice Gorsuch’s textualist rationale.

When conceptions of sexuality and gender identity have been previously mischaracterized in favor of mainstream heteronormative values, the lived experiences of queerness are paramount for detecting discrimination and correcting it. This Article argues that Bostock’s neglect of queer lived experiences was not a forgivable oversight, merely collateral to its expansive textualist reading of Title VII. Rather, the neglect of lived experiences and anti-stereotyping frameworks was the price queer minorities had to pay for Title VII protection. In this way, this Article shows that Justice Gorsuch’s lack of regard for the lived experiences in Bostock tacitly privileges heteronormative values, underscores the status quo’s interest convergence, and ultimately limits the decision’s transformative appeal.

New Article: Global Impunity: How Police Laws & Policies in the World's Wealthiest Countries Fail International Human Rights Standards

Claudia Flores, Brian Citro, Nino Guruli, Mariana Olaizola Rosenblat, Chelsea Kehrer, and Hannah Abrahams, Global Impunity: How Police Laws & Policies in the World's Wealthiest Countries Fail International Human Rights Standards, 49 Ga. J. Int’l & Comp. L. 243 (2021). Abstract below.

The use of lethal force by law enforcement falls within the constraints set by international human rights. In particular, four standards govern whether and to what extent police may use lethal force: legality, necessity, proportionality, and accountability. However, every year, tens of thousands of civilians die at the hands of law enforcement worldwide, indicating a dysfunction in the nature of policing at a global scale. This study examines the written directives provided to police officers in the largest cities of the twenty-nine wealthiest countries and evaluates their compliance with the above standards. The study concludes that none of the directives in these cities complied with basic human rights standards, falling short in a variety of ways. By evaluating these directives, the report sheds light on enduring concerns about government abuses of power and suggests a way to constrain police use of force going forward.

New Article: Evaluating the Implementation of Human Rights Law: A Data Analytics Research Agenda

Charlotte Alexander and Jonathan Todres, Evaluating the Implementation of Human Rights Law: A Data Analytics Research Agenda, University of Pennsylvania Journal of International Law, Vol. 43, forthcoming 2021. Abstract below.

Human rights law relies on national-level implementation and enforcement to give it full meaning. The United Nations’ reporting process, a built-in component of all major human rights treaties, enables monitoring and evaluation of countries’ progress toward human rights goals. However, the operation and effectiveness of this process have been largely under-studied. This Article lays the foundations for a data analytics research agenda that can help assess the reporting process and inform human rights law implementation. As a first step, we use a relatively new set of computational tools to evaluate the Concluding Observations issued by a human rights treaty body, the Committee on the Rights of the Child. The Concluding Observations provide both an appraisal of states’ practices and a set of recommendations that act as an agenda for the state going forward. Using text and data analytics tools, we mined the text of Concluding Observations issued by the Committee on the Rights of the Child over a twenty-seven year period to identify the topics addressed in each report and parsed the language of these reports to determine the tenor and tone of the Committee’s discussion. We then mapped our findings by state and year, to form a detailed descriptive picture of what the Committee has said, and how the Committee has delivered its message(s), across both geography and time. In doing so, we hope to show how these data analytics tools can contribute to a deeper understanding of the Committee’s work and, more broadly, of the effectiveness of the reporting process in securing and protecting human rights.

New Article: Housing as a Right in the United States: Mitigating the Affordable Housing Crisis Using an International Human Rights Law Approach

Maria Massimo, Housing as a Right in the United States: Mitigating the Affordable Housing Crisis Using an International Human Rights Law Approach, 62 B.C. L. Rev. 273 (2021). Abstract below.

Throughout its history, the United States has perpetuated a double standard in regard to international human rights by urging other nations to protect and promote these rights, while simultaneously forgoing international human rights treaties in favor of its own Constitution and domestic human rights laws. Notably, the United States does not recognize one of the fundamental rights introduced by the Universal Declaration of Human Rights in 1948 and contained in the International Covenant on Economic, Social and Cultural Rights: The right to adequate housing. Failure to recognize housing as a human or constitutional right has led to a worsening affordable housing crisis in the United States. Domestic policy has proven insufficient to combat this crisis, and the United States must adopt a different approach for resolution. This Note argues that state governments should borrow from international human rights treaties and foreign housing law, and recognize housing as a justiciable right in an attempt to mitigate the affordable housing crisis. States can best ensure a right to housing by including housing as a right in their respective constitutions and creating oversight bodies to promote and protect this new constitutional right.

New Article: Zero-Tolerance: The Trump Administration's Human Rights Violations Against Migrants on the Southern Border

Jeffrey R. Baker and Allyson McKinney Timm, Zero-Tolerance: The Trump Administration's Human Rights Violations Against Migrants on the Southern Border, 13 Drexel Law Review 581 (2021). Abstract below.

In 2017, the Trump Administration imposed its policy of zero-tolerance immigration enforcement on the southern border. This policy resulted in the forcible separation of families and the prolonged detention of children in harsh conditions, without due process or adequate resources. The Trump Administration unleashed these policies to deter people from immigrating and seeking asylum, consistent with President Trump’s racist rhetoric and campaign promises. This article analyzes and critiques these policies based on international human rights law, noting the resonance human rights norms find among diverse religious traditions.

The article begins with detailed analysis of the Trump Administration’s policies that divided families and detained children in wretched conditions, in violation of U.S. law. It proceeds to evaluate and criticize these policies under treaties ratified by the U.S., conventions it has signed but not ratified, and established customary international law. In the name of border enforcement and immigration deterrence, the Trump Administration’s policies violated the fundamental human rights of migrants and people seeking asylum in the United States, including the right to family life, rights of the child, and rights to be free from ill-treatment and arbitrary detention. The abrupt and often permanent separation of families, the indefinite detention of children without proper care, and the failure of process in these policies are all stark violations of binding international human rights laws. These policies affront the moral conscience of multitudes, eliciting sustained protest from civil society and faith leaders.

The article concludes with a recognition that international institutions and legal mechanisms may not be adequate to compel the Trump Administration to respect international law, so political and electoral responses are vital to ensure that human rights remain at the heart of the American enterprise. It suggests the accord between religious, ethical perspectives and human rights principles is valuable to reinforcing popular support for these norms. As the world bears witness to these cruel abuses of human rights, Americans must decide whether and how to hold the government accountable for the inherent dignity of all people within the rule of law.