Human Rights at Home Blog

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.

 

New Article: Children's Rights and Human Rights Education Through Museums

Jonathan Todres and Anissa Malika, Children's Rights and Human Rights Education Through Museums, Boston University Public Interest Law Journal, Vol. 31, No. 3, pp. 239-274 (2022). Abstract below.

Human rights education has been recognized as critical to the advancement of human rights and the promotion of rights-respecting communities. Despite its value, many countries have lagged in their efforts to implement human rights education programs. Where human rights education has gained traction, it has been largely centered around school-based learning. For human rights education to be successful, policymakers and practitioners need to be creative in exploring diverse ways to implement and advance human rights education. This Article argues that it is critical for human rights education and, more specifically, children’s rights education to expand beyond classroom-based learning opportunities to take advantage of other spaces where young people spend time and where education about rights is possible. Given the value of the arts as a vehicle for expressing and advocating for human rights, this Article explores the role that museums might play in advancing human rights education for children. Museums are important fixtures in many cities and towns across the globe. In the United States, nearly 60% of the population visits a museum at least once a year. This gives museums broad reach and the potential to make human rights widely known. Further, shifts currently occurring within museums suggest this is a particularly important time to consider the role of museums vis-à-vis human rights. Many museums are becoming more focused on social justice issues. This evolution occurring in many museums highlights an opportunity for greater and deeper engagement among museum professionals, educators, and human rights researchers and advocates. This Article makes the case for growing and deepening such partnerships. It emphasizes the importance of attention to children’s rights and ensuring that all museums, not just children’s museums, consider their role in engaging young people on the topic of human rights.

New Article: Regulatory Responses to ‘Fake News’ and Freedom of Expression: Normative and Empirical Evaluation

Rebecca K Helm and Hitoshi Nasu, Regulatory Responses to ‘Fake News’ and Freedom of Expression: Normative and Empirical Evaluation, Human Rights Law Review, Volume 21, Issue 2, (June 2021). Abstract below.

National authorities have responded with different regulatory solutions in attempts to minimise the adverse impact of fake news and associated information disorder. This article reviews three different regulatory approaches that have emerged in recent years—information correction, content removal or blocking, and criminal sanctions—and critically evaluates their normative compliance with the applicable rules of international human rights law and their likely effectiveness based on an evidence-based psychological analysis. It identifies, albeit counter intuitively, criminal sanction as an effective regulatory response that can be justified when it is carefully tailored in a way that addresses legitimate interests to be protected.

New Article: Human Rights Council's Universal Periodic Review as a Forum of Fighting for Borderline Recommendations? Lessons Learned from the Ground

Kazuo Fukuda, Human Rights Council's Universal Periodic Review as a Forum of Fighting for Borderline Recommendations? Lessons Learned from the Ground, 20 Nw. J. Hum. Rts. 63 (2022). Abstract below.

Highly acclaimed as a key innovation of the United Nations Human Rights Council, the Universal Periodic Review (UPR) was created in 2006 as a cooperative, peer-review mechanism to shift away from the highly politicized Commission on Human Rights. Despite the significance and hope attached to the UPR, it has been conspicuously under-examined in the U.S. legal scholarship. And most relevant literature elsewhere has avoided directly addressing the fundamental question of exactly what the UPR’s added value is to the global human rights regime in terms of its direct contribution to improving human rights situations on the ground. This is mainly due to methodological and analytical challenges to measure the impact of the UPR in isolation from other existing human rights mechanisms. While acknowledging such challenges, this article attempts to provide one such answer to the question from a normative perspective: it argues that the UPR’s added value lies in providing a forum to incrementally and constantly challenge the threshold of states under review for accepting their commitment to addressing controversial human rights issues. Drawing from the experiences of the Lao People’s Democratic Republic and other countries as well as the literature on peer pressure and acculturation, this article articulates the current issues of the UPR mechanism in terms of recommendations given to states under review by their peers and suggests the way forward for the UPR mechanism by reframing it as a forum of fighting for borderline recommendations.

New Article: Climate Competence: Youth Climate Activism and Its Impact on International Human Rights Law

Aoife Daly, Climate Competence: Youth Climate Activism and Its Impact on International Human Rights Law, Human Rights Law Review, Volume 22, Issue 2 (June 2022). Abstract below.

Those who are under-18 are not often associated with the exercise of political rights. It is argued in this article however that youth-led climate activism is highlighting the extensive potential that children and young people have for political activism. Moreover, youth activists have come to be seen by many as uniquely competent on climate change. Youth activists have moved from the streets to the courts, utilising national and international human rights law mechanisms to further their cause. They are not the first to do so, and the extent of their impact is as yet unclear. Nevertheless, it is argued here that through applications such as Saachi (an application to the Committee on the Rights of the Child) and Duarte Agostinho (an application to the ECtHR) they are shifting the human-centric, highly procedural arena of international human rights law towards an approach which better encompasses person-environment connections.

New Article: The Draft Convention on the Right to Development: A New Dawn to the Recognition of the Right to Development as a Human Right?

Roman Girma Teshome, The Draft Convention on the Right to Development: A New Dawn to the Recognition of the Right to Development as a Human Right?, Human Rights Law Review, Volume 22, Issue 2 (June 2022). Abstract below.

The draft Convention on the Right to Development is being negotiated under the auspices of the Human Rights Council. This article seeks to explore the merits and the added value of the draft in terms of its normative contents particularly compared with its soft law predecessor—the Declaration on the Right to Development. It argues that the draft is a momentous step in the recognition of the right to development as a human right not only because it is binding, if adopted, but also contains concrete, detailed and implementable norms. While it maintained the abstract and aspirational formulation of norms under the Declaration to a certain extent, the draft also addresses some of the prevailing gaps and limitations of the Declaration.

 

Student Note: How the Grand Jury Process Diminishes Black Lives by Supporting Police Brutality and Racism

Kaeleigh Williams, How the Grand Jury Process Diminishes Black Lives by Supporting Police Brutality and Racism (2022). Abstract below.

Although the topic of police brutality and the need for police reform has been a popular topic of debate in recent years, the problem of police brutality is nothing new in the U.S. In the U.S, the harsh reality is that the problem of police brutality against Black people goes far beyond the highly publicized incidents. Police officers disproportionately kill Black people in America with impunity because our system of policing encourages such violence, and our legal system protects the use of such violence.  

This Note focuses on the problem of Black lives being unjustly taken by police officers and how there are very few instances where the police officers involved are charged for the deaths in these cases, let alone held accountable for their actions. Specifically focusing on the grand jury process and its downfalls, this Note argues that the grand jury process should not be used in cases of police brutality. Lastly, it calls for action from everyone, especially players in the legal system, in which everyone takes a stand against the problem of police brutality against Black people and understand that Black lives matter.  

Download Student Note (K. Williams)

New Article: Funding Global Governance

Kristina B. Daugirdas, Funding Global Governance, Law & Economics Working Papers. 216 (Oct. 1, 2021). Abstract below.

Funding is an oft-overlooked but critically important determinant of what public institutions are able to accomplish. This article focuses on the growing role of earmarked voluntary contributions from member states in funding formal international organizations such as the United Nations and the World Health Organization. Heavy reliance on such funds can erode the multilateral governance of international organizations and poses particular risks for two kinds of undertakings: normative work, such as setting standards and identifying best practices; and evaluating the conduct of member states and holding those states accountable, including through public criticism, when they fall short. International organizations have devised strategies for mitigating these risks, but those strategies are generally not codified in formal policies and are not visible to the public. This Article argues that more formal regulations are needed and outlines some possibilities for the form they might take.

New Article: Judging Women Who Kill Their Batterers in the United States: A Violation of Their Right to Equality Before the Law Under the ICCPR

Paulina Lucio Maymon, Judging Women Who Kill Their Batterers in the United States: A Violation of Their Right to Equality Before the Law Under the ICCPR, American University International Law Review, Vol. 37: Iss. 1, Article 3 (2022). Abstract below.

Research suggests that when women commit an offense against another’s life, they often do it in the context of domestic violence. Nevertheless, state and federal courts in the United States continue to ignore or inappropriately consider female defendants’ histories of domestic abuse and trauma in their criminal trials for killing their abusers. Many courts in the United States taint female defendants’ criminal trials by injecting gender biases and stereotypes, which often leads to miscarriages of justice. This Comment argues that the United States has violated female defendants’ rights to equality before the law under article 26 of the International Covenant on Civil and Political Rights (ICCPR) through its courts, which have discriminated against them on the basis of sex in their criminal trials for killing their abusers. National and local statistics and the criminal trials of five women convicted and sentenced for killing their batterers are analyzed to prove this violation. The Comment provides recommendations to prevent future violations and to provide redress to the women whose human rights were infringed. Although this article focuses on the United States, it outlines a pathway for women in other jurisdictions to assert their rights to equality before the law, under the ICCPR, when courts judge them based on myths and stereotypes.

News: In US v. Husayn (Abu Zubaydah), the Supreme Court Calls Torture What It Is

Joseph Marguiles, In US v. Husayn (Abu Zubaydah), the Supreme Court Calls Torture What It Is, Just Security (March 11, 2022). Excepts below.

"As I read the decision, Abu Zubaydah can rely on 28 U.S.C. Sec. 1782 to depose the architects of the CIA torture program, James Mitchell and Bruce Jessen, about what they saw, did, smelled, heard, and said – in short, about whatever their senses revealed to them – between December 2002 and September 2003, in support of a foreign criminal investigation underway in Poland."

[...]

"There is a space where conservative and liberal voices join. It is the belief that government service is a privilege, but only when government is honorable. When elected leaders betray their allegiance to the law and abandon their faith in the cleansing power of the truth, they must find no quarter in the Court."

New Article: Human Rights Originalism

Katharine Young, Human Rights Originalism, Georgetown Law Journal, Vol. 110, No. 5 (2022). Abstract below.

Are human rights to be found in living instruments and practices that adapt to changing circumstances, or must they be interpreted according to their original meaning? That question, so heavily debated in the context of the rights of the U.S. Constitution, was never seriously on the table until 2020. But when former Secretary of State Mike Pompeo called for “fresh thinking” about human rights, and its connection with “our nation’s founding principles,” he brokered a return to two landmark instruments of human rights—the Declaration of Independence of 1776 and the Universal Declaration of Human Rights of 1948. His Commission on Unalienable Rights obliged, presenting the familiar tropes of fixed sources, venerated authorship, and national identity, in order to accomplish a drastically different presentation of the meaning of human rights. The end result is an act of fusion—the powerful political and cultural valence of America’s constitutional originalism, applied to the human rights of American foreign policy.

This Article identifies this innovation as “human rights originalism.” Although the Report of the Commission on Unalienable Rights has, at least for now, been shelved, human rights originalism may be one of the most enduring legacies of the Trump Administration. As an interpretive theory, human rights originalism promises many of the same benefits as its constitutional counterpart—simplicity, popular reach, and control of rights’ unruliness and proliferation—this time wrested from unaccountable United Nations institutions and experts rather than courts. As a substantive departure from contemporary human rights, human rights originalism elevates the importance of religious freedom and property rights, and provides a selective diminishment of women’s rights, LGBTQ+ rights, and racial equality, mirroring and further cementing current trends in originalist constitutional doctrine. The four standard epistemic communities that supply “meaning” to human rights—in the international, comparative, transnational, and philosophical domains—are all rejected by originalism, just as those domains are themselves inimical to it.

This homegrown form of human rights argument is significant for human rights law and foreign policy, but so too is it significant for originalism itself. In propelling originalism into the uncompromisingly global domain of human rights, originalism’s proponents expose the nationalism and exceptionalism that are perhaps its most unsettling features. At the same time, originalism’s own malleability is highlighted in its adaptiveness to the modern administrative state and the promises of the postwar period.

 

New Article: Group Rights and Individual Minority Rights in Immigrant Societies, Then and Now

David Abraham, Group Rights and Individual Minority Rights in Immigrant Societies, Then and Now (2021). Abstract below.

The history of the past century or more suggests that “peoples,” however defined, may have their present and future collective needs realized in one of three ways. They may aspire to their own titular state, self-determination, where they predominate and act collectively; they may rely on the recognition and provision of reliable collective minority rights (with greater or lesser autonomy in a more or less territorially-defined multi-peopled space); or they may advocate for a regime of strong “liberal,” non-discriminatory individual rights for all in which (significantly weakened) collective identities are lodged in the private sphere. Not every option is equally available to all peoples; they face different hurdles as they themselves inevitably evolve over time from disparate starting points and with different strengths and weaknesses. Indigenous minorities, religious minorities, racial minorities, immigrant minorities, etc. will inevitably approach their situations differently from each other and in different concrete situations. Nonetheless, these three patterns –self-determination, guaranteed minority rights, and universalist individual rights—define the terrain on which struggles take place.

New Book: Latest Edition of ABA Legal Guide to Affordable Housing Development

The third edition of the ABA Legal Guide to Affordable Housing Development has been published.

This book is a comprehensive legal guide to the development of affordable housing for practitioners and housing advocates. It covers all aspects of the development process, including zoning and building codes, financing, monitoring and enforcement of regulations, preservation of affordable housing, and relocation requirements. It also includes brief chapters on the history of affordable housing and the future of affordable housing.

New Article: Reverse-Rhetorical Entrapment: Naming and Shaming as a Two-Way Street

Suzanne Katzenstein, Reverse-Rhetorical Entrapment: Naming and Shaming as a Two-Way Street, 46 Vanderbilt Journal of Transnational Law 1079 (2021). Abstract below.

"Naming and shaming," the process of exposing, publicizing, and condemning human rights abuses, is one of the most important and common strategies used by human rights advocates. In an international political system where power is typically defined in terms of military strength and market size, advocacy groups draw on a mixture of moral and legal means to pressure governments to improve their human rights behavior. In general, the mere act of naming and shaming can promote human rights norms by reinforcing the shared understanding that some types of government conduct are beyond the pale.'

Naming and shaming may also work more specifically through a dynamic of "rhetorical entrapment." Moral and legal censure pressure the targeted government to respond to criticisms about its conduct either by expressing public support for human rights norms or by signing human rights treaties. Over time, advocacy groups use such instrumental concessions to press the targeted government further to stop its abusive practices. Words that initially appear to be cheap gestures can, with the passing of time, have powerful effects.

New Article: There Is No Such Thing As A “Legal Name”

Austin A. Baker and J. Remy Green, There Is No Such Thing As A “Legal Name”, 53.1 Columbia Human Rights Law Review 129 (2021). Abstract below.

The phrase “legal name” appears everywhere. And wherever it appears, it seems to come with an assumption that it picks out one, clear such name for each person. So, do “legal” names as the phrase is commonly understood really exist? As far as federal and most state law is concerned, it turns out the answer is a clear no.

This article seeks to highlight the legal, moral, and philosophical wrongness of the notion that people have one uniquely identifying legal name. To do that, we survey the status of names in various legal domains, highlighting that legal consensus tends to be that there is no one “correct legal name” for individuals (if anything, people often have many “legal” names). We argue this common notion that every person has a single, clearly defined “legal” name is a kind of collective delusion we all seem to share (emerging somewhere in the late twentieth century), but is not grounded in legal or social reality. To address this harmful delusion, we present a series of ready-to-cite conclusions about the current state of the law and introduce a normative framework for how institutions and individuals ought to choose between people’s various legal names. Engaging with legal theory, feminist philosophy, and philosophy of language, we discuss the social function of names and argue that names enable people to communicate important social information about themselves—which can include their gender, religion, and familial relations. Thus, we conclude by arguing that individuals and legal institutions have a normative responsibility to respect peoples’ preferred legal names, thereby allowing them to authentically represent these facets of their social identities.

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.