Monday, November 21, 2022
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.
Thursday, November 17, 2022
By: R. Denisse Córdova Montes, Acting Associate Director & Mackenzie Steele, Student Intern, Human Rights Clinic, University of Miami School of Law
Hunger in the United States is not the result of a lack of enough food, but the result of laws and policies that prioritize profits over people and their human rights. During National Hunger and Homelessness Awareness Week, we urge the adoption of a human rights approach to addressing hunger in the United Staes.
Food insecurity, which is defined as a household-level economic and social condition of limited or uncertain access to adequate food, affects around 11% of U.S. households every year. In 2021, 3.8% of households, or 5.1 million households, had very low food security, meaning that their eating patterns were repeatedly disrupted resulting in a consistent state of hunger. Put more simply, food-insecure households are forced to make impossible decisions, such as choosing between paying for food and heat, electricity, rent, and transportation, with dire impacts on their health and overall wellbeing.
Notably, food insecurity has a disparate impact by race. 21.7% of Black households and about 17.2% of Latinx households experienced food insecurity in 2020, compared to only 7.1% of white households. One in four Indigenous persons experience food insecurity, compared to one in eight of Americans overall. Eight out of 10 essential Black, Indigenous, and People of Color (BIPOC) workers faced food insecurity during the ongoing COVID-19 pandemic, compared to only five in 10 white essential workers.
Racial disparities in food insecurity stem from the U.S.’s long history of racial discrimination. BIPOC communities have historically faced structural barriers to land ownership, which are intrinsically tied to their ability to produce food and feed themselves and their families. For example, the Homestead Act of 1862, which encouraged the development of the American West, had detrimental effects on tribal nations and their ability to exercise food sovereignty in their territories. Throughout the 20th century, USDA racist policies have disenfranchised Black farmers. In 1920, Black farmers owned over 16 million acres of land, yet, today, Black farmers only own two million acres of land.
Food insecurity also stems from corporate control of the food system. Bill and Melinda Gates are the largest private owners of farmland in the U.S. with some 269,000 acres across dozens of states. Today, four companies (Bayer, Corteva, ChemChina, and Limagrain) control more than 50% of the world’s seed market. The corporate capture of the food system has resulted in consistently low wages for food workers, natural resource extraction affecting Indigenous communities and low-scale food producers, and inadequate diets leading to negative health outcomes for BIPOC communities.
Moreover, the U.S.’s focus on federal nutrition assistance programs, such as the Supplemental Nutrition Assistance Program (SNAP), to address hunger has failed to adequately address the root causes of hunger. Outside of these programs, the U.S. focuses on a charity-based model, relying on donations and food banks to feed those in need, and in turn, reinforcing hierarchical structures and failing to address the root causes of the problems causing food insecurity.
This past summer, our Human Rights Clinic supported a nascent coalition of food justice advocates, legislators, and people with lived experiences of hunger, including West Virginia University’s Center for Resilient Communities, WhyHunger, Food for Maine’s Future, EDFU Foundation, Grow with the Flow, LLC, The Graduate Center of the City University of New York, the Institute for Agriculture and Trade Policy, and the Agroecology Research-Action Collective, in advocacy before the U.N. Committee to End Racial Discrimination (CERD), as it reviewed the U.S. for compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). This included submission of a shadow report on Racial Injustice and Violations of the Human Right to Food in the U.S., development of a factsheet, and discussions with CERD and U.S. delegation members.
The hard work paid off when CERD’s Concluding Observations addressed the right to food in a recommendation to the U.S. for the first time. CERD recommended that the U.S. “take all necessary measures to guarantee the right to adequate food, to strengthen its efforts to combat hunger and food insecurity, which disproportionally affects racial and ethnic minorities, and especially women and children, including by strengthening the institutional framework and adopting a comprehensive and rights-based national plan to end hunger. The Committee then called on the U.S. “to take effective measures against hunger in consultation with all relevant stakeholders, including members of the communities most affected by food insecurity.”
Following the release of CERD’s Concluding Observations, our Clinic supported a satellite event linked to the September White House Conference on Hunger, Nutrition, and Health focused on disseminating and discussing what the U.N. recommendations could mean for a national plan to end hunger. The discussions called for a transformation of the food system through the rebuilding of local food and farm economies and transformation of neighborhood institutions into community spaces that support the development of nourishing food systems. Our Human Rights Clinic will continue promoting the implementation of a rights-based approach to hunger through its support of a growing right to food movement in the U.S. that perceives the tackling of racism in the U.S. food system as a precondition for the realization of the right to food for all.
To learn more about this growing movement and be part of the discussion, join us in Miami on April 13 and 14 at the Food, Housing, and Racial Justice Symposium!
Monday, November 14, 2022
By: Tamar Ezer, Acting Director, & Taylor Moore, Student Fellow, Human Rights Clinic, University of Miami School of Law
As we mark the beginning of National Hunger and Homelessness Awareness Week, we urge a focus on real solutions to end hunger and homelessness.
In the United States, instead of addressing homelessness, many of our municipalities have sought to make it invisible by criminalizing activities people experiencing homelessness must engage in to stay alive, such as sleeping, sitting, or eating. According to a 2019 survey of 187 cities, 55% have laws prohibiting sitting and or lying down in public; 72% have laws prohibiting camping in public places; and 60% laws prohibiting loitering, loafing, and vagrancy.
Moreover, criminalization is on the rise, and laws that prohibit sleeping in public have increased by 50% since 2006! In the past two years, the City of Miami, where we live, has passed ordinances criminalizing encampments on public property and food sharing without a permit and at non-designated locations. Amidst the devastation of COVID, the City has thus resorted to "hunger as a weapon against the poor."
Criminalization is counterproductive and costly. It results in fines people cannot pay, jail time, and criminal records, trapping people in a cycle of poverty and perpetuating homelessness. In fact, diverting resources to law enforcement can cost two to three times more than it would to provide affordable housing. As one of our partners, David Peery, the Executive Director of the Miami Coalition to Advance Racial Equity (MCARE) describes, “Criminalization is an expensive way to make homelessness worse.”
Moreover, criminalization of homelessness has a disparate impact by race. Black Americans make up 40% of the U.S. homeless population, while only 13% of the overall population. Additionally, laws criminalizing life sustaining activities are predominantly enforced against people of color. As the U.N. Special Rapporteur on Racism has noted, “The enforcement of minor law enforcement violations . . . take a disproportionately high number of African American homeless persons to the criminal justice system.”
Current disparities in housing and homelessness stem from a long history of discrimination, including redlining when the U.S. Federal Housing Administration refused to insure mortgages in or near Black neighborhoods. Today, while almost 75% of white families own their homes, less than half of Black families own their homes. As renters, Black families are at greater risk of housing instability and homelessness. Additionally, Black and Hispanic renters are twice as likely to be evicted as white renters. Barriers to housing based on arrest records further have a disparate impact by race.
Our Human Rights Clinic had the opportunity to support a coalition, including MCARE, the National Homelessness Law Center (NHLC), the National Indigenous Women’s Resource Center (NIWRC), Partners for Dignity and Rights, and the South Florida Community Development Coalition, in advocacy before the U.N. Committee for the Elimination of Racial Discrimination (CERD), as it reviewed the U.S. for compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). This included submission of a shadow report on Racial Injustice in Housing and Homelessness, development of a factsheet, and discussions with CERD and U.S. delegation members.
This summer, CERD released its Concluding Observations and noted with concern “the increasing number of state and local laws that criminalize homelessness and . . . the disproportionately high number of persons belonging to racial and ethnic minorities affected by homelessness.” The Committee then called on the U.S. government to “abolish laws and policies that criminalize homelessness,” redirect “funding from criminal justice responses to adequate housing and shelter programs, in particular for persons belonging to racial and ethnic minorities most affected by homelessness,” and “affirmatively further fair housing and protection against discriminatory effects.”
Moreover, CERD addressed the right to food in a recommendation to the U.S. for the first time and called for the adoption of a “rights-based national plan to end hunger in consultation with members of the communities most affected by hunger.”
Now is the time to focus on domestic implementation of these recommendations. Take the opportunity this week to get involved in your community and help address hunger and homelessness. Our Human Rights Clinic will be participating in NHLC’s Right to Housing Forum and sharing preliminary findings from a Report Card, assessing U.S. performance on the right to housing. Let’s make the U.S a place where everyone can access adequate housing and feed themselves with dignity.
Thursday, September 22, 2022
The U.S. Mission to International Organizations in Geneva has put together a website and released a video recording of the civil society consultation that took place on August 10, 2022, the day before the formal presentation of the U.S. report to CERD. The Biden-Harris Administration has also shared a supplemental report it submitted to the UN Committee on the Elimination of Racial Discrimination after the U.S. review.
This display of transparency comes in response to a letter signed by 48 representatives of civil society organizations and Indigenous Peoples to the Biden Harris Administration requesting such measures as to (1) ensure that all relevant parties – namely, government officials who will be responsible for implementation and Indigenous Peoples’ organizations who were unable to participate - may see what transpired, (2) allow for greater public education, and (3) exemplify the administration’s transparent engagement with these organizations.
The supplemental report contains statements from the State of California’s Office of the Attorney General, the City of Atlanta, the Executive Office of the President, and several other U.S. government agencies including the Department of Health and Human Services and the Department of the Interior, detailing their respective plans for implementing the CERD recommendations.
Tuesday, September 13, 2022
United Nations Condemns U.S. for Misuse of Chemical Agents, Solitary Confinement in Jails and Prisons in Response to Reports of St. Louis City Justice Center Jail Conditions
By Lauren E. Bartlett, HRAH Blog Editor, and Anezka Krobot, 2L at St. Louis University School of Law
On Tuesday, August 30, 2022, the UN Committee on the Elimination of Racial Discrimination published its Concluding Observations and Recommendations from its August 10-12 review of the United States. The Committee, which is made up of 18 independent human rights experts drawn from around the world, expressed concerns and gave recommendations for how the United States could better implement the International Convention on the Elimination of All Forms of Racial Discrimination.
In its findings, the Committee condemned the misuse of chemical agents, like pepper spray, in U.S. jails and prisons, in addition to the use of solitary confinement. The Committee also recommended that the U.S impose “strict restrictions on the use of solitary confinement and the use of chemical agents as pepper spray and ensuring that its use does not have a disproportionate impact on racial and ethnic minorities.”
These statements follow submissions of reports of inhumane conditions at the St. Louis City Justice Center jail (CJC), including statements from people who were currently and formerly incarcerated at CJC, advocacy organizations and a shadow report submitted in July 2022 by the MacArthur Justice Center, Saint Louis University School of Law Human Rights at Home Litigation Clinic, ArchCity Defenders and Rights Behind Bars. The shadow report highlights the tortuous punishment and inhumane confinement conditions that are used on a daily basis against those detained in the City of St. Louis, 95% of whom are Black.
A full press statement regarding the Committee’s findings can be found here.
Thursday, August 18, 2022
By Jennifer Wakefield, Program on Human Rights and the Global Economy at Northeastern University School of Law
Last week, I had the privilege of traveling to Geneva, Switzerland for the Committee on the Elimination of Racial Discrimination (CERD)’s review of the United States for its (non)compliance with the International Convention on the Elimination of Racial Discrimination (ICERD). Together with Martha Davis, Co-Director of the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University School of Law, I attended briefings with CERD members, coordinated with representatives from civil society organizations, and urged members of the US delegation to listen to our suggestions before the official review at the end of the week. The six days that we spent at the United Nations were transformative, illuminating, and empowering, revealing the harrowing realities that people of color experience daily and the inescapable urgency to repair a system designed to create and perpetuate racial injustices.
On Tuesday, members of civil society organizations from across the country filled a conference room in the Palais Wilson to deliver statements to members of the CERD to create a more accurate picture of what is going on in the United States. Due to time constraints, not everyone was able use the microphone, but the sheer number of people in that room spoke volumes. The first hour of the briefing was dedicated to advocating for indigenous rights, with powerful presentations from members of various tribes on environmental racism, reproductive justice, and education equity for indigenous communities. For the remaining two hours, the CERD heard statements on the criminal legal system, voting rights, the child welfare system, gun violence, migrants’ rights, healthcare and reproductive justice, housing and homelessness, reparations, the access-to-justice crisis, and the need for a national human rights institution – and how current policies and practices institutionalized by the federal government in these areas disproportionately impact people of color. Although each person only had two minutes, the short speeches touched on centuries of pain and oppression that the United States created and continues to cause for underserved communities.
Wednesday’s meeting at the U.S. Mission began as a formal session for the U.S. delegation to answer previously submitted questions from civil society organizations. After going through metal detectors and leaving all electronics with security guards, we sat in rows facing a panel of delegates from the Executive branch. At the beginning of the meeting, the moderator, Ambassador Michèle Taylor, U.S. Permanent Representative to the UN Human Rights Council, said they could not field any live questions given the number of written inquiries they received. After the questions were read, the delegates gave their pre-typed, rehearsed answers approved by the agencies in which they worked. But directly impacted people heard the emptiness in these stoic and robotic responses. Disregarding the Ambassador, one by one, about a dozen people took turns standing up to share their personal stories of how the US government has failed them and their communities. The emotion and energy in the room was palpable as the people offering first-hand accounts pleaded and demanded for the delegates to make change. The tears were contagious. Almost every member of the delegation was crying as the undeniable truths filled the air. In that moment, the delegation was confronted with two driving forces – power they yield as federal officials and humanity underlying this experience. There was no script they could read from to hide, no new government initiative they could offer as consolation. Defense and deflection were not an option. Their backs were against the wall, confronted with the consequences of their (in)actions. The bravery and strength of these individuals to be so candid and transparent about their lived experiences as people of color in a country where the odds stacked against them was awe-inspiring. Witnessing these barriers break down was a moment in time that I will never be able to capture in words.
The official review started on Thursday afternoon in the Palais de Nations. After opening statements made by the CERD and the delegation, Faith Dikeledi Pansy Tlakula, Committee Expert and Country Rapporteur, began pressing the delegation on their lack of progress eliminating racial discrimination with questions informed by civil society submissions and conversations. In these two days, other Committee members followed suit, asking for answers and explanations for inexcusable racism that persists in the United States. The delegation gave performative responses, lacking any commitment to concrete actionable measures the CERD suggested. Ironically, the delegation also ran out of time to answer.
The CERD will release their Concluding Observations on August 30th, expressing their concerns and providing recommendations. Through speaking with civil society members and the CERD’s review, the U.S. delegation heard about all the work that needs to be done at last week’s review. The question now is whether they were listening. The federal government knows better. It has been, and continues to be, its responsibility to do better.
Tuesday, August 16, 2022
Traveling to Geneva, Switzerland, is beyond imagination for many American citizens. Yet for those who were able to be last week during the UN’s periodic review of U.S. compliance with its obligations under the Convention on the Elimination of All Forms of Racism (CERD), Geneva was a place for imagining an America where human rights and racial justice are firmly enshrined and respected.
Almost seventy civil society representatives – not just advocates, but many who are directly affected by human rights violations – came from all corners of the U.S.: from Alaska to Wyoming, from Arizona to Louisiana, from Albany to Chicago. The U.S. government sent a sizeable delegation numbering over twenty, that included appointees at the Ambassador and Assistant Secretary levels as well as many Deputy Assistant Secretaries from an alphabet soup of agencies (DOI, HHS, DHS, DOE, DOL, State, to name a few). As in recent years, the U.S. delegation also included local government representatives, this time the Mayor of Atlanta and representatives of the California Attorney General’s office.
A lot has happened in the eight years since the last U.S. CERD review in 2014, and it was a diminished United States that appeared before the CERD Committee. News reports of the FBI raid on Mar-a-Lago hung in the air, a reminder of the lasting damage done by the prior Administration. That damage is not only domestic but also international. Several members of U.S. civil society were in the room when representatives of the Benin government, also being reviewed under CERD last week, responded to Committee queries about their government by noting that at least they had not had an attempted coup!
Yet Geneva served its purpose of bringing U.S. civil society and government to neutral ground to air serious concerns, under the moderating guidance of CERD Committee experts from such far-flung places as South Africa, Mauritania, Qatar, and Germany. The American expert on the Committee, Gay McDougall, was present for the exchanges, but recused from the Committee’s deliberations.
The most remarkable exchange occurred outside of the UN hearing rooms, at an event at the U.S. Mission. What the government delegation had planned as an orderly, Question-and-Answer session with pre-submitted questions, instead turned into a frank and emotional exchange between those most affected by human rights violations – indigenous peoples denied their autonomy and dignity, those experiencing the legacy of slavery and the reality of ongoing racism – and the government representatives, many of whom identified with these same communities. For those in the room, it seemed like a watershed moment of speaking truth to power.
At the CERD Committee’s review the next day, some of that spirit carried forward, but for the most part, the review returned to business as usual. The Committee asked pointed questions about issues such as reparations, indigenous rights, abortion, and human rights abuses at the border, and the U.S. delegation slow-talked through their pre-prepared answers.
Of course, the U.S.’s complicated federal system sometimes ties the hands of the Executive. On abortion, for example, the Biden administration defended the fundamental right in court, and has made efforts to use what federal power is available to maintain abortion access in some form. The current Supreme Court majority has shown little interest in human rights law, and the states that have banned abortion since the Supreme Court’s Dobbs decision feel no compunction about defying human rights norms. And in retrospect, members of civil society could have done more to protect the federal right while it was standing. Yet in the CERD forum, it is the Biden Administration – not the Courts, Congress, the states, or civil society -- that must respond to Committee criticism about the U.S. backsliding.
While the Administration’s hands are tied in some areas, there was hope that the CERD review could be the occasion for a special announcement or a new initiative, such as a National Plan of Action on racial justice. Instead, the Administration often responded to CERD Committee questions with anecdotes of cases that showed positive outcomes for individuals, but did not address system-wide issues that plague areas such as education, labor, health, immigration, indigenous rights, and so on.
In the end, then, Geneva is a place for imagining, a place where civil society and government representatives are all far from home and off-balance, and are perhaps therefore able to hear more completely and speak more openly. Those moments of clarity are valuable. But what ultimately matters is what happens when everyone involved returns to face the realities at home. Will the CERD review serve as an organizing tool, or a basis for following up with government representatives, including the mayor of Atlanta and the California Attorney General? Will the U.S. Government’s listening lead to action? If the impact of the CERD review remains in Geneva, it will have been a wasted effort on all sides.
Monday, July 18, 2022
Event 7/19-7/21: Using global human rights to strengthen anti-racism organizing and resist ongoing retrenchment of democracy and human rights
The U.S. Human Rights Cities Alliance invites you to its 2022 Convening (hybrid): “Using global human rights to strengthen anti-racism organizing and resist ongoing retrenchment of democracy and human rights” on July 19-21, 2022, in Washington DC/ hybrid.
Co-Sponsor & Host: Thurgood Marshall Civil Rights Center, Howard University School of Law, Washington DC
Leaders of a national network of human rights city organizers will convene in Washington DC July 19-21, 2022 to meet with U.S. officials as part of the current review of U.S. compliance with its obligations under the Convention on the Elimination of all forms of Racial Discrimination (CERD). We will hear from advocates and government officials preparing for the August 10-11 meeting of the UN CERD Committee to assess the U.S. periodic report on compliance with the International Convention on the Elimination of All Forms of Racial Discrimination and make recommendations for change. Community advocates will discuss how we can make better use of the UN CERD reviews and other UN processes to advocate for racial justice and the transformation of structural racism in our cities and communities and will share the Civil Society Shadow Reports submitted by various cities as part of this 2022 review. Participants will hear from organizations in Europe, such as the Fundamental Rights Agency and the European Human Rights Cities Network, where the human rights city movement has been flourishing in recent years. We will discuss ways to connect local struggles over racial and environmental justice, reproductive rights, and related concerns with various UN mechanisms such as the Sustainable Development Goals (SDGs) and Universal Periodic Review process (UPR).
Wednesday, June 23, 2021
By Mary Hansel, UC Irvine School of Law
As this blog has highlighted, the U.S. recently submitted its country report to the U.N. Committee on the Elimination of Racial Discrimination (CERD). Notably, the report contains scattered references to county and city governments and their activities related to racial justice. The report mentions the role of these governments in addressing issues such as hate crimes, maternal mortality, environmental justice and police use of force—indeed, local governments are often on the front lines of such issues. Yet there is no meaningful assessment of their human rights records, nor any indication that they submitted information or analysis for the current reporting cycle. This absence is not surprising given that local governments in the U.S. have rarely engaged with treaty body reviews.
Several international and domestic sources, however, lend support for the idea that local governments should be active participants in these reviews. The texts of the core human rights treaties ratified by the U.S., including the International Convention on the Elimination of All Forms of Racial Discrimination, make clear that each treaty’s obligations apply throughout all levels of government. In their Concluding Observations, treaty bodies have underscored the pervasive reach of these obligations; for example, CERD has emphasized that the U.S. “is bound to apply the Convention throughout its territory and to ensure its effective application at all levels, federal, state, and local.” Meanwhile, the so-called “federalism understanding,” which the U.S. has attached to treaties upon ratification, demonstrates Congress’ intent to carve out distinct roles for local governments in treaty implementation.
Additionally, in 2019, the U.N. High Commissioner for Human Rights issued a report on the importance of local governments in protecting and promoting human rights. The report concludes that “more sustained engagement by local governments is required, particularly with the United Nations human rights protection system.” To this end, the report explicitly calls for local governments to be “more engaged in both State preparations for and State delegations attending the sessions of . . . the treaty bodies” and to supply information “for inclusion in national reports submitted to the human rights mechanisms.”
Moreover, at least one U.S. state has passed legislation laying the foundation for local reporting to treaty bodies. In California, the legislature passed a 2010 Concurrent Resolution urging local governments within the state to report on their human rights efforts. The Resolution acknowledges that the ratified treaties require reports from all levels of government and, thus, treaty bodies “expect to receive information at the local level in all future United States reports.” Accordingly, the Resolution directs the California Attorney General to distribute templates for use by counties and cities in preparing their reports.
These sources provide a basis for local governments to step into their roles of front-line human rights actors and actively participate in treaty body reviews (as well as the Universal Periodic Review). Their participation could yield substantial benefits, including: giving treaty bodies a more complete understanding of the human rights landscape across jurisdictions, promoting human rights transparency and accountability within local governments and helping to foster a robust and widespread human rights culture in the U.S. In light of such benefits, human rights advocates might consider exploring ways in which they can encourage local governments to engage with treaty body reviews and support them in doing so.
Monday, June 7, 2021
On Thursday June 2, 2021, the United States submitted a periodic report to the Committee on the Elimination of Racial Discrimination. This is the first treaty report that the United States has submitted since 2016. The 2021 U.S. report to the Committee on the Elimination of Racial Discrimination states that it is responding to the Committee’s Request for the tenth, eleventh, and twelfth periodic reports of the United States under article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination.
This blog welcomes your thoughts and analyses of the new report. Please contact Editor Lauren Bartlett if you would like to submit a post.
Sunday, June 26, 2016
The U.S. Supreme Court upheld the University of Texas’ admission program that considers race as one of seven factors in the second part of its undergraduate admissions’ system. This blog follows one covering the majority opinion. That blog is available here.
The majority opinion by Justice Kennedy, which was joined by Justices Ginsburg, Breyer and Sotomayor did not raise the applicable treaty and international law that was raised in the amicus brief of Human Rights Advocates, the Poverty & Race Research Action Council, the Advocates for Human Rights, the University of Minnesota Human Rights Center, and the US Human Rights Network. This blog will address how the treaty and international law is applicable to the case and how it related to the majority opinion.
As Amici noted, international law and opinion have informed the law of the United States since the adoption of the Declaration of Independence. The Founders were greatly influenced by international legal and social thought, and throughout the history of the United States, courts have referred to international standards when considering the constitutionality of certain practices.
In this case, holistic consideration of race in university admission decisions is consistent with the United States’ treaty obligations as well as international practice, which makes the policy all the more compelling. Indeed, two treaty review bodies (the HRC and CERD) urged the United States to undertake special and remedial measures to eradicate de facto discrimination in schools. Other independent international law experts have counseled the United States to do the same. The European Court of Justice and the national courts of other countries have also upheld affirmative action measures in relation to addressing racial disparities in higher education. International treaties and practice support the University of Texas’s approach to admissions and the international obligations should be considered when assessing the process' validity under the Fourteenth Amendment.
The United States (U.S.) ratified the Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1994. CERD requires State Parties to take affirmative steps to achieve the goals of eliminating racial discrimination. The special measures taken for the purpose of securing advancement of racial or ethnic groups are not deemed racial discrimination under Article 1(4) and indeed are mandated under Article 2(2). Under General Recommendation No. 32, the laws or policies to address the situation of disfavored groups should be used to address both de jure and de facto discrimination. In other words Parties are required to address not only intentional discrimination but discriminatory effects as well. (¶¶ 14 and 22.)
The CERD Committee has raised the importance of special measures in its review of countries’ compliance with the treaty, particularly in the field of education. The U.S.’ policies on education have been the subject of concern for the Committee. While it cited Grutter as a positive step in addressing inequality in education in its 2007 review of the United States 6th periodic report, in its Concluding Observations in 2008, the Committee observed that the U. S. had not done enough to enact special measures to eradicate de facto discrimination in schools. Paragraph 17 of the Concluding Observations specifically framed this issue in the context of the “strict scrutiny” standards under the United States Constitution. In its Concluding Observations of the U.S.’ 7th-9th reports issued in 2014, the Committee reiterated its previous recommendations that the U.S. adopt and strengthen the use of special measures.
The U.S. ratified the International Covenant on Civil and Political Rights (ICCPR) in 1992. In its 2006 review of the United States, the Human Rights Committee that oversees compliance with the ICCPR expressed concern over de facto racial discrimination in its public schools and reminded the U.S. of its obligations under articles 2 and 26 to guarantee effective protection against practices with discriminatory effects. In its report to the Human Rights Committee in 2011, the U.S. State Department acknowledged that special measures in higher education serve to uphold the “equal and inalienable rights” in the ICCPR.
The University of Texas argued throughout both Fisher cases that it seeks to admit a “critical mass” of minority students to its undergraduate programs through a holistic, individualized admissions process. After conducting studies to assess whether the University was obtaining the educational benefits of diversity that result from a critical mass of underrepresented minority students, it implemented an admission program that would consider race as one of the many factors in making admissions decisions. Amici argued that this program complied with CERD’s requirements that special measures be “appropriate to the situation to be remedied, be legitimate … [and] respect the principles of fairness and proportionality” as defined in General Recommendation No. 32, ¶ 16.
By upholding the University of Texas’ admissions program, the U.S. Supreme Court’s decision is in compliance with the U.S.’ obligations under both treaties as well as the practice of other jurisdictions such as the European Court of Justice and legal decisions and laws in countries such as Brazil, South Africa, India, Canada, New Zealand, and Australia. While the focus of its decisions on this topic have been on achieving diversity, and not necessarily achieving equality as required by the treaties, Fisher helps to promote the U.S.’ obligations under two treaties to which it is a party.
Thursday, May 12, 2016
by Margaret Drew
This post follows up both Risa Kaufman's earlier post on UN Special Procedures and the U.S. visit and Martha Davis' post on two writings that take a critical look at the use of Special Procedures. Earlier this week, I checked in with Rebecca Landy of the US Human Rights Network (USHRN). Rebecca is the organization's Human Rights Outreach and Advocacy Manager. The following reports our conversation:
Rebecca, would you tell us a bit about the UN process of reviewing US compliance and progress with the various UN conventions?
While most folks in the United States are focused on our presidential election process – there is another important process for our democracy that will happen on a similar cycle – the reviews of the US’ human rights records on the three core UN human rights treaties our government has ratified.
The most recent rounds of those periodic reviews under the UN International Covenant on Civil and Political Rights (ICCPR), Convention on the Elimination of All Forms of Racial Discrimination (CERD), and Convention Against Torture and Other Cruel Inhuman Degrading Treatment or Punishment (CAT) took place in 2014-2015 with each treaty body Committee releasing a set of Concluding Observations (or Recommendations) for the U.S. government.
But in addition to those periodic reviews, there are also one year follow-up reviews to the Concluding Observations that take place for each of these treaty bodies. Two of those for the U.S. happen to be occurring this week at the UN in Geneva. The UN Office of the High Commissioner for Human Rights website explains that the purpose of these follow-up reviews is “To monitor more closely the implementation of some of their recommendations that they consider urgent, priority or protective, and implementable within one or two years.”
When will the reviews happen and what is their likely scope?
The consideration of the U.S. CAT follow-up report took place on Monday and the CERD follow-up is happening this Friday. Unfortunately neither of these reviews was live webcast or in public sessions, so we will have to wait for the official reports to be released to learn more. That said, we do have a general sense of what those reports will cover based on the designated issues for follow-up. For CAT there are five follow-up issues and for CERD there are three issues for follow-up.
What are the specific issues?
For CAT, the issues are 1. Inquiries into allegations of torture overseas; 2. Guantanamo Bay detention facilities; 3. Interrogation techniques; 4. Excessive use of force and police brutality; and 5. Passage of the ordinance entitled Reparations for the Chicago Police Torture Survivors.
For CERD, the issues are 1. (a) to investigate and prosecute excessive use of force and (b) prevent the excessive use of force; 2. Immigrants; 3. Guantanamo Bay- specifically for the US to provide updated information for closing within one year.
Is there any significance in the identification of these particular issues?
Of note is that there is overlap in the issues these two treaty bodies considered “urgent, priority or protective, and implementable.” That designation means that we can exert extra pressure on the U.S. government to hold them accountable to these recommendations. Both include follow-up recommendations on excessive use of force and Guantanamo Bay (an issue also in the ICCPR follow-up last summer). While we wait to learn whether the UN experts determine if the U.S. has made progress on these issues - you can read the CAT civil society follow-up shadow reports and government report here and the CERD civil society follow-up shadow reports and government report here.
Do you have any expectations for the substance of the reports?
According to the Guardian, the total number of people killed by U.S. police officers in 2015 shows that the rate of death for young black men was five times higher than white men of the same age and the situation for immigrant communities being targeted by police is no better. Also,President Obama has yet to keep his promise of closing Guantánamo, including ending indefinite detention without trial. Given that, the follow-up reports by both Committees will not be encouraging. If so, we can take these reports to help push the government to action and advance a people-centered human rights movement at home. And we can be sure that any progress that is recognized in these reports happened because civil society, including grassroots communities, kept organizing!
What significance does the election have on this process and the substantive issues reviewed?
With the Obama Administration soon coming to an end, U.S. advocates hope the human rights legacy for this administration includes progress on these issue areas as well as the establishment of a long-term infrastructure and institutionalization to improve and ensure domestic implementation of international human rights treaties and recommendations.
Editors' notes: You may join USHRN’s CAT and CERD Listervs to keep posted and receive the reports once they become available. Also, USHRN organized many of the shadow reports submitted as part of the reviews. Though not covering the substance of the reports, the press release from the UN CAT session noted the impressive number of U.S. civil society shadow reports “the Committee had received 22 alternative reports for follow-up, 12 of which related to the follow-up of the United States” – showing a level of engagement by U.S. civil society that was coordinated and powerful.
Sunday, April 17, 2016
While supporting transgender advocates working to repeal North Carolina laws discriminating against sexually diverse individuals, I reflect on the public support that corporations have experienced since refusing to do business in the offending (and offensive) state. Similar support was given by major corporations in Georgia. This leads to a chronic and unanswered question: why do the same entities deny support to women and racial minorities in their discrimination issues?
Might it be that discrimination against women and racial minorities is so pervasive that to object might disqualify the businesses from operating in all U.S. jurisdictions? I don't think that the answer is that simple. Most of the corporations supporting the transgender community have, and continue to, discriminate against women and racial minorities.
In 2013, Bank of America agreed to pay $39 million dollars to women who experienced discrimination in its related corporation, Merrill Lynch. Immediately before that settlement, the Bank paid $160 million to black brokers. In 2012, 16 racially diverse workers brought a discrimination claim against Coca Cola claiming aggressive and untempered discrimination in two of the company's New York firms. These claims came well after Coke agreed to settle a race discrimination suit in 2000 for $192.5 million dollars. Similar lawsuits are settled every year, often against major corporations.
An easy answer might be that corporations that have paid millions to settle discrimination suits are trying to stay ahead of similar claims based on sexual identity. A more cynical explanation could be that the transgender corporate workforce is perceived as being incredibly small and claims more easily managed. If corporations were to acknowledge widespread wage inequities, settlements would be incredibly large. And with equality would come at least a modest power shift.
Corporate support of CERD and CEDAW would be a good start in ending workplace discrimination. When corporations decide to stop tolerating hateful and discriminatory language, and decide to pay equal wages and provide respectful working environments, corporations might discover that having a satisfied workforce is indeed good for profits.
Wednesday, March 16, 2016
Editors' Note: Following up on yesterday's post, Risa Kaufman discusses the applicable human rights law as well as the procedural posture of JEFM v. Lynch
A federal immigration judge may see no problem with requiring a three year old to represent herself against the government's efforts to deport her. But international human rights law and many jurisdictions in Europe and elsewhere in the world recognize the stark injustice in such a scenario. An amicus brief filed this week by Human Rights Watch in JEFM v. Lynch asks the 9th Circuit to do the same.
The plaintiff children in JEFM, many of whom are fleeing violence and other dangerous situations in their Central American home countries, have brought suit against the United States, claiming that the lack of a right to appointed counsel for indigent children in immigration proceedings violates the Constitution’s due process protections, as well as the federal Immigration and Nationality Act. Last year, ruling on jurisdictional grounds, the federal district court denied the government’s motion to dismiss the constitutional claims, and granted its motion to dismiss the statutory claims.
Both sides have appealed the district court’s order to the 9th Circuit Court of Appeals.
The Human Rights Watch brief draws on international human rights law and foreign law to underscore the importance of preserving the federal district court as a forum for the plaintiff children’s claims. The brief was authored by Columbia Law School’s Human Rights Institute and the law firm of Covington & Burling, LLP, with the assistance of students in the Columbia Law School Human Rights Clinic.
Numerous international human rights treaties recognize the necessity of appointed counsel for ensuring due process and equal justice for migrant children. The Convention on the Rights of the Child, the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment and Punishment, the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Racial Discrimination all provide support for the right to appointed legal representation for indigent children in immigration proceedings. Inter-American Court of Human Rights has likewise made clear that the right to appointed counsel for children in immigration proceedings is a key component of due process under the American Convention and the American Declaration.
Human rights experts have expressed particular concern over the lack of a right to appointed counsel for children in U.S. immigration proceedings. In 2014, during its review of U.S. compliance with the CAT, the Committee Against Torture specifically recommended that the U.S. guarantee access to counsel for minors seeking asylum in the U.S. Likewise, the Committee on the Elimination of All Forms of Racial Discrimination recommended that the U.S. “guarantee access to legal representation in all immigration-related matters.” And last year, after visiting the U.S. southern border to monitor the human rights situation of unaccompanied minors and families, the Inter-American Commission on Human Rights called on the U.S. to provide free legal aid for children in immigration proceedings.
Foreign law also lends support for the right to appointed counsel for indigent children in immigration proceedings. The European Court of Human Rights has increasingly recognized the right to appointed counsel when necessary to prevent the inequality of arms. And the European Parliament recently called on member states to provide free legal representatives to unaccompanied minors in immigration proceedings.
Last year, over 28,000 unaccompanied children from El Salvador, Guatemala, and Honduras crossed into the United States at the southwest boarder. A study by the UN High Commissioner for Refugees found that many children migrating from these Central American countries reported that they were escaping violence and persecution and would face harm if forced to return home.
There is growing recognition of the injustice in forcing these children to fend for themselves in complicated and high-stakes immigration court proceedings. As articulated in the Human Rights Watch amicus brief filed this week, international human rights and foreign law lend strong support to this understanding, and compels a re-evaluation of access to justice in the United States.
Wednesday, December 9, 2015
by Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute, and lecturer-in-law, Columbia Law School
Is human rights law relevant to the Court’s consideration of UT Austin’s admissions selection policy? In Fisher v. University of Texas at Austin, the Court has the opportunity to reaffirm the importance of ensuring diversity and inclusion in higher education. Such a decision would be supported by international law: equal opportunity college admissions policies help the U.S. to fulfill its human rights commitments.
At issue in Fisher v. University of Texas at Austin is the university’s admissions policy, which considers race among many other factors as a means of ensuring a diverse and academically qualified student body. UT Austin’s admissions policy has two components. Most students (75%) are admitted through the school’s “Top Ten Percent plan,” which guarantees admission for Texas students in the top ten percent of their high school class. The school fills the remaining slots through a holistic multi-factor review of each applicant, considering over a dozen factors, one of which is race.
This is the second time the Court has heard arguments in Fisher. The case has a well-told procedural backstory.
Directly at issue in Fisher is UT Austin’s admission policy. But the ruling could have wider implications on the ability of colleges and universities to maintain policies that seek to ensure equal opportunity and racial diversity. As the New York Times noted last week, recent activism on college campuses has amplified the conversation around race and higher education, and the stakes in Fisher feel particularly high.
What does human rights add to the mix? As noted by Human Rights Advocates and other organizations joining an international human rights amicus brief filed in Fisher, UT Austin’s admissions plan helps the United States meet its human rights commitments. And it is in line with international practice. The brief was authored by Connie de la Vega at University of San Francisco School of Law, along with Neil Popović at Sheppard Mullin.
As the human rights amicus brief notes, two of the core human rights treaties ratified by the United States support the use of holistic considerations of race in higher education admissions decisions. In particular, the Convention on the Elimination of all Forms of Racial Discrimination (CERD), ratified by the U.S. in 1994, calls on countries to take affirmative steps to eliminate and prevent racially discriminatory practices. Article 2(2) of the Convention calls on countries to take “special and concrete measures” to guarantee and advance equality. The CERD Committee has elaborated on the meaning and scope of “special measures,” and in reviewing countries’ compliance with CERD, the Committee has emphasized their particular importance in the field of education. During the most recent review of U.S. compliance with the CERD, in 2014, the CERD Committee noted concern with policies and practices within the United States that have been adopted against the use of special measures in higher education, and recommended that the U.S. instead adopt and strengthen the use of such measures to eliminate persistent disparities.
The International Covenant on Civil and Political Rights (ICCPR), too, supports the use of holistic considerations of race in higher education admissions policies. In particular, Articles 2 and 26 of the ICCPR prohibit discrimination and guarantee effective protection against practices with discriminatory effects. The U.S. ratified the ICCPR in 1992. When it was reviewed by the U.N. Human Rights Committee in 2011, the U.S. noted that educational policies aimed at achieving racial diversity and avoiding racial isolation help the U.S. to implement the Covenant’s equality guarantees.
If any of the Justices do, in fact, consider international law in assessing the constitutionality of holistic considerations of race in college admissions, it would not be first time. In 2003, in Grutter v. Bollinger, the Court considered the University of Michigan Law School’s admissions policy and affirmed the school’s compelling interest in ensuring the educational benefits of diversity in higher education, emphasizing the advantages of diversity for all students and for the country as a whole. In a concurring opinion, Justice Ginsburg noted that the Court’s decision was consistent with international understanding of affirmative action, citing to CERD as well as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). She similarly cited to CERD and CEDAW in her dissenting opinion that day in Gratz v. Bollinger.
Are Justices likely to cite directly to international law this time around? Perhaps not. Nevertheless, human rights can provide important context for their consideration of the case.
Sixty-seven amicus briefs were filed in Fisher in support of the university. These briefs note the benefits of diversity in higher education, the importance of expanding opportunity for students from all backgrounds, and the importance of preventing racial isolation in colleges and universities. Likewise, amici, including Fortune 100 companies and retired military and national defense leaders, urge the Court to consider ways in which a diverse university and workforce are in the national interest, and critical to America’s success. As the human rights amici note, ensuring equal opportunity in college admissions serves the important (and entirely consistent) function of helping to bring the United States in line with its human rights commitments, as well.
Tuesday, January 27, 2015
by JoAnn Kamuf Ward, Human Rights Institute, Columbia Law School
The U.S. prides itself on free and fair elections. Indeed, the Constitution and federal law guarantee equality in voting: the “one person, one vote” standard was enunciated by the Supreme Court in the 1960s as a means to address vastly skewed voting power resulting from districts with unequal populations.
This simple phrase – “one person, one vote” – belies the complex nature of elections in the United States. In order to foster the idea that each person’s vote counts in our at large system, federal elections districts drawn “as mathematically equal as possible,” while state and local districts are supposed to be drawn through an “honest and good faith effort” to ensure equal populations. (The ACLU has explained these standards and the underlying case law here). But, in the majority of states, districting falls to legislators (in others, districting commissions have authority to draw districts). That means in most jurisdictions, those who are in charge of districting are individuals with a vested interest in maintaining power. This system is one rife with potential for abuse.
Indeed, it has led to rampant gerrymandering. In general, gerrymandering is the act of altering political boundaries with the intent to impact election outcomes. Perhaps the most well-known form of gerrymandering is racial. Indeed, the Voting Rights Act was developed to prevent the dilution of minority votes – yet its protections are unfortunately being chipped away. Another variation is partisan gerrymandering, i.e., the “practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength.” This slicing and dicing of districts to protect a particular party or favor a particular candidate is another way that districting curtails truly free and fair elections.
While much seems at stake, the Supreme Court has been reticent to step in to curtail these practices. Indeed, last year’s decision in Shelby v. Holder struck down some protections of the Voting Rights Act that address racially discriminatory gerrymandering. In the arena of partisan gerrymandering, the Supreme Court more or less thrown up its hands over a decade ago. In 2004, a plurality decision by Justice Scalia opined that there is “no judicially discernible and manageable standards” to adjudicate claims of partisan gerrymandering. This means that presently there is little recourse for those whose votes, and voices, are marginalized by partisan line drawing.
So, what can be done? Advocates are taking these concerns to the international human rights community to put pressure on the United States to ensure elections are truly representative. The relevant human rights protections are strongly worded. The Universal Declaration of Human Rights enshrines the right to “take part in the government of his country, directly or through freely chosen representatives” and guarantees a fundamental cornerstone of democracy, that “[t]he will of the people shall be the basis of the authority of government; [as] expressed in periodic and genuine elections.” The International Covenant on Civil and Political Rights echoes these protections and the Race Convention further guarantees the right to vote.
In its recent review of the United States’ human rights record, the CERD Committee expressed concern about the “obstacles faced by individuals belonging to racial and ethnic minorities and indigenous peoples to effectively exercise their right to vote, due inter alia to restrictive voter identification laws, district gerrymandering, and state-level felon disenfranchisement laws.” The Committee called for federal legislation to address discriminatory impact of voting regulations, voting rights for felons and DC residents and efforts to ensure indigenous peoples can effectively exercise the vote.
There are ongoing legislative efforts to address some of these concerns, including passage of the Voting Rights Amendment Act of 2014. Placing districting power in the hands of independent bodies rather than legislators is another proposal reform. Another recommendation to address partisan gerrymandering is removing discretion altogether and utilizing computer models to generate district maps.
Yet, it is unclear whether current legislative reforms or judicial intervention can truly foster compliance with human rights norms within our current winner take all election system (also known as “first past the post”). More drastic steps may be necessary to ensure the will of the people is the basis of the government and representatives are freely chosen.
Alternatives to “winner take all” models do exist. They are employed in countries around the world, as well as in some U.S. jurisdictions. One is Ranked Choice Voting, or Alternative Voting (AV), which is used in Cambridge, MA, San Francisco, CA and Australia. Another is Mixed Member Proportional Representation, the means for choosing representatives in Germany, New Zealand and others. These videos offer an introduction to Alternative Voting and Proportional Representation
What solutions would you propose?