Wednesday, January 10, 2024
U.S. failure to engage in constructive dialogue with U.N. experts during the 2023 ICCPR Review – Part II
Benefits of Human Rights Treaty Reviews for State Parties
The benefits of reporting incentivize countries to participate in treaty reviews. Human rights treaty reviews allow them to gain technical advice from experts on implementing the rights set out within the treaties they have ratified. Moreover, the treaty review allows for the conversion of interstate complaints into reports, allowing regional and international human rights mechanisms to engage with those reports of human rights violations.
The core foundation of the human rights reporting process is engagement. In compiling these reports, countries are supposed to reflect and assess their own human rights situations, including violations. Countries are encouraged to conduct comprehensive reviews of their human rights policies implementation and progress and then identify gaps presenting obstacles to achieving a society based on dignity and human rights. The bottom line is that human rights treaty body reporting allows for review by other countries, United Nations entities, constructive dialogue, civil society input and international expert advice.
The Role of U.S. Civil Society in the Human Rights Treaty Review
The Human Rights Committee considers the role of civil society key to fulfilling its mandate effectively. Specifically, the Committee considers it necessary that the constructive dialogue be based on information received from the state party, other United Nations entities, and civil society. Civil society provides information to the state party, which the state party should put in its periodic reports. Civil society also provides information directly to the Committee through alternative or “shadow” reports and the presentation of oral information during briefings with the Committee.
Ahead of the review of the United States in October 2023, U.S. civil society submitted 127 shadow reports to the Human Rights Committee. A summary of those reports was compiled by the International Human Rights Clinic at UIC Law and the Program on Human Rights and Global Economy at Northeastern Law. The shadow reports covered issues as broad as the need to establish a National Human Rights Institution, to discrimination based on gender and sex, freedom of expression, assembly and association, Indigenous rights, the right to privacy, treatment of non-citizens, refugees and asylees, rights to food and water, criminalization of homelessness and poverty, and the treatment of persons deprived of liberty, among others.
U.S. civil society was also able to both formally and informally present oral information to the Committee. Committee members participated in informal briefings organized by U.S. civil society in July and September 2023, with two in-person during the week leading up to the formal review in October 2023. In addition, the Committee allowed almost ninety minutes for U.S. civil society to present during the formal NGO briefing for its 139th session on Monday October 16, 2023. There were a record number of U.S. civil society members present in-person in Geneva for the review - over 140 persons traveled to Geneva to attend the review. Oral presentations by directly impacted persons made up the majority of those oral presentations to the Human Rights Committee, including those impacted by death by incarceration sentences, those subjected to racial discrimination and excessive force at the hands of the Border Patrol, Indigenous voices, and more.
As has been noted on this blog previously, the Fifth Periodic Report submitted by the United States to the Committee was incomplete and outdated. Therefore, the information provided by U.S. civil society helped provide the Human Rights Committee with a fuller and more accurate understanding of the human rights issues and violations of human rights at the federal, state, and local level in the United States.
The Constructive Dialogue at the U.S. Review in 2023
The Constructive Dialogue between the Human Rights Committee and the U.S. took place on October 17 and 18, 2023. On October 17, Ambassador Michèle Taylor began by giving some broad opening remarks to the Committee. The Country Report Task Force for the U.S. Review, consisting of Committee members Tijana Šurlan, Imeru Tamerat Yigezu, Changrok Soh, Marcia V.J. Kran, and Yvonne Donders, then began asking the U.S. government delegation direct questions, most of which focused on information provided by U.S. civil society. Other Committee members also asked additional questions to the U.S. delegation. For example, Ms. Donders asked what the U.S. does to combat racism in the criminal justice system and what targets does the U.S. set to eliminate bias.
The U.S. government delegation then had a chance to respond to the Committee’s questions. The U.S. officials’ responses consisted entirely of reading pre-written statements that did not directly address the questions the Committee asked. The Committee then took a brief break and came back to ask a few more questions. The U.S. delegation responded briefly before the Committee Chair Abdo Rocholl adjourned the session for the day.
On October 18, 2023, the Country Report Task Force started off by asking deeper, more probing questions of the U.S. delegation. For example, Committee Member Kran asked what measures the United States is taking to address voting disenfranchisement for those who have served felony sentences. Ms. Kran also asked the U.S. delegation to please engage with her and her colleagues’ specific questions and not speak generally. The U.S. delegation again responded by reading pre-written statements that did not directly address the questions asked by the Committee. The Committee took a break and when the Committee came back, a few additional Committee members asked questions. The U.S. delegation responded again by reading pre-written statements that were only sometimes responsive to the questions presented by the Committee.
When Ambassador Michèle Taylor began providing her broad closing remarks, U.S. civil society members silently stood up and turned their backs on the Ambassador. Once the Ambassador completed her remarks, civil society turned and sat back down. In her closing remarks, Human Rights Committee Chair Abdo Rocholl re-emphasized that the Committee recommended that the United States ratify each of the United Nations human rights treaties and thanked the large number of people from U.S. civil society and government who attended the review - she said thanks in a few indigenous languages - before formally closing the Fifth Periodic Review of the United States by the Human Rights Committee.
The protest was important for U.S. civil society members who were present at the U.S. review. They were frustrated and outraged over the U.S. government’s failure to reply to the Committee’s important questions. The sheer number of civil society members in the room and the dramatic but otherwise un-interrupting silent protest was meant to send a strong message to the U.S. government. Hopefully the U.S. government will do better next time.
Monday, January 8, 2024
U.S. failure to engage in constructive dialogue with U.N. experts during the 2023 ICCPR Review – Part I
Photo @Kaitlyn Kennedy
This two-part post builds on the previous post written by Profs. Dávila A. and Bartlett on the 2023 ICCPR review.
On October 18. 2023, U.S. civil society engaged in a spontaneous protest over the failure of the U.S. government delegation to engage in constructive dialogue with the U.N. Human Rights Committee (“Human Rights Committee” or “Committee”). Photos and videos of that protest when viral, with news media and social media across the globe discussing the protest without knowing the context. During closing remarks by U.S. Ambassador Michèle Taylor during the Human Rights Committee’s Fifth Periodic Review of the United States, U.S. civil society members silently stood up and turned their backs. Once the ambassador completed her remarks and the Committee Chair Tania María Abdo Rocholl began her closing remarks, civil society members sat back down. This silent protest was a powerful statement by U.S. civil society organizations expressing frustration and outrage over the U.S. delegation’s failure to reply to the Committee’s important questions about broad domestic and foreign policy human rights issues from systemic racism, militarization, mass incarceration, reproductive health, immigration, detention, as well as the U.S. failure to protect civilians and prevent mass atrocities in Gaza.
This blog post attempts to address what the constructive dialogue between the Human Rights Committee and the government delegation is supposed to look at during the country review process and helps to explain why the U.S. civil society delegation was spurred on to engage in that powerful protest on October 18.
How the treaty reporting procedure and constructive dialogue is supposed to happen
Once countries (“State parties”) have ratified the International Convention on Civil and Political Rights (the “ICCPR”), then the country is subject to periodic reviews by the Human Rights Committee of its compliance with the treaty. The Committee begins the reporting process (under its Article 40 of the ICCPR obligations) by first composing the Country Report Task Force, composed of 4-5 members of the Committee who will lead and direct the periodic reporting process, and a country rapporteur who is the person leading the drafting of the list of issues and coordinating different procedures throughout the reporting process (with the Human Rights Committee Secretariat’s support), including organizing the substantive contribution of Committee members in the reporting process.
Generally, the review consists of four steps: (1) submission of State party initial or periodic report; (2) constructive dialogue between the State party and the Committee, which includes in-person meetings in Geneva with government delegates and civil society; (3) the Committee issuing Concluding Observations; and (4) follow-up to those Concluding Observations.
The Committee’s examination of State party reports is pursuant to Rule 68 of its Rules of Procedure. These reports must be based on the list of issues created and shared by the Committee with the State party. That list of issues helps frame the scope of the review, including for the purposes of the constructive dialogue.
The United Nations General Assembly passed resolution 68/268 (Apr. 2014) and encouraged collaboration between treaty bodies to create an aligned methodology to be used in constructive dialogue with State parties. The aim of this methodology is to make the dialogue more effective and productive, as well as to maximize the available time for productive dialogue. (Res. 68/268, at para. 5) Additionally, it asked that the Committee, and other treaty bodies, “adopt short, focused and concrete concluding observations…that reflect the dialogue with the relevant State party.” (Res. 68/268, at para. 6). Moreover, during the in-person review in Geneva, the country is invited to bring a delegation with representatives from different bodies, agencies, and entities that may respond to questions posed by the Committee.
The purpose of this constructive dialogue is to elicit an effective process in which the Committee analyzes and reviews human rights developments in the State Party under a specific treaty. In general, the face-to-face dialogue follows the same broad structure for all treaty bodies: (a) the State party is invited to send a delegation to attend the meetings at which the committee will consider the report of the State party; (b) the head of the delegation, usually a representative of the Government of the State in question, is invited to make a brief opening statement; (c) members of the Committee, in some cases led by the country rapporteur(s) or country task force, pose questions on specific aspects of the report of particular interest or concern; and (d) the State party delegation responds to those questions.
An initial review requires a comprehensive assessment by the Committee of the enjoyment by all of the rights in the ICCPR concerned and the related compliance by the State party. A periodic report is more focused on previous recommendations made by the Committee. In practice, however, and with some degree of variation between the different treaty bodies, the difference between the dialogue concerning an initial report and a periodic report is minimal.
The formal review, in person in Geneva, then takes place over two consecutive working days with a three-hour session on each day. These public sessions are usually attended by UN observers, civil society representatives, which may include directly impacted persons, and a National Human Rights Institute (“NHRI”) if the State Party has one. However, the U.S. does not have an NHRI. An NHRI’s purpose is to promote and safeguard human rights domestically. It is an independent, non-governmental entity that establishes productive relationships with the government and with non-governmental organizations (“NGOs”). Some key functions of NHRIs include providing advice to the government, monitoring human rights within the State and within its actions, and engaging with the broader international human rights community. NHRIs are regulated by the 1993 Paris Principles which establishes responsibilities, composition, and operating methods.
While the Biden Administration has “centered” human rights in the execution of U.S. foreign policy, it has not established an NHRI. The lack of a U.S. NHRI was a question posed by Committee member Soh during the first day of the review in October 2023. The U.S. delegation response follows a long trend of the U.S. abstaining from “mainstream international human rights standards.”
An NHRI may help facilitate the work of a National Mechanism for Reporting and Follow-up (“NMRF”). The NMRF is supposed to coordinate and prepare reports on a country’s human rights developments. It is also supposed to engage with regional and international human rights mechanisms to track and follow-up with domestic implementation of treaty obligations. The NMRF performs its duties by consulting with the NHRI and with civil society organizations to ensure its approach is comprehensive in safeguarding human rights.
A lack of both an NHRI and a NMRF hinders the U.S.’s ability to consistently and timely report to the Committee, and such hindrance affects the promotion and enjoyment of human rights across the nation. A lack of both an NHRI and a NMRF also hindered the constructive dialogue between the Committee and the government delegation during the 2023 U.S. Review.
Wednesday, November 29, 2023
U.N. Human Rights Committee Offers Critical Recommendations for Transgender Rights in the United States
By: Nic Stelter, Student Fellow & Tamar Ezer, Acting Director Human Rights Clinic, University of Miami School of Law
As we mark the end of Transgender Awareness Month, the United States needs to take a hard look at rampant discrimination against transgender communities. Since 2019, laws violating transgender rights have swept the country:
- 14 states limit discussion of LGBTQ+ issues in schools and prohibit the use of transgender students’ names and pronouns.
- In 9 states, transgender individuals are prohibited from using the bathroom that corresponds with their gender identity in schools, as well other public spaces in some cases.
- 22 states ban at least some forms of gender-affirming health care for children, and 5 of these states punish gender-affirming care as a felony.
- In 23 states, transgender students are banned from participating in school sports consistent with their gender identity.
- We’ve seen book bans double with 45.5% of books targeted written by or about LGBTQ+ individuals.
Moreover, lawmakers have introduced over 500 more bills limiting transgender rights in just the last year.
Our Human Rights Clinic had the opportunity to support a coalition, including Human Rights Watch, Equality Florida, Florida Health Justice Project, Southern Legal Counsel, and Southern Poverty Law Center in advocacy before the United Nations (U.N.) Human Rights Committee, as it reviewed the U.S. for compliance with the International Covenant on Civil and Political Rights (ICCPR). This included submission of a shadow report on human rights violations against transgender communities, development of a factsheet, and oral presentations to the Committee.
Earlier this month, the Human Rights Committee released its Concluding Observations and underscored with concern “the increase of state legislation that severely restricts the rights of persons based on their sexual orientation or gender identity.” Additionally, it pointed to hate crimes and prevalent discrimination in access to housing, employment, and other services. The Committee found violations of the rights to equality and non-discrimination; freedom of expression; privacy; family; life; and freedom from torture and cruel, inhuman, and degrading treatment.
To prevent these abuses, the Human Rights Committee urged the U.S. to “adopt all measures necessary to ensure that state laws that discriminate against persons based on their sexual orientation and gender identity are repealed and that comprehensive legislative initiatives prohibiting discrimination on those grounds . . . are adopted at the federal, state, local and territorial levels.” The Committee further called on the U.S. to investigate harassment and violence against transgender individuals and make sure that “perpetrators are brought to justice and victims are provided with effective remedies and redress.”
It is time for the U.S. to heed the Committee’s recommendations. Its findings, as Human Rights Watch noted, are “a wake-up call for state and federal lawmakers.” As one of our partners, a former teacher and transgender resident of Florida, poignantly stated, “Trans people are humans too and deserve to live in this country.” Let’s make the U.S a place where everyone can live with dignity. We hope the Concluding Observations can serve as a tool in pushing this forward.
Wednesday, November 15, 2023
Martha F. Davis and Risa Kaufman, A Global View of U.S. Backsliding on Democracy and Reproductive Rights, ACS Blogs, Expert Forum (Nov. 13, 2023). Excerpt below.
This month, the United Nations Human Rights Committee concluded its review of the United States’ human rights record. Nine years had passed since the Committee’s last review of the U.S. With many urgent issues to address – including gun violence, excessive use of force by law enforcement, climate change, and Guantanamo – the Committee trained particular focus on the state of reproductive rights and democracy in the United States. The Committee’s alarm over the flood of restrictions on reproductive and bodily autonomy, alongside its deep concern over attacks on the right to vote, points to the deep connections between reproductive rights and democracy. Americans have a front row view of these connections in the wake of the Supreme Court majority’s decision in Dobbs to eliminate federal constitutional protections for abortion and leave the issue up to the political branches and the states. The global perspective offered by the UN review is a reminder, however, that regression on reproductive rights reinforces and supports erosion of democracy. These are mutually reinforcing trends. And the UN review underscores the urgency of safeguarding both.
Tuesday, October 31, 2023
This blog post is crossposted with permission from the Reproductive Rights Law Profs Blog.
By Hannah Filippino and Benita von Lilienfeld-Berry, Law Students in CUNY Law School's Human Rights & Gender Justice Clinic
Earlier this month, the United Nations Human Rights Committee (“HRC”) reviewed the U.S.’ performance under one of the only three international human rights treaties that the U.S. has ratified: the International Covenant on Civil & Political Rights (“ICCPR”). As expected during the two-day review, the HRC members grilled the U.S. on the impact that the Supreme Court case Dobbs v. Jackson has had on access to abortion, but they also asked tough questions about other reproductive justice issues, including the U.S.’s failure to address maternal mortality and the improper separation of families by Child Protective Services.
To ensure that HRC members were fully informed of ICCPR violations in the U.S., civil society members submitted over 70 reports and sent 150 human rights lawyers and activists to attend the review. Through CUNY Law School’s Human Rights & Gender Justice Clinic, we attended the review as part of civil society and submitted a shadow report with If/When/How, Pregnancy Justice, the Center for Reproductive Rights, Birthmark Doula Collective, Changing Woman Initiative, and We Testify. The report highlights the ways in which abortion, miscarriage, and pregnancy outcomes are criminalized in the U.S. in violation of multiple rights protected under the ICCPR, including the rights to life, non-discrimination, equal protection before the law, freedom from cruel, inhuman, and degrading treatment or torture, as well as health care privacy (Art. 6, 7, 17, 2, 3, 26). Several other organizations also submitted separate reports focusing on abortion access and maternal mortality.
During the review, Serbian Committee Member (“CM”) Tijana Šurlan made maternal mortality and reproductive rights one of her primary concerns. She emphasized that the U.S. must adopt positive measures to both reduce maternal mortality and ensure abortion access to protect pregnant people’s rights to health and life. Noting the disproportionately high rates of maternal mortality in Black, Indigenous, and Native Hawaiians and other Pacific Islander communities, she asked what measures the U.S. is undertaking to improve health care for these vulnerable groups. She also framed decriminalizing religious and cultural midwifery as a pivotal piece of reducing the U.S.’ maternal mortality rate, which is the highest among wealthy countries.
CM Šurlan described the Dobbs cases as a serious retrogression after five decades of protection for sexual and reproductive health rights established since Roe v. Wade. French CM Hélène Tigroudja also focused on the criminalization of abortion and asked President Biden’s delegation to describe tangible, precise measures that the U.S. has taken to reduce the criminalization of abortion providers, seekers, and their helpers in light of the World Health Organization’s (“WHO”) 2022 Abortion Care Guidelines. In doing so, she emphasized that the right to choose pregnancy requires safe and legal abortions under the ICCPR rights to life, non-discrimination, and freedom from cruel, inhuman, and degrading treatment or torture. CM Tigroudja also expressed concern about State data surveillance being weaponized to criminalize abortion. She further highlighted that since Dobbs, pregnant people that either receive abortive care or are forced to carry their pregnancies to term have been discriminated against and are suffering physically and psychologically as a result.
CM Šurlan asked the U.S. to clarify what remedies are in place for people who are forced to carry their pregnancies to term, as well as for those who suffer from severe health problems from unsafe abortions. She also asked about the possible creation of a federal statutory right to abortion through legislation like the Women’s Health Protection Act. Chilean CM Hernán Quezada Cabrera expressed concern about how Child Protective Services uses behavior during pregnancy as a basis to separate families and even arrest parents instead of undertaking measures to help families and alleviate poverty. He alluded to the ways that this criminalization of pregnancy relates to racist family separations by Child Protective Services, which were also criticized when the U.S. was reviewed for its compliance with the Convention on the Elimination of All Forms of Racial Discrimination in 2022.
While the government delegates agreed that the Dobbs decision has caused serious human rights violations, they failed to directly address state laws banning or severely restricting abortion access in response to the HRC’s questions. Instead, the government representatives discussed enforcing federal laws that safeguard private health care information, require health care treatment in emergencies, and prohibit threats and violence at clinics. The Special Assistant to the President for Democracy and Civic Participation at the White House, Justin Vail, emphasized that the right to choose is fundamental, but, other than noting the executive orders enforcing federal laws, he only stated that the federal government is trying to pass laws to restore Roe protections.
The sole state-level delegation member, Attorney General Aaron Ford of Nevada, described efforts to protect abortion rights in his state. However, Nevada is only one of fifty states, and it is also the only state that explicitly criminalizes self-managed abortion.
Ultimately, the Biden delegation relied on federalism to avoid accountability for our nation’s violations of the ICCPR. In doing so, the Biden delegation continued the U.S.’ longstanding history of ignoring its obligations to adhere to international treaties like the ICCPR as “The Supreme Law of the Land” under the Constitution.
The HRC is expected to release its formal concluding observations on November 3.
Wednesday, October 18, 2023
“What do we want - DIGNITY; When do we want it - NOW; And if we don’t get it - SHUT IT DOWN”
On Monday Oct. 16, 2023, over thirty people from U.S. civil society organizations held a protest in the streets of Geneva, Switzerland. This unusual event came out of years of frustration with the U.S. government’s refusal to meaningfully consult with U.S. civil society ahead of and during U.S. human rights reviews in Geneva. Some protesters silently walked out of a meeting at the U.S. Mission. Those protesters then joined a larger group waiting outside with posters, lots of energy, and most importantly demanding to be heard while marching in front of the headquarters of the United Nations Office of the High Commissioner of Human Rights, chanting together (see protest calls above and at the end of this post below). Then again, today on Oct. 18, 2023, U.S. civil society protested the lack of meaningful participation by the U.S. government relating to its review of the ICCPR, by turning their backs after the review had concluded.
This week marks the Fifth Periodic Review of the United States’ compliance with its duties and obligations under the International Covenant on Civil and Political Rights (ICCPR). During its review of the United States, the United Nations Human Rights Committee (Human Rights Committee), a treaty body made up of independent human rights independent experts, will monitor U.S. compliance with the ICCPR.
The Human Rights Committee has four monitoring functions, in its supervision and monitoring of the implementation of the ICCPR. The Human Rights Committee: (1) receives and examines reports from State parties on their progress in upholding the treaty; (2) provides general comments, interpreting the ICCPR; (3) receives and considers individual complaints (“communications”); and (4) considers inter-state complaints relating to state failure to upload ICCPR obligations.
During this 139th Session, the Human Rights Committee had the opportunity to ask questions of the U.S. government and will provide recommendations (“concluding observations”) for measures to be taken at the federal, state, and local levels to advance and protect human rights under the treaty).
The Human Rights Committee questioned U.S. officials about their laws and practices, but also heard, both formally and informally, from civil society (non-profits, directly impacted individuals, advocates engaging with communities in the U.S., law professors and law students, among others) about the United States’ compliance with the ICCPR. These interventions by civil society are very important to the treaty body’s work; by helping shape the questions that must be asked of the United States given the reality of human rights on the ground. Civil society interventions will also help inform the Human Rights Committee’s recommendations on the United States which will be issued on Nov. 3, 2023. In turn, civil society will use the recommendations issued by the Committee in advocacy work in the United States.
U.S. civil society participation in U.S. human rights treaty body reviews has been historically very high, especially compared with other countries who participate in reviews. In fact, this week there were more than 140 people from U.S. civil society organizations in Geneva. Civil society should have an opportunity to participate in this review process through real and meaningful consultation with the U.S. government as well as submit public reports based on the list of issues provided by the Human Rights Committee. The reports covered a variety of very pressing issues, including human rights violations in relation to race, ethnicity, gender, sexual orientation, legal status, and socioeconomic problems. Those reports provided very concrete recommendations for the U.S. government on how to take action and actually protect human rights under the ICCPR.
Meaningful participation is critical in treaty-based reviews of country obligations under treaties, such as the ICCPR. As a human right, all persons have the right to freely participate in public affairs, as guaranteed under Article 25 of the ICCPR. The right to participation is critical to the advancement of all human rights because it promotes democracy, the rule of law, social inclusion, economic development, and overall visibility and the ability to be heard by government official. Human Rights Committee, General Comment No. 25 provides that individuals have the right to take part in the conduct of public affairs, including the formulation and implementation of policy at the international and regional levels.
Effective participation must be a process that includes a variety of stakeholders, including State and non-State actors, private entities, civil society, and affected populations. Special attention must be given to the effective participation of women, gender-minorities, indigenous peoples, and other disenfranchised and vulnerable populations whose voices have not been heard and who have been historically excluded from participatory processes.
While the current administration has held consultations, they have fallen short of providing specific implementation measures to comply with the ICCPR and the consultation process itself, which requires meaningful participation. Moreover, those consultations were held with little to no government interaction or response. Additionally, U.S. government officials invited a limited number of people (approx. 50% of civil society attending the review in Geneva), to the U.S. Mission for a consultation and reception, ignoring calls by civil society for a location that would accommodate all civil society members interested in attending. During that meeting, as with previous consultation processes earlier in the decade, government officials have routinely used pre-written statements not responsive to civil society interventions, thus reflecting the true nature and superficiality of the consultation process to date.
Just last year when the United States’ compliance with the Convention on the Elimination of Racial Discrimination was reviewed in July 2022, the U.S. similarly engaged very superficially without engaging meaningfully with civil society. The United States is not doing enough to meaningfully consult with civil society during human rights treaty body reviews and the protest on Monday and today are a direct result of the frustration and anger felt by civil society after being ignored once again by the U.S. while being reviewed by the Human Rights Committee this week in Geneva.
“Derechos humanos por eso aqui estamos.”
Tuesday, October 3, 2023
The UN Human Rights Committee Will Review the U.S. Next Month. Why Not Engage with the Committee on the Abolition of Immigration Detention of Children? – Part II
Prof. Bartlett writes this second of a two-part post on the U.N. Human Rights Committee’s upcoming review of the United States during the week of October 16th.
For over a decade, international human rights mechanisms have been calling for a complete prohibition on the detention of migrant children, with or without their families, based solely on migration status. There is a consensus in international human rights law that any deprivation of liberty of children based solely on migration status, no matter how brief, is a violation of human rights law and may amount to ill-treatment. In 2012, the U.N. Committee on the Rights of the Child stated that the detention of children based on their migration status or their parents’ migration status is a clear human rights violation. In 2015, Juan Mendez, the former U.N. Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment stated that “States should, expeditiously and completely, cease the detention of children, with or without their parents, on the basis of their immigration status.” Both Juan Mendez and his successor, Nils Melzer, agree that the detention of migrant children based solely on migration status is never in the best interests of the child, as it “exceeds the requirement of necessity and proportionality and, even in case of short-term detention, may amount to ill-treatment.” The European Court of Human Rights has noted that the best interests of the child must be determined on an individual basis in assessing the possibility to admit, return, expel, deport, repatriate, reject at the border.
The U.N. Special Rapporteur on the human rights of migrants dedicated his 2020 thematic report to ending the immigration detention of children. In that report he stated that the “human rights of children have neither nationality nor borders.” The child’s right to non-discrimination includes the protection of children against all forms of discrimination and punishment, “including specifically on the basis of the status of the child and his or her parents or family members.” The Special Rapporteur on migrants also stated that the “imperative requirement not to deprive the child of liberty extends to the child’s parents and requires the authorities to provide alternative measures to detention for the entire family.” Clearly U.S. practices of depriving children of their liberty, without access to adequate food, healthcare, or education, separated from their family members, for prolonged periods of time in hieleras, solely based on their migration status, is a violation of international human rights law.
U.S. Should Explore a Path Towards the Abolition of Immigration Detention for Children
The United States is closer than many may think to abolishing the immigration detention of children. The Biden Administration has officially halted the practice of caging children at the border since 2021, instead releasing migrant children and their families into the United States with ankle bracelets or traceable cellphones to keep track of them. The U.S. government has recognized that the harms perpetrated on children are severe and long-lasting, and though the United States has not outlawed the practice, U.S. law already provides for limits on immigration detention of children and minimum standards of detention conditions.
Moreover, and despite American exceptionalism, the United States does regularly avail itself to the expertise and guidance of human rights mechanisms. For example, the United States rejoined the U.N. Human Rights Council, the United States attends and participates in treaty body reviews, the Universal Periodic Review, Inter-American Commission hearings, and official visits from human rights experts.
If President Biden hopes to stick to his commitment of avoiding the detention of migrant children at all costs, he will need help. Instead of making excuses, the U.S. government should take advantage of the expert guidance that can be provided by international human rights mechanisms, including by the U.N. Human Rights Committee during its review of the United States in October 2023. Compliance with recommendations made by international human rights mechanisms is voluntary and relatively little domestic attention is given to U.S. engagement with these mechanisms. The expertise and guidance that international human rights mechanisms can provide on this subject is unparalleled.
Abolition of immigration detention of children is the right thing to do and in line with U.S. international human rights obligations; the United States can start down the path of dismantling its racist, oppressive, and violent immigration system and prevent future long-term harm to the hundreds of thousands of migrant children each year.
Monday, October 2, 2023
The UN Human Rights Committee Will Review the U.S. Next Month. Why Not Engage with the Committee on the Abolition of Immigration Detention of Children? – Part I
Prof. Bartlett writes this two-part post on the U.N. Human Rights Committee’s upcoming review of the United States during the week of October 16th.
The U.S. human rights record will be on full display next month when the U.N. Human Rights Committee finally gets to review the Fifth Periodic Report submitted by the United States during the final days of the Trump administration in January 2021. Some important federal immigration policies have changed for the better under the Biden administration, including a halt, however temporary it might be, on the inhumane practice of detaining migrant children and their families in cages at the border. However, the U.S. report does not reflect those changes despite calls by human rights advocates for updates and it is unlikely that the topic of the abolition of immigration detention of children will be given much play during the review.
If the Biden administration is serious about forging a path towards the abolition of immigration detention of children, it should at the very least engage on the topic with international human rights mechanisms, including during the upcoming review of the United States by the U.N. Human Rights Committee. This is a relatively low stakes step that the U.S. government can take towards abolition.
Migrant Children Detained at the U.S. Border
Detaining children in cages even for short periods of time is traumatic and has negative long-lasting impacts on child health and well-being. While some countries around the globe have outlawed the detention of children based solely on migration status, U.S. law allows officials to put children in cages at the border for up to twenty days and that time limit is rarely enforced.
Until just a year and a half ago, the United States detained hundreds of thousands of migrant children in cages each year. Out of nearly 2 million people detained by the United States at the border from February 2017 through June 2021, more than 650,000 were children. Children detained at the border were held in cages that were built decades ago, at a time when most detained migrants were adult men who were held briefly and rapidly deported. Migrant children were detained in wire cages or tents and then were later moved to larger cinder block cells. The children reported that the food was spoiled and made them sick. Kids with injuries, fevers, coughs or stomachaches could not get basic medical care. Children were held for weeks in the same wet and filthy clothes after journeying thousands of miles and crossing the Rio Grande river. Children also reported bone-chilling cold from the air-conditioned cinder block cells, which are known across the border as hieleras, meaning iceboxes in Spanish.
There are many excuses used by the U.S. government for putting migrant children in cages. These excuses include security and terrorism, deterrence, risk of absconding, public health, and ensuring the child’s well-being. However, detention is never in a child’s best interest and the ill-treatment endured by child migrants means these excuses fall short of justifying these practices. Moreover, many of the detained migrant children, up to forty-six percent or more, had valid asylum claims and require protection as refugees under international law.
At least for the time being, the U.S. government no longer puts migrant children in cages. Today, migrant children with their families at the border must wait near the border for their turn to use the mobile app called CBP One. The U.S. Department of Homeland Security is allowing roughly 40,000 migrants per month to make appointments through the CPB one app, with more than 100,000 migrants waiting to use the app at any given time. If a family receives an appointment and their asylum claims are processed by the Border Patrol, they are supposed to be briefly processed by the Border Patrol and then released into the United States with their movements tracked through a GPS monitoring device, such as ankle bracelets or traceable cellphone.
Unaccompanied children at the border detained by Border Patrol are now supposed to be immediately transferred to the U.S. Department of Health and Human Services’ Office of Refugee Resettlement (ORR). The ORR places unaccompanied children in shelters and then with sponsors, usually family members, as they await immigration proceedings. Though the ORR has used large temporary facilities to detain unaccompanied children at the border in the past, which resemble the Border Patrol cages and hieleras, no migrant children have been held in such a temporary facility since 2022 according to the ORR’s website.
While current practices regarding migrant children at the border do not officially involve cages, there are ongoing worries about conditions in the CBP and ORR facilities. In addition, there is a strong argument that GPS monitoring is just another form of oppressive and racialized violence perpetuated against migrants. The bottom line is that no inhumane, cruel or tortuous practices should be perpetuated by the U.S. government against migrant children.
Tuesday, March 29, 2022
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.
Sunday, January 6, 2019
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.