U.S. adjusts view on human rights law in wartime

In its recent submission to the Human Rights Committee, the United States has backed off a long-standing position: that international human rights law does not apply in a time of armed conflict when international humanitarian law applies.
The change occurs in the Fourth Periodic Report of the United States to the U.N. committee, which monitors states parties' compliance with the International Covenant on Civil and Political Rights.
As noted Saturday in our first post on the Fourth Report, the United States appeared in its submission to soften its stance vis-à-vis the question of whether a state’s human rights obligations apply when that state is operating extraterritorially.
With regard to applicability of human rights law in time of armed conflict, the change of U.S. views was express. In particular, the United States stated in the Fourth Report, at ¶ 506:

With respect to the application of the Covenant and the international law of armed conflict (also referred to as international humanitarian law or “IHL”), the United States has not taken the position that the Covenant does not apply “in time of war.” Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application.

The United States stated that “typically” it is international humanitarian law that regulates the conduct of states in armed conflict situations, according to the doctrine of lex specialis. In the next breath, however, the U.S. submission stated at ¶ 507:

In this context, it is important to bear in mind that international human rights law and the law of armed conflict are in many respects complementary and mutually reinforcing. These two bodies of law contain many similar protections [such as the prohibition against torture].

Later, the submission noted that the choice of law question is fact-specific:

Determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot be easily generalized, and raises especially complex issues in the context of non-international armed conflicts occurring within a State’s own territory.

These passages suggest both a more relaxed understanding of the relationship between these two bodies of law and an imperative to harmonize legal obligations when there is no direct contradiction between them.
In addition, this language suggests that it is the United States' view that there may be aspects of a state's conduct that are, in fact, governed by human rights law, even in a state of armed conflict.

U.S. ICCPR report coy on extraterritoriality

Over the holidays, the United States released its Fourth Periodic Report to the Human Rights Committee, which is charged with monitoring the 1966 International Covenant on Civil and Political Rights, to which the United States became a party in 1992. (Prior filings from the United States are available here.)
Needless-to-say, there is lots of interest in this 693-paragraph report. This and a subsequent post will focus the United States' vision of the applicability of human rights norms:
► Extraterritorially; and
► In time of armed conflict.
The first question, dealt with in this post, is the extraterritorial application of the ICCPR, and presumably other human rights obligations governed by similar scope-of-application language. (As an example, see IntLawGrrl Diane Marie Amann's 2006 ASIL Insight on the U.S. claim to this effect made before the Committee Against Torture.)
The interpretive question turns on the meaning of the second “and” in ICCPR Article 2(1), italicized below:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant,without distinction of any kind…

The United States has historically interpreted this provision to mean that the U.S. owes duties only to those individuals who are both within its territory and its jurisdiction. Thus, in its 2005 Periodic Report (which actually encompassed both the Second and Third Reports, as we were in arrears), the United States insisted at ¶ 130:

[T]he obligations assumed by a State Party to the International Covenant on Civil and Political Rights apply only within the territory of the State Party.

This position stayed consistent through at least 2007.
A more expansive interpretation yields the conclusion that the Convention applies to two classes:
► Persons within U.S. territory; and
► Persons within U.S. jurisdiction.
The latter would include,at a minimum, individuals within the effective but extraterritorial control of the United States. A difficulty of this position is envisioning examples of persons who would be within a state's territory, but not its jurisdiction. One option would include individuals on a portion of the territory of the state that is controlled by a rebel or insurrectionist party in a non-international armed conflict.
In ¶ 505 of its Fourth Report, the United States coyly acknowledges its prior position on this point, but also takes notice of three important legal sources setting forth the contrary view. The paragraph states in full:

Human rights & individual complaints

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

International human rights treaties have reformulated the ways in which citizens possess and articulate human rights and that governments are required to respect and validate these rights. Perhaps one of the most novel aspects of the early international human rights treaties was their creation of individual complaint mechanisms. Through these mechanisms, individuals who meet the appropriate standing requirements are able to bring a complaint regarding state conduct to the applicable committee for review.
The initial novelty of the individual complaint mechanism has given way to increased usage of these mechanisms in more recent international human rights treaties, including those that directly and indirectly impact on women. At first glance, this would appear to be a vehicle through which the individual is able to claim her rights as a member of the international community through the Universal Declaration of Human Rights and the individual human rights treaties themselves.
However, when one looks beneath the surface there are deeper questions that impact the individual and the international community as a whole.
My article, “Don’t Mind the Gap: The Rise of Individual Complaint Mechanisms Within International Human Rights Treaties,” forthcoming in the Duke Journal of Comparative and International Law, scrutinizes these trends.
The article discusses the history of individual complaint mechanisms within the international human rights treaty systems that use them, in order to chart the:
► Growth and development of the individual complaint mechanism overall; and
► Key differences in terms used by these instruments.
From these comparisons, it is argued that there is a discernible trend in the increase of asserted rights and claimed abilities of individuals through the expansion of individual complaint mechanisms.
Against this background, the article examines individual penetration of the international human rights system and the implications of this trend for individuals and the international human rights law system as a whole.
Although clearly the strictures of the international law system mandate that the individual complaint system is itself structured in a way that is essentially state-centric, the increasing prominence of the individual in international human rights law is a discernible trend that stands to alter the understanding of the international system. This prominence, however, is based on a greater sense of individual empowerment than the language of individual rights that has been traditionally used in international human rights law. The increase in individual prominence is certainly laudable but, by attaching this increased individual penetration of the international human rights law system to an ever-increasing series of specialized conventions, there is a significant risk of fragmenting the concept of the international human rights law system.
For example, a woman might also be disabled, be part of a national minority group that is barred from voting, and be tortured by the state in which she lives. Many of her essential human rights have been violated and if her home state is a state party to the individual complaint mechanisms – and barring a justiciability problem – she will be eligible to make a complaint.
But how is our victim to know which individual complaint mechanism to use?
She qualifies under several different international human rights treaties and identifying her by only one of her traits or allowing her to assert one set of her rights denies her both individual identity and agency over the human rights that the international community recognizes are vested in her.
By asking her to choose which aspects of her identity she wishes to express and which of her human rights she wishes to assert, the international human rights law system is in fact denying her the active ability to assert herself, her full identity and her human rights, and is, in effect, reducing the benefits that it has created through the establishment of individual complaint mechanisms as accepted tools of international human rights law.
Essentially, this situation perpetuates the very paradigm that the more specific international human rights law treaties claim to remedy in that the full identity of the individual cannot be recognized as such. Here, however, this is the case because of a fragmentation of identity rather than an overly broad human or non-specific rights protection. Ultimately, this imperils the very gains made by the penetration of the individual into the international human rights law system that is achieved through the individual complaint mechanism as a concept since the individual cannot fully assert his agency and human rights, thus weakening the importance of these rights.
Instead, it is argued that the individual, as the foundation of the human rights and dignities that are the backbone of international human rights law, should not need to seek specialized avenues of redress, but rather should be able to penetrate the international law system based on his basic identity as the holder of human rights and human dignity. This is especially so because these concepts of essential human rights and human dignity are at the core of the entire international human rights law system.
This recommendation stresses both the internal status of people as holders of human rights and human dignity, while also doing away with the need to create new quasi-judicial structures that are themselves potentially limiting, depending on the ways in which they are drafted and function.
Whether the appropriate body to handle such a concept is the Human Rights Committee (logo at right) or another body is not the overall concern of this article; rather, this article serves to highlight an important trend in international human rights law and to discuss the potential impacts of this trend on the international law system. Underlying this discussion is the overall question of how the ability of an individual to assert his human rights in an international legal context impacts the:
► International community;
► Idea of state-centricity; and
► Understanding of international human rights law.
At the individual level is the underlying question of whether individual identity, which is reinforced through the ability to penetrate the international human rights law system, is threatened through the idea of fragmentation that is often needed to assert individual human rights violations.

Still Kicking at 60?

In this 60th anniversary year of the 1951 Convention Relating to the Status of Refugees, reflections on the treaty tend to focus on its gaps in coverage and its incapacity to address modern problems faced by those fleeing persecution in their home state. UNHCR's Washington office has taken a more constructive tack, drawing up a list of pledges that the United States should adopt in order to bring its refugee law and policy into line with the letter and spirit of the Refugee Convention. Available for download here, the pledges cover a broad range of issues, from bars to asylum to statelessness. Though a creative use of UNHCR's soft law power, the list also serves as a reminder of the limited options for adapting the treaty to modern refugee protection dilemmas.
The list of pledges is a detailed public shaming exercise, with the international community --specifically other States Parties -- as audience. In December, UNHCR will host a Ministerial meeting in Geneva of States Parties to the Refugee Convention and the 1961 Convention on the Reduction of Statelessness to commemorate, respectively, their 60th and 50th anniversaries, as well as the UNHCR's 60th anniversary. At that meeting, States are "invited to reaffirm their commitment" to their treaty obligations through pledges. Working with the State Department's Office of Population, Refugees, and Migration (PRM) as well as academics and NGOs, UNHCR drafted proposed pledges that the United States might make in sixteen areas of domestic and international protection.
Though certainly related to some UNHCR Executive Committee Conclusions (the main site of soft law creation in the refugee regime), the pledges are significantly more country-specific. Indeed, the level of detail is reminiscent of recommendations from the Universal Periodic Review process or Special Rapporteur country reports, without the lengthy critique section. This specificity wields significant shaming power, though if the audience is other States Parties, it's not clear that their records of compliance with the text and spirit of the Refugee Convention are any stronger.
Would a treaty enforcement body with the power to issue binding decisions in individual cases (such as the Human Rights Committee) fare better in the compliance realm? The central obstacle here, of course, would be convincing the United States to sign on to a mechanism that allowed individual complaints. UNHCR's list of proposed pledges demonstrates the obstacles -- requiring the allocation of significantly more resources to the asylum process for adjudicator training and pro bono legal counsel, reforming interpretations of national security exclusion grounds, ending the prosecution of refugees who enter on false documents, and offering a full and fair refugee screening process for individuals interdicted at sea. Even if the U.S. agreed to submit to an individual complaints process, it's hard to say whether it would be more beneficial to the refugee law regime to establish a legal mechanism whose inconvenient findings it would likely ignore than to stay the current course.
In any case, it seems that even if PRM adopts most of UNHCR's list of pledges, they are not likely to be implemented in the current political climate. Many of the proposals require significant resource expenditure and/or currently unpopular stances that prioritize immigrants' rights over a broad national security agenda. Public education is the key to making these changes politically viable. It's a long slow path, but one that UNHCR might be able to help build.

Go On! Universal periodic review

(Go On! is an occasional item on symposia and other events of interest)

The Maastricht Centre for Human Rights welcomes practitioners, scholars, and students to a seminar entitled Universal Periodic Review Process and the Treaty Bodies: Constructive Cooperation or Deepening Divisions? It will take place on November 25, 2011, in Maastricht, the Netherlands.
Organizers write:

The United Nations human rights system has undergone substantial changes in the past six years. With the emergence of the UN Human Rights Council and the implementation of the Universal Periodic Review process, new intergovernmental initiatives and a peer-based supervisory mechanism have been introduced into the UN human rights system. Until the establishment of the UN Human Rights Council and the creation of the Universal Periodic Review mechanism (UPR), monitoring within the UN human rights system consisted primarily of monitoring by Treaty Bodies on the basis of periodic state reports. The first four-year cycle of the UPR will be concluded at the end of 2011. The UN High Commissioner for Human Rights has also announced a process to reform the Treaty Bodies. Therefore this is a good moment to assess the experiences and results of the UPR’s first cycle and the proposed reforms to the Treaty bodies.
This seminar seeks to assess the contributions of the UPR in relation to the monitoring of state human rights obligations by Treaty Bodies. In addition, this seminar aims to evaluate the contribution of the UPR in the broader context of the functioning of international peer-based supervisory mechanisms, including the OECD, IMF, Council of Europe, ILO, EU, WTO and the African Peer Review mechanism. Experiences within the other international peer review mechanisms, in place at the international level for decades, could be instructive in an analysis of the UPR process and in proposing ways to strengthen or improve its interaction and collaboration with the Treaty Bodies.

Among the many confirmed participants are Human Rights committee members are Michael O’ Flaherty (Ireland) and Cornelis Flinterman (Netherlands), Geneva-based international law professor Andrew Clapham, and Marianne Lilliebjerg of Amnesty International.
The full program is here; other details and registration here.

Guest Blogger: Ruth Wedgwood

We at IntLawGrrls are honored to welcome Ruth Wedgwood (left) as today's guest blogger.
Ruth is the Edward B. Burling Professor of International Law and Diplomacy and the Director of the International Law and Organizations Program at SAIS, the Washington, D.C.-based Paul H. Nitze School of Advanced International Studies of Johns Hopkins University.
In addition to teaching at SAIS, Ruth has been a Professor at Yale Law School, a Visiting Professor at the University of Paris I (Sorbonne), Berlin Prize Fellow of the American Academy, and Charles H. Stockton Professor at the U.S. Naval War College.
From 2002 to 2010 she was a member of the U.N. Human Rights Committee, which monitors state compliance with the International Covenant on Civil and Political Rights; she's also been an independent expert for International Criminal Tribunal for the former Yugoslavia. Ruth has served on the Advisory Committee on International Law of the U.S. Department of State, on the Defense Policy Board, and on the CIA Historical Review Panel. She was a U.S. public delegate to Organization for Security and Co-operation in Europe and to the Wehrkunde Munich Security Conference. Among many other professional achievements, she is a founding member of Davos World Economic Forum Council on International Law, and has served as a Senior Fellow at the Council on Foreign Relations, as a Vice President of the American Society of International Law, on the Board of Editors of the American Journal of International Law, as Director of Studies at the Hague Academy for International Law. Currently she is President of the American Branch of the International Law Association; her guest post below seeks participation in and proposals for sessions at ABILA's next annual meeting.
After earning her J.D. from Yale Law School, where she was Executive Editor of the Yale Law Journal, Ruth served as law clerk to Judge Henry Friendly of the U.S. Court of Appeals for the Second Circuit and to Justice Harry Blackmun of the U.S. Supreme Court. She was a federal prosecutor in the Southern District of New York before entering academia.
Ruth chooses to honor her great-grandmother, Belle Hamer, who, Ruth writes,

taught school in a one-room school house on the Olympic Peninsula in late 1800s, before Washington was a state ... hardly world historical, but my kind of gal ...

(credit for photo of a circa 1904 one-room schoolhouse in Port Angeles, largest city on the peninsula) Today Hamer joins IntLawGrrls' other foremothers in the list just below our "visiting from..." map at right.

Heartfelt welcome!

Human Rights Committee on freedom of speech

The Human Rights Committee, which interprets and enforces the International Covenant on Civil & Political Rights, has circulated a new draft General Comment (slated to be number 34), which will replace General Comment No. 10, which dates from 1983, on freedom of opinion and expression. (General comments are authoritative interpretations of human rights treaties by treaty bodies). Given events in the Middle East and North Africa, as well as the WikiLeaks controversy, this study could not be more timely.
The draft Comment makes the following key points:
► Reservations to Article 19(1) ("Everyone shall have the right to hold opinions without interference") would be incompatible with the object and purpose of the Covenant. In this regard, the Committee also notes that even though Article 4 does not list the Article 19 rights of opinion and expression as non-derogable, it would never be necessary to derogate from such rights, even in a time of national emergency. The Committee has taken a similar approach to the right to seek judicial redress, which is deemed essential to enjoying the Covenant's expressly non-derogable rights even though it is not listed in Article 4 as non-derogable. The Committee did not offer its specific views, however, on how the omnibus non-discrimination clause in Article 2 should be reconciled with the non-derogation clause in Article 4, which does not list "political opinion" as a ground on which derogations are prohibited. Nor does it help with understanding the difference between freedom of thought contained in Article 18(1), which is expressly non-derogable per Article 4 and not subject to clawback by Article 19(3), and freedom of opinion contained in Article 19(1).
► In keeping with general principles of state responsibility, the Committee notes that a state may be in breach of the Covenant in a situation in which any branch of the federal or sub-federal government fails to respect freedoms of opinion and expression. This may also be the case with respect to "semi-state entities," although the Committee does not employ the term "non-state actor." It only notes that states parties are also obliged to ensure that all persons are protected from private action that might impair the enjoyment of freedoms of opinion and expression. Since the landmark Velásquez Rodríguez v. Honduras, case before the Inter-American Court of Human Rights, treaty references to the obligation of states to "ensure" rights have served as a hook to ascribe state responsibility for private action where states are not diligent in protecting individuals from violations by private parties (see prior posts here, here and here). It is not clear if this formulation is meant to be less far-reaching than standard attribution theories of state responsibility.
► It is a breach of the Covenant to criminalize the holding of an opinion. Here, the Committee cites its Views in the case of Faurisson v. France involving France's Holocaust denial legislation (a.k.a. "contestation de crimes contre l'humanité"). (See prior post here). In that case the Committee found no breach of the Covenant where a conviction under this legislation

did not encroach upon his right to hold and express an opinion in general, rather the court convicted Mr. Faurisson for having violated the rights and reputation of others.

The Committee concluded that any restriction on the petitioner's freedom of expression was permissible under Article 19(3), which states that

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others...

The Committee determined that the law was "necessary" to advance the struggle against racism and anti-semitism. Article 19(3)'s clawback clause lays down conditions under which restrictions to the right to expression and to seek information may be imposed:

• the restrictions must be "provided by law";
• they may only be imposed for one of the enumerated purposes [to respect the rights or reputations of others, national security, ordre public, and public health or morals]; and
• they must be justified as being "necessary" for that State party for one of those purposes.

► The Committee lists a number of forms of expression that are guaranteed by the Covenant, including

political discourse,

commentary on public affairs,

canvassing,

discussion of human rights,

journalism,

cultural and artistic expression,

teaching, and

religious discourse.

"Commercial advertising" remains bracketed in this list, suggesting a lack of consensus on this point.

► The Committee notes that the Covenant expressly provides that

persons belonging to ethnic, religious or linguistic minorities shall not be denied the right, in community with other members of their group, to use their own language.

► Apropos of WikiLeaks, the Committee noted the requirement that states parties allow for a free press and other media "to comment on public issues without censorship or restraint and to inform public opinion" and the corollary right of the public to receive such information. With no specific reference to WikiLeaks, the Committee again invokes Article 19(3) and notes that

It is not compatible with paragraph 3, for instance, to invoke treason laws to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated information of legitimate public interest.

The Committee reminds states parties that

Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, must be compatible with paragraph 3.

► Given the global controversy over the access to information about reproductive rights (including information about how to protect oneself from sexually-transmitted diseases), it would be useful for the Committee to cross-reference General Comment No. 14 issued in 2000 by the Committee of the International Covenant on Economic, Social and Cultural Rights, which monitors the sister treaty to the ICCPR. There, the IECESC Committee identified the accessibility of information to be fundamental to the right to the highest attainable standard of health as set forth in Article 12 of the ICESCR. In this regard, the Committee observed that:

Information ... accessibility includes the right to seek, receive and impart information and ideas concerning health issues. However, accessibility of information should not impair the right to have personal health data treated with confidentiality.

► The Human Rights Committee particularly noted the high value associated with free expression concerning public figures and institutions and called into question laws addressed to defamation of the head of state or regime. The draft Comment does not specifically condemn criminal defamation laws, but it does note that states parties should avoid "excessively punitive measures and penalties" and "consider decriminalisation of defamation." (See prior post here).
► The Committee warns against monopolistic control of the media "that may be harmful to a diversity of sources and views."
► The Committee notes the risk to freedom of speech rights posed by many counter-terrorism measures and in particular laws aimed at prohibiting the “encouragement of terrorism” and “extremist activity” or the "praising" of terrorist acts. The Committee is silent, however, on material support legislation, e.g., 18 U.S.C. § 2339A in force in the U.S. This legislation criminalizes the provision of "material support or resources" to terrorists, which includes "training" and "expert advice or assistance."
► With regard to hate speech legislation, the Committee determines that many forms of hate speech do not rise to the level of "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence" which must be prohibited by law according to Article 20 of the Covenant, which also calls for prohibitions on propaganda for war.
The Human Rights Interest Group of the American Society of International Law made detailed suggestions on the draft General Comment, which are available here.

Bucking the Trend on Pre-Trial Detention

We've blogged a bit before about the "newest tribunal on the block," the Special Tribunal for Lebanon (building at right) devoted to prosecuting political assassinations and acts of terrorism in Lebanon.
The Tribunal has been convened with Professor Antonio Cassese (below left), former President of the International Criminal Tribunal for the former Yugoslavia and Chair of the International Commission of Inquiry for Darfur, as President (prior posts). It officially started to function on March 1, 2009. (Controversially (prior IntLawGrrls post), many of the other judges have been kept anonymous, putatively for their safety, raising the specter of faceless judges presiding over star chambers. Only four of the judges are Lebanese).

Later in the month of March, the Tribunal's Prosecutor requested the Lebanese authorities to undertake two actions: pursuant to Article 4 of the Tribunal’s Statute, to defer their investigation of the lethal attack against Rafik Hariri; and to hand over court records, any probative evidence, and the names of suspects. Article 4 reflects the system of primacy that characterizes relations between states and the 2 ad hoc international criminal tribunals, and that stands in contrast with the principle of complementarity that governs the International Criminal Court. Article 4 states:

Upon the assumption of office of the Prosecutor, as determined by the Secretary-General, and no later than two months thereafter, the Special Tribunal shall request the national judicial authority seized with the case of the attack against Prime Minister Rafiq Hariri and others to defer to its competence. The Lebanese judicial authority shall refer to the Tribunal the results of the investigation and a copy of the court’s records, if any. Persons detained in connection with the investigation shall be transferred to the custody of the Tribunal.

The Tribunal issued its first ruling in April of 2009, releasing from pre-trial detention four individuals -- Jamil Mohamad Amin El Sayed, Ali Salah El Dine El Hajj, Raymond Fouad Azar, and Mostafa Fehmi Hamdan -- who had been detained by Lebanese authorities prior to the establishment of the Tribunal. The Rules granted the Prosecutor, Canadian Daniel A. Bellemare (left), limited time to bring charges against the four individuals, two of whom are Generals, two others, Brigadier Generals. But Bellemare determined that even with the Lebanese information, he had not yet marshaled sufficient evidence to justify continued detention; thus he requested the release of the four. (Indeed, apparently several witnesses modified their statements, and one key witness retracted his statement incriminating the accused (See here, para. 37)).

In ruling on the Prosecutor's decision to release the individuals, the Special Tribunal (at para. 22, note 7) cited jurisprudence from the Human Rights Committee, the body charged with interpreting the International Covenant on Civil and Political Rights, for the proposition that

pre-trial detention should be the exception.

See Human Rights Committee, Hill v. Spain, Communication No. 525/1993, para. 12.3 (April 2, 1997).

The Special Tribunal for Lebanon concluded that the Prosecution did not make “a manifest error of judgment in exercising his discretionary power” and approved the release. The opinion is available here.

This ruling is notable when compared to the practice before the Extraordinary Chambers in the Courts of Cambodia where -- as we've discussed here, here, and here -- pre-trial detention, even for octogenarians, appears to be the norm.

On networking

Serendipity:
Soon after publishing yesterday's "a little networking can't hurt" post, we received this comment giving a bit of backstory on the news flash, posted by IntLawGrrl Stephanie Farrior earlier this month, that our colleague Dinah Shelton was elected to the Inter-American Commission on Human Rights:

This was an all IntLawGrrls effort -- we hosted a diplomatic campaign luncheon for Dinah at Johns Hopkins SAIS with a number of the Caribbean and Latin American delegates, organized by IL program coordinator Tiffany Basciano, GWU Law '07, to help mobilize the votes. It is key to celebrate the merits of great candidates with some old door-to-door canvassing, to get more women in positions of note in international organizations.

The commenter, our colleague Ruth Wedgwood, not only is Edward B. Burling Professor of International Law and Diplomacy and Director of the International Law and Organizations Program at the Paul H. Nitze School of Advanced International Studies (SAIS), Johns Hopkins University, Washington, D.C., but also is a longtime member of the Human Rights Committee, which monitors state party compliance vel non with the International Covenant on Civil and Political Rights. Ruth's reminder that good "old door-to-door canvassing" is key to success is a point very well taken. Heartfelt thanks!

To Change or Not to Change . . .

. . . one's last name: that is the question asked by almost every woman, but by very few men, upon marriage. Prof. Elizabeth Emens of Columbia Law School (pictured at right) decries this situation in her recent article, Changing Name Changing: Framing Rules and the Future of Marital Names. Carefully describing the scope of the problem and critiquing current social defaults, Emens suggests an alternative to the "Mrs. His Name" convention -- hyphenation by both spouses, and then "biphenation" by the next generation. As a dual hyphenator myself, it's hard to claim impartiality, but I find her arguments thoughtful and compelling. That's all well and good, you might say, but what does this have to do with international law? Emens has tracked down a 2002 decision of the UN Human Rights Committee, Muller and Englehard v. Namibia, finding a violation of Article 26 (prohibiting gender discrimination) of the International Covenant on Civil and Political Rights where a man was subjected to different and substantially more burdensome procedures to change his name after marriage than a woman would be. I found this particularly interesting, given that the clerk who issued our marriage license right here in Media, Pennsylvania, informed us that while I could change my last name as a matter of course, my husband would have to obtain a court order to do so. It's not clear to me whether this actually reflects Pennsylvania law or is a manifestation of what Emens labels "desk-clerk law" -- misinformation provided by officials -- but either way, it's a shame we didn't think to call in the Human Rights Committee. Emens' article also begs for a comparative study of administrative approaches to name changing around the globe. For example, at least under the apartheid government, in South Africa, after a woman was married, her last name was automatically changed to her husband's last name in all official records whether or not she wanted the change to be made. Any other disturbing or inspiring examples out there? (photo credit above left to Matt Brett).