The Future of Human Rights in the Americas: Update on the Inter-American Reform Process

Today, on Human Rights Day, as we mark the 64th anniversary of the adoption of the Universal Declaration of Human Rights, the inter-American human rights system – guardian of the world’s first international human rights agreement – faces an unprecedented threat to its independence and authority.

The Inter-American Commission on Human Rights – which oversees implementation of the American Declaration of the Rights and Duties of Man, adopted in April, 1948, eight months prior to the Universal Declaration – is undergoing a state-initiated “reform” process that may lead to controversial changes in the Commission's practices and procedures, without the consent of the Commission.
As IntLawGrrl Alexandra Harrington posted in February, since it came into existence in 1960, the Inter-American Commission has promoted and protected human rights in the 35 member states of the Organization of American States. It does so through reporting, country visits, precautionary measures, and the individual complaints mechanism. The Commission's exercise of its functions has motivated criticism and objections in recent years from some states that disagreed with specific decisions – as have Ecuador, Bolivia, Brazil, and Peru – or accused it of bias – as has Venezuela.
In June of 2011, the OAS Permanent Council created a Special Working Group with a mandate to study the Commission’s work and propose any reforms deemed necessary. The Special Working Group’s proposals, which the OAS Permanent Council approved this past January, focused on both the Commission’s institutional practices and its substantive mandate.
Among the most controversial proposed reforms were those that would:
► Restrict the Commission’s discretion in deciding requests for precautionary measures,
► Significantly alter Chapter IV of the Commission’s Annual Report, in which it highlights countries with particularly troublesome human rights practices,
► Reduce the autonomy of the Special Rapporteur on Freedom of Expression, and
► Impose additional restrictions on the processing of individual complaints in ways that could favor states at the expense of victims.
Civil society has criticized the proposed reforms, and the reform process itself, as lacking in transparency and input from advocates and victims.
A joint statement coordinated by CEJIL, the Center for Justice and International Law, and signed by over 90 organizations, called on the OAS and its individual member states to ensure that the process is truly aimed at strengthening the inter-American system and includes the input of advocates and victims. Representatives of nongovernmental organizations, academia, and the judiciary have also signed on to the “Bogota Declaration,” which echoes this call.
A politically motivated, state-imposed reform of the Commission’s authority and procedures is a unique and pressing cause for concern to all those invested in the protection of human rights in the Americas.
In the words of the Commission's chair, José de Jesús Orozco:

On September 8

On this day in ...

... 1951, delegates from 4 dozen countries signed the Treaty of Peace with Japan, also known as the San Francisco Peace Treaty in recognition of the city where it was signed. (credit for photo of Japanese Prime Minister Shigeru Yoshida signing at the War Memorial Opera House, as members of his delegation look on) The treaty began with Japan's promise "to apply for membership in the United Nations and in all circumstances to conform to the principles of the Charter of the United Nations," signed in the same city 6 years earlier, and further "to strive to realize the objectives of the Universal Declaration of Human Rights" that states then members of the U.N. General Assembly approved in 1948. The treaty brought to a formal end the Pacific Rim aspect of World War II. It marked too the start of a new, cooperative relationship between, in particular, Japan and the United States.

(Prior September 8 posts are here, here, here, here, and here.)

The Right to Food, Obesity and Food Systems

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

On Tuesday, the Special Rapporteur on the Right to Food, Olivier De Schutter, presented to the United Nations Human Rights Council a groundbreaking report in which he uses the right to food to address issues of obesity and non-communicable diseases. Traditionally, the focus of the right to food's adequacy dimension has been on hunger and malnutrition, and this has been applied to programming and advocacy to address famines, to increase agricultural productivity, and to dispute agricultural trade agreements.
In his March 6, 2012 report, De Schutter unveils what he describes as the “triple challenge.” He identifies three problems caused by current food systems: (1) food systems are directed only at increasing agricultural productivity but not sustainability; (2) inadequate diets cause undernutrition and micronutrient deficiency; and (3) inadequate diets cause obesity and non-communicable disease. In this report, De Schutter links these three challenges to the adequacy element of the right to food and calls for a massive reform of the current food system to address them.International law recognizes the right to food in several instruments.
The right to food was first articulated in Article 25 of the Universal Declaration of Human Rights (UDHR), which states that:

[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food …

The International Convention on Economic, Social and Cultural Rights (ICESCR) reiterates this right in Article 11, which also recognizes the right of everyone to be free from hunger.
In General Comment 12, the Committee on Economic, Social and Cultural Rights (CESCR)defines the elements of the right to food as availability, accessibility, and adequacy. Adequate food means food in quality and quantity that is (1) sufficient to satisfy dietary needs, (b) both consumer and culturally acceptable, and (3) available both for present and future generations. Therefore, the adequacy dimension of the right to food incorporates issues of food production sustainability as well as dietary considerations.

Two years after the earthquake, members of Haitian civil society want human rights respected

(Our thanks to IntLawGrrls for the opportunity to contribute this introductory post)

On the two-year anniversary of the devastating January 12, 2010, earthquake in Haiti, conditions in the remaining 800 earthquake displacement camps are deteriorating.
The country faces the worst cholera epidemic in the world, as Amy Senier's post above details. Women and girls living in camps fear for their safety as they search for food, water and latrines in the day and as they fall asleep at night.
For two years now, Haitians have been urging their government and the international community to view earthquake survivors as rights holders, not charity cases, and to integrate a rights-based approach to recovery. Instead, Haitians at all levels have found themselves left out of the decision-making processes on aid distribution – from top government officials, overwhelmed by the “republic of NGOs” operating in their country, to the communities left homeless by the earthquake and struggling to survive.
A coalition of 57 grassroots groups, internally displaced persons camps, nongovernmental organizations, and academic institutions took their grievances against the Haitian government and the international community to the United Nations Human Rights Council on October 13, 2011, when Haiti was reviewed under the Universal Periodic Review.
Established in 2006, the Universal Periodic Review is a process that all UN member countries undergo every four years, during which the Council reviews each country’s human rights record in light of its obligations under the UN Charter, the Universal Declaration of Human Rights, other human rights instruments, and the country’s own stated commitments. (Prior IntLawGrrls posts.) Haiti’s review was postponed due to the earthquake, and it was the last country to be reviewed in the Universal Periodic Review’s four-year cycle.
In preparation for the October hearing in Geneva, Switzerland, the coalition, with the help of the Institute for Justice & Democracy in Haiti and its Haitian affiliate, the Bureau des Avocats Internationaux, submitted thirteen written reports to the Human Rights Council on issues ranging from violations of the right to housing, violence against women and prison conditions to the responsibility to implement a rights-based approach throughout Haiti’s rebuilding after the earthquake. Collectively, the reports made 147 recommendations to the Government of Haiti and members of the international community active in Haiti on concrete steps they should take to improve human rights over the next four years, when Haiti will be reviewed under the Universal Periodic Review again.
Though influence of the final government recommendations is important, one of the primary goals of the Universal Periodic Review work has been to foster sustained grassroots advocacy.

Guantánamo 10 Years On and the Future of Indefinite Detention

Today, January 11, 2012, marks the tenth year of existence of the detention center at the U.S. Naval Base at Guantánamo Bay, Cuba. Ten years ago, twenty men arrived there and were held in Camp X-Ray, a temporary camp of open-air 6’x8’ cells made of chain link fence. This first group was considered so dangerous they were described by then-Joint Chiefs of Staff, General Richard Myers, as being willing to ''gnaw hydraulic lines in the back of a C-17 to bring it down.''
Within months, hundreds more men arrived blindfolded and in shackles and, at its height, Guantanamo housed 779 men. (Prior IntLawGrrls posts) Over the years, almost 600 men have been released, including most of those first-arrival detainees, without ever being charged or tried with any crime.
Today, 171 men remain imprisoned there, largely cut off from their families and communities, with no hope of ever going home.
Having represented Guantánamo detainees for almost ten years, I feel deep and utter disappointment in writing this blog, as I was hopeful my post last year at this time would be the final say on GTMO anniversaries. There is not enough room here to convey the myriad of legal and policy developments and human events – positive, negative, uplifting and tragic that have occurred over the last ten years. Entire books have been written about the subject. Indeed, you can read about my experiences in my memoir, Justice at Guantánamo: One Woman's Odyssey and Her Crusade for Human Rights (2009) to learn about the first Supreme Court case and the early years at Guantánamo. (prior post)
In reflecting over the last decade, let me quickly highlight some of the salient points:
► First, it is a known fact that many of the men at Guantánamo were tortured and abused. Reports, such as those by the CIA Inspector General and submitted to the US Senate Armed Services Committee confirm not only that these human rights violations occurred but that they were done at the behest of American officials, many in high-level positions in the Bush Administration.
► Second, as mentioned, most of the men who have been through Guantánamo, including those still there, were never charged with any crime. In 2006, Seton Hall Law School produced a revealing report, based on US Department of Defense data, showing that less than 10% were considered to be Al-Qaeda and roughly half of the men had never committed a hostile act toward the United States.

State responsibility & health

On my recent visit to Amsterdam, a tour guide delivered a cliché dig:
"Here in the Netherlands, we have access to excellent health care," he told the multinational gaggle of tourists following him about the city. Then, looking at me, he added, "Sorry about that, United States."
The comment pointed to a longstanding difference in views of a government's responsibility for the health of its people. In much of the developed world -- Canada and European countries, for example -- the state long has guaranteed a baseline of adequate health care. That political decision reflects a principle articulated more than a half-century ago in the 1948 Universal Declaration of Human Rights, a document that is informed by views on human rights and human security that were mainstream in mid-20th C. America, as I've written here. Article 25(1) of the Universal Declaration states:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

Article 12(1) of the 1966 International Covenant on Economic, Social and Cultural Rights, moreover, provides that its

States Parties ... recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

The United States is not party to the Covenant, however, and claims of an affirmative state duty seldom have won much acceptance Stateside. (But see here.) A notable exception was the inclusion of a right to health care in the 2008 Democratic Party platform. That plank helped to produce "President Obama's signature legislative achievement," as The New York Times aptly called it; that is, the Patient Protection and Affordable Care Act of 2010. (credit for photo of Obama signing the health care statute)
The Act requires everyone in the United States to obtain health insurance by 2014; noncompliance carries a tax penalty. This minimum coverage mandate is the linchpin of a broad-based coverage program. It promises insurers a pool of healthy payers who can help to subsidize the less healthy -- even persons who join the pool with pre-existing medical conditions.
This is evident in cases to be argued before the U.S. Supreme Court, over the course of 5-1/2 hours, on a June 2012 day yet to be set. (credit for above right photo of Supreme Court building)
► The merits question in Case No. 11-398, Department of Health and Human Services v. Florida, is "[w]hether Congress had the power under Article I of the Constitution to enact the minimum coverage provision." (Questions about the Court's authority and the Act's severability also will be argued, as detailed here.)
► Meanwhile, in Case No. 11-400, Florida v. Department of Health and Human Services, more than 2 dozen constituent states asked the Court to decide whether "Congress exceed[s] its enumerated powers and violate[s] basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program"; that is, the Medicaid program that provides care for America's poor.
Answer to these questions invites consideration of numerous clauses of Article I § 8 of the Constitution, empowering Congress' to, inter alia: "pay the Debts and provide for the ... general Welfare of the United States"; "regulate Commerce ... among the several States"; and "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers."
At least for the international-law-trained lawyer, it also invites consideration of documents articulating a right to health. Given the dearth of overt consultation of foreign law after some criticized the Court's reasoning in Roper v. Simmons (2005), however, it seems unlikely that the expected dozens of amicus briefs will dwell on that.
Yet the question of a right to health will rest just beneath the surface of much argument about the powers and duties of government -- not only the government of the United States, but also those of its constituent states.

Civil unrest in Egypt & the United States

News outlets have released a number of distressing reports and disturbing images over the past week from protests in the United States and Egypt.
► In the past several days, police in California and New York have allegedly beaten protesters participating in the Occupy Wall Street movement and doused them in pepper spray. (photo credit)
► In Egypt, where citizens have taken to Tahrir Square to demand a return to civilian rule, army soldiers and policy have allegedly fired teargas, rubber-coated steel bullets, and "birdshot" pellet cartridges into crowds.
In October of last year, following a similar wave of civil unrest throughout the Middle East and North Africa, the UN Human Rights Council passed Resolution 15/21 on the rights to freedom of peaceful assembly and of association. The resolution recalls that provisions in numerous international human rights instruments provide for freedom of assembly and of association. These include but are not limited to:

• Universal Declaration on Human Rights, art. 20(1);
  
• International Covenant on Civil and Political Rights, arts. 21 and 22;
  
• International Convention on the Elimination of All Forms of Racial Discrimination , art. 5(d); and
  
• African Charter on Human and Peoples' Rights, art. 10(1).

The Human Rights Council used Resolution 15/21 to call on

'States to respect and fully protect the rights of all individuals to assemble peacefully and associate freely'

and to

'take all necessary measures to ensure that any restrictions on the free exercise of the rights to freedom of peaceful assembly and of association are in accordance with their obligations under international human rights law.'

While the resolution recognizes that the freedom of peaceful assembly and of association

'can be subject to certain restrictions, which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others,'

these limitations on the freedom of assembly have been strictly interpreted.
For example, on several occasions, the U.N. Human Rights Committee has interpreted ordinances that require advance notice of public meetings, as well as the dispersal of peaceful demonstrations with excessive force, as restrictions on the freedom of assembly guaranteed under the ICCPR.
In addition to affirming the freedom of assembly and of association, Resolution 15/21 also called for the creation of a position of a new special rapporteur who, among other tasks, is charged with investigating violations of the rights of association and of assembly and reporting on such violations to the Council and to the U.N. High Commissioner on Human Rights. In a statement applauding the creation of this position, U.S. Secretary of State Hillary Rodham Clinton said:

'An active and vibrant civil society is one of the essential elements of a free nation, and I applaud the action by the international community today to take up the President’s call to stand firmly on the side of human rights and civil society and strengthen the ability of civil society activists around the world to bring about change in their countries. The United States will continue our leading effort to expand respect for this fundamental freedom for civil society members and other individuals all over the world.'

In March 2011, the former Chairman of Kenya’s National Human Rights Commission, Maina Kiai, was appointed the United Nations' Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association. Special Rapporteur Kiai has already requested that he be invited to visit Egypt to examine in detail the enjoyment of the rights to freedom of peaceful assembly and of association, to identify any problems and to make recommendations on how these could be resolved.
As of yet, no such request has been made to visit the United States.

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.

On September 7

On this day in ...
... 1955, the Congress of Peru passed a law that recognized all women of "legal age, who could read and write" as citizens -- a formal recognition that made women eligible to vote in Peru for the 1st time. The Congress' website credits the international adoption in 1948 of the Universal Declaration of Human Rights with inspiring in Peru "new ideas about the equality of rights and obligations of people of both sexes," including that "women are recognized as entitled to full enjoyment of the right of suffrage and to participate as candidates in elections." Following the enactment of Peruvian Law N° 12391 on this day, the number of voters doubled, and in elections the following year, 1 woman was elected to the Senate and 7 to the House of Representatives. (credit for 1956 photo of Peruvian women at ballot box)

(Prior September 7 posts are here, here, here, and here.)

Honoring labor (& leisure)

On this day set aside in the United States to honor labor (prior posts here, here, here, and here), IntLawGrrls reprints worker-protection guarantees set out more than 6 decades ago in the 1948 Universal Declaration of Human Rights.
First, there's Article 23, which states:

(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.

And then Article 24, the favorite of many a worker around the world:

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Heartfelt wishes for a restful and leisurely Labor Day.

On February 20

On this day in ...

... 1976 (35 years ago today), Dr. René Cassin died in Paris, 88 years after his birth in Bayonne, France. Having earned his Ph.D. in law from the University of Aix-en-Provence in 1914, Cassin was wounded as an infantryman during World War I, then began a career in the teaching and promotion of human rights and humanitarian law. Among his many posts: delegate to the League of Nations, chief legal adviser during World War II to de Gaulle's French government in exile, President of the Permanent Court of Arbitration, and President of the European Court of Human Rights. Central to his legacy was his service as the 1st vice chair of the U.N. Commission on Human Rights: along with Chair Eleanor Roosevelt and others, Cassin was instrumental in the drafting and promulgation of the 1948 Universal Declaration of Human Rights, an instrument that he contended "had not just moral, but legal weight" within the system established by the Charter of the United Nations:

It was the development of the Charter which had brought human rights within the scope of positive international law. That being so, it could not be said that the Declaration was a purely theoretical instrument. It was only a potential instrument; but that fact in no way detracted from the binding force of the provisions of the Charter.

(credit for 1947 U.N. photo of Cassin, right, with Roosevelt) Winner of the 1968 Nobel Peace Prize, Cassin is interred in the Panthéon in Paris.

(Prior February 20 posts are here, here, here, and here.)

Child marriage, abroad & at home

Pending in the U.S. House of Representatives is a bill to combat child marriage around world.
The International Protecting Girls by Preventing Child Marriage Act of 2010 (S. 987) unanimously passed the Senate 11 days ago. The bill finds, inter alia:

Child marriage, also known as 'forced marriage' or 'early marriage', is a harmful traditional practice that deprives girls of their dignity and human rights.

and:

Child marriage as a traditional practice, as well as through coercion or force, is a violation of article 16 of the Universal Declaration of Human Rights, which states, 'Marriage shall be entered into only with the free and full consent of intending spouses'.

Citing the frequency with which under-18 girls (girls in particular, though elsewhere the bill mentions boys, too) marry, in countries like "Niger, Chad, Mali, Bangladesh, Guinea, the Central African Republic, Mozambique, Burkina Faso, and Nepal," the bill would:
► Authorize the U.S. President to work with "multilateral, nongovernmental, and faith-based organizations" to develop a child-marriage-prevention strategy that includes "education, health, income generation, changing social norms, human rights, and democracy building"; and
► Require that information about the nature and prevalence of child marriage be included in the annual Country Reports published by the U.S. Department of State.
No word on when such legislation might be taken up in the House.
Movement in that direction received a notable boost last week, in a Washington Post op-ed published jointly by Mary Robinson (right), formerly the President of Ireland and the U.N. High Commissioner for Human Rights, and Desmond Tutu, Archbishop Emeritus of Cape Town, South Africa, and winner of the 1984 Nobel Peace Prize. Members of The Elders group established by former the South African President and Nobel Peace Prizewinner, the 2 wrote:

As members of an independent group of leaders who were asked by Nelson Mandela to use our influence to address major causes of human suffering, we have never been involved in supporting a specific piece of legislation before, but we believe that investing in efforts to prevent child marriage is critical to global development and the achievement of the U.N. Millennium Development Goals. We applaud the Senate for passing this forward-looking legislation and urge the House of Representatives to follow suit.

Against the backdrop of these recent legislative efforts, an item discovered in the Library of Congress archives jumped out.
A captivating account of early 20th C. "women's editions" published by the mainstream U.S. press included the Louisville Courier-Journal clipping at left, entitled "Black List of States". Listed was the legal limit "at which fathers, brothers, and husbands have placed the age at which a little girl may consent to her ruin" -- that is, the age at which she could become a child bride in the United States.
In all but 3 states (Colorado, Kansas, and Wyoming), the age was under 18.
The youngest age of legal consent?
7 years, in Delaware.
The date?
1895, just 53 years before adoption of the Universal Declaration to which the pending legislation refers.

Human Rights Defenders: In the frontlines

Dora “Alicia” Recinos Sorto (left) of El Salvador was shot dead in November 2009, while on her way home from doing laundry at a nearby river. She was eight months pregnant and holding her two-year-old child when she was killed. She had been active in opposing a mining operation in her community due to concerns about the mine's health and environmental impacts. Attacks on environmental activists throughout Latin America are on the increase, according to the Center for International Environmental Law (CIEL).
On 25 October 2010, the Inter-American Commission on Human Rights held a hearing on the situation faced by environmental activists in Central America. CIEL provides background information, as well as a link to a webcast of the hearing, here.
People who work to defend human rights are subjected to killing, death threats, torture, kidnapping, arbitrary arrest and detention, prosecution, defamation, burglary, and more. This year's theme for Human Rights Day -- December 10, the anniversary of the adoption of the Universal Declaration of Human Rights (prior IntLawGrrls posts) -- is human rights defenders who act to end discrimination.
Human rights defenders are targeted not only by governments but also by private individuals and entities. In her August 2010 report, UN Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya (right) focused on state obligations under international law with respect to human rights violations against defenders by non-state actors. (photo credit)
People working to end rights abuses targeting gay men, lesbians, transgender and bisexual individuals are among those who work at great personal risk. On Human Rights Day this year, in the ECOSOC Chamber of the United Nations in New York, the Permanent Missions of Argentina, Belgium, Brazil, Croatia, France, Gabon, the Netherlands, New Zealand, Norway, The United States of America and the Delegation of the European Union will hold a High Level Panel Discussion on Ending Violence and Criminal Sanctions on the basis of Sexual Orientation and Gender Identity. UN Secretary-General Ban Ki-moon will deliver opening remarks and Archbishop Emeritus Desmond Tutu will deliver a special video address.
The Association for Women in Development (AWID), in collaboration with the Women Human Rights Defenders International Coalition, recently issued a new reference tool, List of Materials and Resources for Women Human Rights Defenders, which lists:

• research materials dealing with the security and protection of defenders;
• manuals on how to document and monitor violations of women’s rights;
• information on how to conduct trial observations;
• manuals on the rights and mechanisms available to women human rights defenders at risk;
• materials that address specific themes particularly relevant to women defenders, such as sexual orientation, religious fundamentalisms and conflict.
  

On December 6

On this day in ...
... 1949, while staying at his "winter White House" in Key West, Florida (left), U.S. President Harry S. Truman proclaimed United Nations Human Rights Day and called for it to be observed 4 days hence, and on every December 10 to follow. (photo credit) The date was chosen to mark the adoption of the Universal Declaration of Human Rights on December 10, 1948.

(Prior December 6 posts are here, here, and here.)

No Alien Tort Liability for Corporations?

A serious, perhaps, mortal blow has been dealt to the Alien Tort Statute by the U.S. Court of Appeals for the Second Circuit. The ATS creates federal jurisdiction over

any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

In its opinion in Kiobel v. Royal Dutch Petroleum Co., however, the Second Circuit dramatically narrowed the scope of the ATS by ruling that it did not apply to "juridical persons," meaning corporations.

Since the groundbreaking judgment in Filártiga v. Peña-Irala (2d Cir. 1980), which was brought by my dearly-missed colleague Rhonda Copelon and the Center for Constitutional Rights, the ATS has offered victims of human rights abuses the prospect of access to U.S. courts.

In Kiobel, the oil company defendants stood accused of aiding and abetting the Nigerian government's campaign of human rights abuses in the Niger Delta, Nigeria's oil-producing region. The litany of human rights violations at issue in the case included allegations of torture, arbitrary detention, and crimes against humanity. Unfortunately, these allegations can no longer be heard in U.S.courts. The Second Circuit ruled on September 17th that corporations cannot be sued under the Alien Tort Statute because they are “juridical” entities rather than natural persons. Should this ruling be adopted throughout the U.S. court system, it would gut the scope of the ATS, making it very likely that corporations participating in human rights abuses will escape any accountability for their conduct.

The Niger Delta is home to 31 million people. (map credit) Since oil exploration began some 50 years ago, the region has suffered an Exxon Valdez-sized oil spill every year. As you can imagine, these spills have devastated the local population. In 2009 Amnesty International reported that the oil industry in the Niger Delta of Nigeria

has brought impoverishment, conflict, human rights abuses and despair to the majority of the people in the oil-producing areas.

Local populations have failed to benefit from the wealth generated by oil production, even as they suffer its environmental consequences. Before being despoiled by oil pollution, the Niger Delta was one of the most important wetlands in the world. BP's oil spill in the Gulf of Mexico (see previous Intlawgrrl posts here, here and here) focused public attention, albeit briefly, on the ongoing environmental devastation in the Niger Delta. (You can hear an interview I did with WBEZ Chicago Public Radio’s Worldview Program on this topic here.)

Just last year, Shell Oil settled an ATS case alleging the company’s complicity in the hanging deaths of nine Ogoni activists, including the world-renown poet Ken Siro Wiwa. Cases alleging similar human rights abuses in oil production have been brought against Talisman Energy for its activities in the Sudan, Unocal for its activities in Burma, and Chevron for its activities in Ecuador. (News on that last suit here.)

Second Circuit Judge José A. Cabranes interpreted international law precedents extremely narrowly in order to concluded that, throughout history,

the principle of individual liability for violations of international law has been limited to natural persons—not ‘juridical' persons such as corporations.

This despite the fact that the Universal Declaration of Human Rights explicitly applies to "every individual and every organ of society." Over the objections of Judge Pierre N. Leval, Judge Cabranes, joined by Judge Dennis Jacobs concluded that that U.S. courts lacked jurisdiction over ATS claims brought against corporate entities.

Given that oil production often takes place in countries without robust judicial systems, this cramped ruling virtually assures that victims will have no avenue of redress.

The United States consumes a quarter of the world’s oil—10% of which comes from Nigeria. That makes the United States the largest purchaser of oil produced in the Niger Delta. Our participation as end-consumers makes us unwitting collaborators to abuse in Nigeria and around the world. We surely have an interest in giving victims of these human rights abuses a forum in which to seek justice.

On August 24

On this day in ...
... 2004, reversing a decision by the intermediate court of appeals, the Supreme Court of Argentina ruled 5-3 that statutes of limitation do not apply to charges of crimes against humanity. The ruling in Arancibia Clavel, Enrique Lautaro s/ homicidio calificado y asociación ilícita y otros arose out of an appeal of a trial court's judgment convicting an agent of DINA, the secret police that operated in Argentine and Chile during the regime of former Chilean President Augusto Pinochet, with having committed homicide by use of explosives and for participation in a criminal association. Among the instruments that the Argentinian high court (above right) cited in its ruling were the 1948 Universal Declaration of Human Rights, the 1998 Rome Statute of the International Criminal Court, and the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. (photo credit)

(Prior August 24 posts are here, here, and here.)

How Ratifying the Convention on the Rights of the Child Would Affect Children in the United States

A number of human rights treaties have been adopted by the international community to further develop and expand on the rights enumerated in the Universal Declaration of Human Rights. Some deal with substantive rights and some focus on the rights of specific groups. One of the treaties addressing the rights of a specific group is the Convention on the Rights of the Child (CRC), which was finalized in 1989 following a 10 year drafting process. It entered into force in 1990 – the fastest treaty to enter into force after being opened for signature. Now every country in the world is party to that treaty except the United States and Somalia, though the latter country recently indicated its intention to ratify it.
The United States has ratified some human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and the Convention on the Elimination of all Forms of Racial Discrimination (CERD). It is even party to the Optional Protocol to the CRC on Child Soldiers. That treaty prohibits parties from having soldiers under the age of 18 in their armed forces and also limits recruitment of child soldiers. The Optional Protocol has recently been used to support the cities of Arcata and Eureka, California in a court challenge by the U.S. Department of Defense to their ordinances forbidding military recruiters from going into the schools to recruit boys and girls under 18 years of age.
The CRC itself would specifically provide rights to persons under 18 years of age in the United States, just as the Optional Protocol does. While children in the United States have national laws protecting them, some of the protections are broader and more specific under the CRC. Following are some examples:
- The anti-discrimination language provides for protection of all rights in the treaty “without discrimination of any kind, irrespective of the child’s or his or her parents’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.” This language is much broader than the protections provided under the U.S. Constitution and could be argued to prohibit any arbitrary discrimination.
- Provides for economic, social and cultural rights to the maximum extent of available resources, including rights to health care, a standard of living adequate for the child’s physical, mental, spiritual, moral, and social development, and education, including higher education on the basis of capacity. States are required to take measures to encourage regular attendance and to reduce drop-out rates.
- It provides for the rights to life, name, and nationality.
- It prohibits separation from parents unless necessary for the best interests of the child; provides for right to maintain the relationship with the parents even if separated.
- It provides for the right to form views and opinions, as well as freedom of expression, thought, conscience and religion. In that regard, it provides for access to information from a diversity of national and international sources.
- It provides for the right to protection from abuse.
- It provides for protections in adoptions.
- It provides for protection from sexual exploitation and abuse.

Perhaps the biggest source of additional protections for children comes in the area of juvenile justice. Article 37 provides for protection from torture or other cruel, inhuman or degrading treatment or punishment – a broader standard than the prohibition of cruel and unusual punishment in the 8th Amendment to the U.S. Constitution.
Article 37 also prohibits the use of the death penalty and life without parole sentences for persons who were under 18 years of age at the time of the commission of the crime. The United States was one of the few nations that allowed the death penalty for juvenile offenders until 2005, when the U.S. Supreme Court held that the penalty was a disproportionate punishment under the 8th Amendment. In doing so, it referred to the international treaties prohibiting it, including the CRC.
While 10 countries continue to allow for juvenile life without parole under their national law, the United States is the only country that is known to have juvenile offenders serving such a sentence. Approximately 2500 persons are known to be serving that sentence in the United States. The U.S. Supreme Court recently heard the case of two such persons serving that sentence in Florida for non-homicide crimes. (IntLawGrrls have blogged on the case and the issue previously here.) There are approximately 107 persons serving that sentence for non-homicide crimes. Again, the international standards and practice have been cited to the court in a challenge to the constitutionality of such sentences.
Other juvenile justice rights in the CRC include:
- Detention or imprisonment should only be of last resort.
- Detained children should be treated with dignity.
- Detained children should be allowed to maintain contact with their families.
- Children who have been charged with a crime should be provided with legal counsel.
- The penal law should take into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
- The child should be presumed innocent until proven guilty, cannot be forced to give testimony or confess guilt, should be provided with an interpreter.
- The child should be separated from adults when detained or imprisoned.

While some of these rights are provided under the U.S. Constitution, others are not. Thus, children in the United States would be provided with additional protections if the United States became party to the CRC.

Commemorating the Universal Declaration of Human Rights

Human Rights Day commemorates the adoption by the UN General Assembly of the Universal Declaration of Human Rights (UDHR) on 10 December 1948. This photo (at left), taken on Human Rights Day in 1950, shows Eleanor Roosevelt, Chair of the UN Commission on Human Rights, with famed contralto Marian Anderson, and president of the fifth session of the UN General Assembly Nasrollah Entezam, at the Metropolitan Opera House in New York, during the intermission of the "Special Program of commemoration of the adoption by the United Nations of the Universal Declaration of Human Rights," at which Marian Anderson performed.
The focus of this year's Human Rights Day is non-discrimination. Discrimination is an attack on the very notion of human rights – a denial that everyone is equal in dignity and worth. The drafters of the Universal Declaration of Human Rights stated explicitly that they considered the non-discrimination principle to be the basis of the Declaration.
Video footage and photographs of the drafting and adoption of the UDHR, along with links to some of the drafting documents, are now available on-line through the UN Audiovisual Library of International Law. Video footage includes:

• 9 June 1947: Establishment of the Commission on Human Rights drafting committee on the Universal Declaration of Human Rights; video shows statements by Eleanor Roosevelt (USA) and William Hodgson (Australia).
• 23 September 1948: Discussion of the UDHR in the Third Session of the UN General Assembly; video shows statements by George Marshall (USA) and Zygmunt Modzelewski (Poland).
• 9-10 December 1948: Discussion of the UDHR in the Third Session of the UN General Assembly; video shows statements by Charles Malik (Lebanon), Eleanor Roosevelt (USA), Hernan Santa Cruz (Chile), René Cassin (France), and Zdonek Augenthaler (Czechoslovakia).
• 10 December 1948: Video footage of the adoption of the Universal Declaration of Human Rights, showing statements by Ernest Davies (United Kingdom) and Campos Ortiz (Mexico); the roll-call vote; and the statement by UNGA President H. V. Evatt (Australia) after the vote.

Cruelty cognizant

Tucked in the recent ASIL Insight by our colleague, Vanderbilt’s Ingrid Wuerth, is an intriguing observation:
There’s a circuit split on whether victims of cruel, inhuman and degrading treatment may recover under the Alien Tort Statute.
Such mistreatment has long been forbidden in international instruments:
► The longstanding ban in international humanitarian law is evident in Common Article 3 of the Geneva Conventions of 1949, which "prohibit[s] at any time and in any place whatsoever ... "outrages upon personal dignity, in particular humiliating and degrading treatment;" those treaties further provide that such mistreatment of protected persons during armed conflict may constitute a grave breach punishable as a war crime.
► In international human rights law, an express ban appeared as early as the spring of 1948, when the American Declaration of the Rights and Duties of Man affirmed in Article XXVI:

Every person accused of an offense has the right ... not to receive cruel, infamous or unusual punishment.

At year’s end, the Universal Declaration of Human Rights posited an even broader proscription in Article 5:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

That proscription of what’s come to be called CIDT became binding international law when, as Article 7 of the International Covenant on Civil and Political Rights, it entered into force in 1976.
Similar formulations appear in other binding treaties, among them Article 5 of the African Charter on Human and Peoples’ Rights, Article 5 of the American Convention on Human Rights, and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
And yet it’s an open question whether CIDT is cognizable under the Alien Tort Statute. That 18th century statute, about which we've posted frequently, states:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

The U.S. Court of Appeals for the 2d Circuit recently ruled that CIDT is cognizable in the Wiwa v. Shell Petroleum Dev. Co. of Nigeria litigation that’s the focus of Wuerth’s excellent Insight (not to mention these prior IntLawGrrls posts). But the 11th Circuit had held to the contrary in Aldana v. Del Monte Fresh Produce (2005).
At issue, Wuerth (above right) explains, is the Supreme Court’s statement in Sosa v. Alvarez-Machain (2004) that only claims possessing "‘definite content and acceptance among civilized nations’" are actionable. A court’s view of whether CIDT meets that standard seems to hinge on whether treaty provisions deemed non-self-executing – like that in the ICCPR, a treaty to which the United States is party – are nonetheless evidence of customary international law; to use the statute’s term, "the law of nations." The 2d Circuit says yes, the 11th Circuit says no.
This is no minor circuit split.

Alien Tort suits arising out of post-9/11 detention already have been filed, and more are certain to follow. Allegations of torture surely would meet the Sosa standard; however, given the United States’ recent efforts to ascribe a very narrow definition to "torture," plaintiffs may have an uphill battle proving that their treatment fits meets the standard set by a court. A lesser-included finding of "cruel inhuman or degrading treatment" would seem the logical default. If that finding is unavailable – for the reason that CIDT is not cognizable – plaintiffs will have alleged violation of a right that lacks a federal remedy.

Internationalized judging in Kosovo

(My thanks to IntLawGrrls for the invitation to contribute this guest post on my service as an international judge in Kosovo)

When NATO’s 1999 intervention in Kosovo ended with the United Nations assuming interim civilian administration in that province of Serbia, my only understanding of the events was intellectual, gleaned from reading the morning newspaper before I began my day as a judge in Minnesota. Yet three years later, I found myself on a plane bound for Kosovo to help rebuild a destroyed justice system.
On arrival (left), I was posted to a city called Peć/Peja. Or is it Peja/Peć? These are two names, one Serbian and one Albanian, and the order in which you say them supposedly signifies a bias or preference.
It would be difficult being an impartial international judge in Kosovo, where every move was scrutinized.
The foundation for my work was laid by another woman, in the aftermath of another war. The woman was Eleanor Roosevelt, who played an instrumental role in drafting the 1948 Universal Declaration of Human Rights. It is worth noting that although the U.N. General Assembly voted unanimously in favor, certain countries abstained, taking exception with UDHR’s guarantee of freedom in marriage. I would encounter the force of that exception a half-century later.
I took part in “internationalized justice”: in contrast with ad hoc bodies such as the International Criminal Tribunal for the former Yugoslavia, we international judges sat in Kosovo’s domestic courts alongside local judges, in the hope of bringing a measure of impartiality to the outcome.
The stories of two women tell much about my experience in Kosovo.
Almost immediately upon arrival in Pec/Peja, I came to know the 1st woman, Haxjere Sahiti.
She had been married on Sunday and murdered on Monday. The 20-year-old Kosovar Albanian woman died from seven gunshots, in her family’s living room. The killer was her brother; the murder was witnessed by her mother and brother.
Her crime was supposedly not being a virgin.
Under traditional Albanian cultural code, a bride may be returned to her family if she “is not as she should be” on her wedding night – or the groom may kill her, with a bullet traditionally given him by the bride’s father.
Upon exhumation of Haxjere’s body, it was determined that she had been a virgin, after all.
The international police, with whom I worked, investigated this crime and tried to find the killer. But no one wanted to give information. To talk to police or the courts would violate notions of maintaining family “honor.” To do so would mean that the potential witness (or their family) would “pay” – with their lives – for the information given. Haxjere’s family professed to know nothing.
As an international judge in Kosovo, I was asked to sit on politically sensitive cases – of war crimes, crimes against humanity, ethnically motivated disputes, trafficking in drugs and human beings, genocide. I also acted as an investigative judge – more akin to a prosecutor in the United States – and determined whether sufficient evidence existed to charge someone with a crime. I faced many unconventional obstacles that necessarily exist in a mission environment. With Haxjere Sahiti’s case, I confronted an obstacle new to me – that cultural norms dictate both what a “permissible honor killing” is and the silencing of witnesses.
Yet another obstacle in the case of the 2d woman, Sabahate Tolaj.
Sabahate was 35 years old. She was not married and had no children, and had completed the Aviation School in Sarajevo. During the 1999 war in Kosovo, she had been a member of the Kosovo Liberation Army. Under UNMIK, the United Nations' Mission in Kosovo, Sabahate was a Kosovo Police Service officer in Peja, investigating high-profile murders and referring the investigations to international judges like me. Sabahate and I had numerous conversations and we felt a particular kinship with one another.
One day I asked about her safety. You see, I had bodyguards, and she did not. Sabahate just shrugged and said:

'This is what I do. I enjoy it. And it is the right thing to do. So, I do not worry.'

On November 24, 2003, at 7:45 in the morning, a “drive-by” assassination took place. Sabahate and another officer were killed; the third survived his wounds. After nearly four years of investigations and court hearings – justice comes slowly – the convictions were read out in Peja District Court. Bedri Krasniqi was sentenced to twenty-seven years for double murder; the other accused were acquitted for insufficient evidence.
Sabahate was killed only a couple of months after I returned home. My sadness over her death is still present.
An all-too-familiar postscript: Double murderer escapes Kosovo prison, wire services reported on December 1, 2008, adding, “nine member of the correctional services were held on suspicion that they helped” Sabahate’s killer get away.
My time as an international judge in Kosovo has had a profound impact upon me. In answer to the question often asked of me, here are some of the things I learned:
► To be by myself. In an apartment without reliable heat and electricity, one has time to think.
► How much I cherish my family and friends, at home and in Kosovo. (If you see my husband, tap him on the shoulder and say, “I think she is grateful for all the support you gave her.”)
► International law. If murder was a familiar legal concept to me, war crimes and crimes against humanity were not. Now I am passionate about learning this new body of law.
► Cultural norms can find their way into the courtroom, and have an impact upon guilt or innocence.
► Not everyone wants to reestablish the rule of law. Some will kill innocent police officers toward their end.
► Rendering verdicts was important, but inculcating a belief in the rule of law was more abiding than any one verdict I rendered.
► Each one of us can do our part in advancing the cause of international justice for women, and children and men, and in bringing to life the values of the Universal Declaration of Human Rights.