Universal Declaration of Human Rights

“a single short document of 30 articles that has probably had more impact on mankind than any other document in modern history.”

-- UN High Commissioner for Human Rights Navi Pillay, in her
statement marking the 60th anniversary of the Universal Declaration of Human Rights

Sixty years ago today, the UN General Assembly adopted the Universal Declaration of Human Rights by a vote of 48 in favor, 0 against, and 8 abstentions (the six Soviet bloc states, Saudi Arabia and South Africa).

One summer years ago, as I read through the hundreds of microfiches of the drafting documents of the Universal Declaration of Human Rights for an article on hate speech in international law, I gained new perspectives on the document. I saw how erroneous the common assertion was that economic and social rights were supported by the Soviet bloc but opposed by the West, and how the drafting sessions were used as a forum for calling attention to racial discrimination and lynchings in the United States. The Cold War entered into the drafting sessions. And women delegates pressed for language to ensure that a “universal” declaration of rights would include women in that universe.

Rights for “all men” or “all human beings”?
Article 1 of the Universal Declaration begins: “All human beings are born free and equal in dignity and rights. ” The original drafts, however, began with the phrase “All men.” As Johannes Morsink writes in the excellent account “Women’s Rights in the Universal Declaration” (13 Human Rights Quarterly 229-256 (1991)), a delegate from India, Hansa Mehta (right), cautioned that the term “All men” might be interpreted to exclude women, but Eleanor Roosevelt countered that “the word ‘men’ used in this sense was generally accepted to include all human beings.” It was only through tenacious lobbying by women such as Hansa Mehta and Danish delegate Bodil Begtrup (center in photo at left, in 1948, as Chair of the UN Commission on the Status of Women) – as well as a message from Secretary General Trygve Lie in support of rewording proposed by the Commission on the Status of Women – that the clause was changed to begin “All human beings.”

Omitting equal rights of men and women
The Preamble of the Universal Declaration reiterates the preambular clauses of the United Nations Charter, but in its first drafts, the Declaration omitted one: the Charter’s reaffirmation of the “equal rights of men and women.” Morsink writes that Minerva Bernardino of the Dominican Republic (left, with Eleanor Roosevelt) urged explicit inclusion of equality in the Universal Declaration’s preamble, saying that in some countries the term “everyone” did not necessarily mean every person. Hansa Mehta of India said that the omission of the Charter’s equal rights clause, when the Charter’s other preambular clauses were included, could be interpreted as an intentional omission and lead to discrimination. (Morsink, p.232) The Third Committee voted 32-2 to include reference to the Charter’s reaffirmation of the “equal rights of men and women” in the UDHR’s preamble. Voting against: China and the United States.

Racial discrimination and lynchings in the United States
The drafting sessions of the Universal Declaration of Human Rights served as a forum for bringing attention to the racial discrimination and violations of the right to life that were taking place in the United States. Just a few of several examples:

When the Soviet Union proposed a clause requiring states to punish advocacy of racial, national or religious hostility, Eleanor Roosevelt announced that the US would oppose this proposal, stating that such a law could not be applied in practice. The Soviet representative countered that if no such provision were adopted, practices such as "lynching of negroes would continue."

In the General Assembly the day before adoption of the Universal Declaration, the Ukrainian delegate stated that “in countries the economic structure of which differed from that of the USSR, men spoke of political, national, or racial equality while, on the other hand, they did not hesitate to lynch Negroes, as in the United States . . . .” In a speech in the General Assembly the following day, the delegate from the Byelorussian SSR remarked that the clause guaranteeing freedom of expression “could be cited in its present form by fascist organisations, such as the Ku Klux Klan, to justify their activities.” The Polish delegate said he would have supported the Declaration if, amongst other things, “he had thought that is adoption would ensure that the negroes of Mississippi would have the right to vote.”

Rights – and duties
Although the UDHR contains only one explicit reference to duties, in Article 29, stating that “everyone has duties to the community,” Mrs. Menon of India saw implied reference to duties throughout the declaration. In her speech in the General Assembly the day the Universal Declaration was adopted, she stated: “. . . as Mahatma Gandhi had said, all rights were born of obligations, and no man could claim the right to live unless he fulfilled his duties as a citizen of the world. From the very fact that it proclaimed rights, therefore, the declaration was a declaration of obligations.”

The myth of opposition by the West to economic, social and cultural rights
It is commonly asserted that during the drafting of the Universal Declaration, the inclusion of economic and social rights was supported by the communist states but opposed by the West. The Soviet Union and its allies did point out that the civil and political rights favored by the West were not in fact enjoyed those states due to economic considerations. Just one example, from a speech in the General Assembly during discussion of the draft declaration:

Mr. Manuilsky (Ukrainian SSR): “The laws of many countries guaranteed the freedom of the Press, but, since printing presses and paper were privately owed, that freedom was controlled by the political opinions of the owners.”

For its part, the United States lost no opportunity to emphasize its position that the economic, social and cultural rights in the Declaration did not impose any obligations on a government (see Eleanor Roosevelt’s speech, referenced below). But as is evident from the speeches made on the floor of the UN General Assembly the day before and the day of the adoption of the Universal Declaration, support for economic and social rights came from far and wide, along with the understanding that one cannot truly enjoy one set of rights without the other.

Click here to listen to and read Eleanor Roosevelt’s speech before the UN General Assembly on December 9, 1948 – the day before the historic vote to adopt the Declaration.

Here is a sampling of statements about economic and social rights during discussion in the General Assembly of the draft UDHR on December 9 and 10, 1948:

General Romulo (Philippines): “a traditional declaration of political rights would be insufficient unless buttressed by a declaration of economic and social rights.”

Mr. van Roijen (Netherlands): “the inclusion of social and economic rights constituted a marked improvement over previous declarations.”

Mr. Watt (Australia): “The Australian delegation attached particular importance to articles 23, 24, 25 and 26 of the draft declaration, which dealt with economic and social rights . . . . Those rights flowed from certain provisions which had been incorporated in the [United Nations] Charter on Australia’s suggestion, namely, the provisions of Articles 55 and 56, under which Member States pledged to take . . . action . . . so as to ensure higher standards of living, full employment and universal respect for, and observance of, human rights and fundamental freedoms.”

Mr. Aikman (New Zealand): noted “with satisfaction the place given to economic and social rights. . . . Economic and social rights could give the individual the normal conditions of life which would enable him to experience greater freedom, and in New Zealand it was considered a government function to promote their realization.”

Mrs. Menon (India): “Earlier declarations had not mentioned rights such as the right to equal pay for equal work; the right of mothers and children to social protection, . . . ; the right to education; equality of rights for men and women. Those rights were the expression of a new social order, of true democracy based on social justice.”

Mr. Vasconcellos (Paraguay): "Millions of men [sic] would rejoice to think that they or their descendants would one day enjoy such elementary rights as freedom to move about at will, freedom to choose where they would live, to enjoy the fruits of their labour, to benefit from social and economic security, the right to rest and enjoy leisure . . . ."

Mr. Carrera Andrade (Ecuador): “ . . .the right of man to work and his right to benefit from his leisure, the right to a decent standard of living, and the right to social security. All those rights constituted the real triumph of the twentieth century, and were the foundation for the modern democratic system which believed that social peace depended on the well-being of the individual.”

Migrants’ Rights Are Human Rights … in the U.S.

Migrants are human beings too. That would seem to be self-evident. But both governments and non-state actors often behave as if migrants are mere commodities—to be traded, recruited, trafficked, exploited, pitied, demonized, scapegoated, or expelled as conditions suit. They may be denied fundamental rights like housing, food, health care, or education. If they are women, they may be at risk of new violence even as they attempt to escape violence at home or in conflict situations.

Workers Organizing for their Rights

Today, May 1, is International Workers’ Day. Violations of workers’ rights make all workers even more vulnerable to human trafficking, as noted in this statement by OSCE Special Representative and Coordinator for Combating Trafficking in Human Beings, Maria Grazia Giammarinaro (photo, right). In response to xenophobia and racial, ethnic, linguistic, and religious discrimination against noncitizen migrants and members of their communities, migrants and their supporters throughout the world organize to resist, engage in popular education, and advocate for change.

Many such workers are women migrants in the global economy. Note, for example, the long, increasingly visible struggle for human rights among “transnational women” who engage in domestic work. They have advocated for a Domestic Workers Bill of Rights in New York State and have helped develop international standards for decent working conditions for domestic workers.

The U.S. Struggle for Migrant Human Rights

Global activism on the human rights of migrants includes those who resist rising anti-immigrant fervor and state and local laws that discriminate against immigrants and their communities in the U.S. as well. As posted here, dozens of community organizers, human rights advocates, immigration lawyers, labor representatives, students, and scholars gathered at Northeastern University School of Law in Boston last October for a two-day workshop, “Beyond National Security: the Economic, Social, and Cultural Rights of Noncitizens.”


The workshop was hosted by the Program on Human Rights and the Global Economy and sponsored by the Ford Foundation and the Human Rights Interest Group of the American Society of International Law. Rachel Rosenbloom (photo, right) and yours truly, IntLawGrrl Hope Lewis, co-chaired the gathering. IntLawGrrls guest blogger Mariah McGill was institute administrative coordinator. Post-JD Fellow Jane Moisan researched international legal standards and background materials as well as helped with drafting. Participants shared existing projects and strategies across disciplines and activist divides. They also debated whether or not international human rights approaches would be useful strategically for future social justice work in the U.S.

Participants identified those human rights issues they would most like to see prioritized in a set of “guiding principles” on the economic, social, and cultural rights of immigrants. Why focus on ESC rights? In the U.S. context, economic, social, and cultural rights generally go unrecognized or unfulfilled. See, for example, my post on the U.S. State Department’s recent rhetorical recognition of economic and social rights here.

For noncitizens and their communities in the U.S., economic, social, and cultural pressures are increasing at state and local levels (housing restrictions, educational and language restrictions, limitations on access to health care, exclusion from coverage under certain labor laws, as well as discriminatory laws infringing on freedom of movement). The idea, it is clear, is to pressure noncitizens to “self-deport” by violating their economic, social, and cultural human rights.

The Boston Principles on the Economic, Social, and Cultural Rights of Noncitizens

Thus, the “Boston Principles” were born. We began by simply compiling key relevant provisions from the core international human rights instruments, including the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. We also drew on important legal standards and interpretive documents such as:

►The International Labour Organization Declaration on Fundamental Principles and Rights at Work

►The UN Guiding Principles on Internal Displacement

►CERD General Recommendation No. 30: Discrimination Against Non-Citizens

►Report of the Special Rapporteur on the Human Rights of Migrants, Dr. Jorge Bustamante, Mission to the United States of America

►Final Report of the Special Rapporteur on the Human Rights of Noncitizens, Professor David Weissbrodt

Framework

The Boston Principles are comprised of 30 provisions (the 30 Articles of the Universal Declaration of Human Rights served as one model for the framework). However, the participatory nature of the drafting and comment process resulted in some draft provisions that were highly detailed and lengthy in order to accommodate comments. We decided, instead, to keep the principles themselves relatively short, while also providing more fully developed implications in “understandings” beneath each principle.

A draft was opened for comment on International Human Rights Day, December 10, 2010 and closed on Martin Luther King Day, 2011. We have, however, also benefited from further presentations and comments on the Boston Principles and expect to continue to do so.

Audience and Action

We were inspired by the many local and state efforts to incorporate international human rights instruments into city council resolutions and state and local legislation. We therefore hope that community organizers, immigrants’ rights groups, U.S.-focused human rights NGOs, unions, educators, and individuals will use them in similar efforts or in other advocacy strategies.

Content

Equality and Non-discrimination. We began with the premise that migrants like human beings belonging to other categories, carry with them fundamental human rights and should not be discriminated against.

Intersectionality. We took an “intersectional” or “multidimensional” approach, recognizing the complex identities of migrants and members of their communities. They intersect categories of race, ethnicity, language, sex, gender identity, sexual orientation, disability, religion, class, age, and national origin. As social constructs, these identity categories can shift over time, they can be the subject of compound discrimination, or they can involve the prioritization of one or more categories over others depending on context.


We also highlighted ways in which certain categories of noncitizens and their communities can be affected by human rights violations. The Boston Principles include specific provisions on the rights of racial, ethnic, religious, linguistic, and other minority groups, indigenous peoples, women, children, and persons with disabilities.

Interdependence. The Boston Principles recognize and are informed by, the interdependence of economic, social, cultural, civil, and political rights. For example, they recognize that violations of due process and other human rights in deportation proceedings can have profound effects on rights such as family unity and access to health care.

Violations in deportation proceedings even impact U.S. citizens as discussed in this piece on the wrongly deported by Rachel Rosenbloom.

On one hand, the Boston Principles are an indictment of current realities in U.S. federal, state, and local laws and policies. On the other, they are also a reflection of existing legal obligations that can be promoted by advocates. They are both a pragmatic and an aspirational vision that a better United States is possible.

Selected Resources
►Hope Lewis & Rachel Rosenbloom, The Boston Principles: An Introduction, 1 Notre Dame Journal of International, Comparative, and Human Rights Law (April 2011)

►The Boston Principles on the Economic, Social, and Cultrual Rights of Noncitizens

►A Guide to the Boston Principles (short guide prepared for readers of the December 10, 2010, Draft Principles)

►Georgetown University Law Center, International Migrants Bill of Rights Initiative, "International Migrants Bill of Rights" (2010). Georgetown Law Student Series. Paper 7
(collaboration among students at Georgetown University Law Center, London School of Economics, American University of Cairo, and Hebrew University; focuses on global migrants’ rights)

Why every human rights advocate should know a little international law

(Thank you to IntLawGrrls, and in particular to Beth Van Schaack, for the opportunity to contribute this guest post, Part 1 of a 2-part series on effective human rights advocacy; Part 2 is here)

International law is a powerful tool for the protection of human rights. The law and the bodies that enforce it can provide real redress for victims of human rights abuses, build bridges between communities facing similar harms, bolster arguments for accountability, and mandate reforms. Though the regional and thematic treaty-based nature of human rights mechanisms may lead to some fragmentation or inconsistencies in the development of substantive rights, individuals and nongovernmental organizations’ thoughtful engagement with such mechanisms can yield profound results; for example:
► Vindication for the individual, as in this judgment from the European Court of Human Rights;
► A new beginning for the individual's community, as in this case from the Inter-American Court of Human Rights; and
► Landmark policy change for the individual's country, as in this matter before the Inter-American Commission on Human Rights.
In January of this year, I founded the International Justice Resource Center, a nongovernmental organization aimed at furthering such achievements -- in particular, helping human rights advocates know more about, and thus make better use of, international law.
IJRC is a global, user-oriented platform aimed at connecting grassroots human rights advocates with an underutilized, but powerful set of tools: international law and supranational human rights mechanisms. IJRC administers an online hub, tailored trainings and advocacy support, with the goal of democratizing understanding of and access to the range of international human rights norms and the bodies charged with their promotion and protection.
Based in Boston, Massachusetts, IJRC already has trained advocates working in various regions of the world, and responded to requests for advice from California to Kyrgyzstan. IJRC is also building an online platform where visitors can seek assistance, engage with one another, and access practical, user-friendly resources, such as instructional videos and manuals. No matter the issue they are facing or the country in which they work, advocates will be able to gain actionable knowledge of the standards and bodies relevant to their litigation, reporting, advocacy, or public education campaigns.
This past Wednesday, IJRC hosted Boston Human Rights Night, which brought together members of the academic, social justice, and legal communities to learn about one another’s work and explore the opportunities that international law presents for enhanced human rights promotion. The evening was also the culminating celebration of Campaign 501, which wraps up tomorrow.
At the Human Rights Night, an expert panel provided concrete examples from their work in the United States and abroad, allowing participants to take away a fuller understanding of the relevance of international law to social justice advocacy in the United States.
As panelists detailed, persons seeking improvement of – or accountability for – human rights conditions in the United States can:
► Prepare shadow reports for the expert bodies monitoring compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, and Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment;
► Engage with the Human Rights Council thematic special procedures’ factfinding and reporting activities or seek the body's intervention on specific human rights violations;
► Submit information for consideration by the U.N. Human Rights Council as part of its Universal Periodic Review process;
► Make specific allegations of human rights violations through the Human Rights Council complaints procedure; and
► Submit individual complaints to the Inter-American Commission on Human Rights, and furthermore, participate in that body’s thematic hearings and rapporteurs’ activities.
In addition, many international bodies are empowered to intervene and urge or order state action where the life or security of a person or the object of the litigation is at immediate risk of irreparable harm. These means of engagement do not include still another avenue: advocacy around and engagement with the work of the political organs of intergovernmental organizations.
Unfotunately, as I will discuss in Part 2, the post that will appear tomorrow, Human Rights Day 2011, there remains a gap between the availability and use of such international law resources.

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.

International law as a tool to promote human rights

(On Human Rights Day 2011, we present Part 2 of a 2-part series on human rights advocacy by guest blogger Lisa Reinsberg; Part 1 is here)

Despite the significance of international law for human rights – discussed in my post yesterday – international law remains at a distance from many who work in and struggle for human rights. (credit for Human Rights Day 2011 logo)
Few victims, social justice advocates, and attorneys around the world are aware of the relevance of international law to the issues they confront. Even fewer are equipped with the knowledge and support necessary to use international law and mechanisms to protect human rights effectively, on either an individual or a societal level.
Determined persons can access a variety of academic resources. Yet such resources generally are known only by, and useful only to, the small group of attorneys routinely engaged in international advocacy. For most other persons, international law remains opaque and difficult to utilize.
Further, the ability of existing nongovernmental organizations to meet the needs of inexperienced international human rights advocates is limited in one or more important aspects -- for example, by geography or theme, or by scarce resources. The lack of transparency generally surrounding the work of human rights mechanisms’ is also a consequence of the limited resources of those bodies for press, public education, and outreach.
The outcomes of utilizing international human rights mechanisms vary, not only as a function of the differing mandates of the individual bodies, but also as a product both of the broader political and social context and of the expertise and strategies employed by victims and victims' representatives.
Indeed, in supranational human rights tribunals like those mentioned in yesterday's post, rejection rates remain high.
Lacking the resources to investigate each claim, human rights tribunals must rely on the facts and arguments provided by the parties. Often that is not ideal. A petitioner may complain of the thing that most affronted his sense of dignity or hurt his pocketbook, while neglecting to mention the injustices that seem to him routine or unlikely to interest an international body.
For example, while serving as legal fellow at the Inter-American Commission on Human Rights, I once came across a petition in which a group of individuals complained of the temporary confiscation of their personal items by police. It was only through additional research and correspondence that I learned the confiscation occurred in the context of a large-scale eviction, displacement, and harassment of the indigenous community to which the individuals belonged.
In the absence of broader awareness or interest, immediate and full compliance with human rights mechanisms’ recommendations or judgments still proves largely illusory. States are thought to be more likely to comply with monetary reparations than with more fundamentally protective or transformative reparations, such as legislative change. Similarly, international bodies are chronically underfunded, in spite of being responsible for ever-growing caseloads. This problem has led to repeated calls for funding reform, including this call for funding, posted a few weeks ago by James A. Goldston, Executive Director of the Open Society Justice Initiative.
Notwithstanding these challenges, international human rights bodies can have enormous impact at both the individual and societal levels. Examples include:
► An instance in which human rights intervention allowed an immigrant to stay with his family;
► An issue on which IntLawGrrls frequently have posted, the enabling of the prosecution of high-level officials through the repeal of amnesty laws that had immunized past international crimes (as in Peru and Uruguay); and
► Supranational bodies’ significant, broadly-accepted and progressive expansion of what we now consider human rights protected by law.
Even partial successes must be judged against the alternative; after all, it is only once domestic remedies prove unfruitful that victims may turn to supranational venues for individual redress. For a victim of a human rights violation, the opportunity to have her story recorded, a past injustice acknowledged, and the state’s accountability finally determined is meaningful, and more than she would otherwise have. That is even more the case with respect to a public apology from the state, such as those extended just in the last month: two by Mexico (here and here), one by Britain, and one by Guatemala.
A woman I once interviewed, who has not seen her husband since he was abducted by government agents over a decade ago, explained the difference between her hearing before the Inter-American Court of Human Rights and her previous dealings with the state. Referring to government officials as "they," she said of the judicial forum:
'There they listen.…now it is they who have to give answers.'
Helping victims obtain not only answers, but also justice, by democratizing access to international norms and mechanisms, is the aim of the International Justice Resource Center, founded earlier this year.

What Role for the African Human Rights System in the Current Transformation of North Africa?

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

TUNIS - In Tunis last week, human rights defenders from across North Africa gathered to discuss the role that the regional African human rights system can play in the current transformation of North Africa. They were attending a workshop organized by the North African Litigation Initiative, a programme established by the Cairo-based Egyptian Initiative for Personal Rights.
Pictured above at far right, I work as the Legal Advisor for NALI, and it was our pleasure to host participants from Mauritania, Algeria, Tunisia, Libya, Egypt and Sudan.
We were also honored to have Justice Fatsah Ouguergouz (left), the Algerian Justice from the African Court on Human and Peoples’ Rights, join us for the three-day proceedings.
It was particularly exciting to hear from Justice Ouguergouz given the pioneering ruling issued by the African Court on March 25. In issuing this Order for provisional measures against Libya, the Court instructed Libya to

'immediately refrain from any action that would result in loss of life or violation of physical integrity of persons.'

The Court’s judgment is its first binding ruling issued against a State. It is an important intervention by the African human rights system in recent North African events.
Overall, however, the view of the workshop participants is that the response of the African system to developments in North Africa has, to date, been slow and lacking in conviction.
Indeed, the fact that African institutions mandated with protecting and promoting human rights have, on the whole, reacted in a limited manner to events in North Africa led a couple of human rights workers to criticize our decision to hold the Tunis workshop. One human rights lawyer from the United Kingdom wrote to me a couple of weeks ago and said that he felt that the workshop was “mistimed.” The African human rights bodies, he said, could only offer recourses that are “time consuming and typically remote from real effects in actual situations.” At this point, he said, it was necessary both in Tunisia and across North Africa to deal with immediate human rights abuses and the rebuilding of domestic institutions. “So why,” he asked, “was this topic chosen at this time and place?”
This question played through my mind on the first day when I arrived in Tunis and went downtown to have tea with a Tunisian activist. Tanks and barbed wire lined the streets (left and below). But the atmosphere was initially peaceful: a couple of women were even taking photographs of each other with the soldiers and tanks.
Suddenly, however, the mood changed. Police with batons and riot shields began chasing a group of young men and all of us sitting at the street-tables ran inside for cover. My Tunisian friend explained:

'The tensions are rising. There is frustration that reform is not occurring quickly enough. We have so much work to do and so many human rights abuses that must be remedied.'

This experience in downtown Tunis emphasized the continuing volatility in Tunisia – a volatility also evident in Egypt, where I live and work. It highlighted the fact that many immediate, domestic steps must be undertaken to ensure the creation of democratic societies fully removed from the past oppressive regimes.
Yet the fact that much work needs to be completed at the domestic level should not exclude engagement with the regional human rights system. On the contrary, it is especially important at this particular moment to consider how the new governments in Tunisia and Egypt (and also, let us hope, in Libya) can develop strong relationships with the African human rights system so that the new regimes actively promote, protect and fulfill the rights they pledged to uphold when they ratified the African Charter on Human and Peoples’ Rights.
The belief that the African human rights system has the potential to reinforce and strengthen domestic reform certainly influences the work of the EPIR, my organization in Cairo. Over the last few months, EIPR staff members have been working around the clock to document and address the continuing domestic human rights abuses in Egypt (see also here).
However, EIPR has also been looking beyond the domestic judicial realm and has been attempting to engage with the African human rights system. In partnership with Human Rights Watch and INTERIGHTS, we requested the African Commission to issue provisional measures to stop human rights abuses in both Egypt and Libya. In the case of Libya, such requests undoubtedly helped to motivate the African Commission to refer the situation to the African Court.
It is critical that North African human rights defenders take this type of proactive approach so that the African human rights system is encouraged to play a positive role in the transformation of North African societies. In his introductory remarks to our Tunis workshop, Justice Ouguergouz reminded us:

'The African Court cannot act, but can only react. Civil society therefore has a crucial role to play in creating an environment where it is possible for both the African Court and Commission to take steps to protect human rights.'

Following these remarks by Justice Ouguergouz, one Tunisian lawyer took me aside and showed me some of the scars that riddle his body following 8 years of imprisonment under the Ben Ali regime. The lawyer told me:

'I will fight for justice for these scars, and for the scars of thousands of other Tunisians. After this workshop I know that I needn’t stop at the domestic level. I will continue the fight for justice within the African system so my country can become a place of tolerance and dignity.'

It remains to be seen how exactly the African human rights system can play a role in the incredible societal transformations occurring across North Africa. One thing, however, is clear: North African human rights defenders are determined to seize this historical moment to ensure that human rights principles are respected. It is NALI’s mission to ensure they are given assistance to utilize every means available to achieve this goal, including recourse to the African regional system.

In Defense of Human Rights Defenders

On this day in 1998, paramilitaries stormed into the office of Jesús María Valle Jaramillo (left), a Colombian lawyer and human rights defender who had been active in denouncing crimes committed by paramilitaries in conjunction with members of the Colombian army. Valle Jaramillo was executed. With him on this day 13 years ago were his sister Nelly Valle Jaramillo and a friend, Carlos Fernando Jaramillo Correa. These two individuals were tied, dragged across the office, and threatened with death.
The victims brought a case against Colombia before the Inter-American human rights system (the Commission and the Court). Remarkably, before the Commission, the state partially admitted its responsibility by omission, apologized, and offered reparations. The victims, however, argued that the terms of the admission denied the State's responsibility for its agents as co-authors, accomplices, or instigators in the alleged violations and thus did not fully contribute to the victims' desires for truth and justice. Accordingly, they pressed the Commission to forward the case to the Court.
Before the Court, Colombia was found responsible by omission for violations of the victims' rights to

• personal liberty (Article 7 of the American Convention on Human Rights),
• humane treatment (Article 5),
• life (Article 4),
• freedom of movement and residence (Article 22) and
• judicial protection (Article 25).

Drawing on the conclusions of its prior cases involving Colombia, the Court noted that the state originally encouraged the creation of “self defense” paramilitary groups, but that these groups began to "function beyond the law" and commit human rights abuses. The Court also noted that prior cases demonstrated numerous links between paramilitary groups and members of the armed forces such that the Colombian state bore direct international responsibility for the failure to comply with “its obligation to ensure human rights, [and, thus,] its duty of prevention and protection.” In addition, the Court found that

even though the State has adopted certain legislative measures to prohibit, prevent and sanction the activities of the “self defense” or paramilitary groups, these measures did not translate into the effective deactivation of the danger that the State helped create. [T]his accentuates the State’s special obligations of prevention and protection...

In addition, the Court made note of the special guarantees owed to human rights advocates in light of their work defending and promoting human rights. The Court acknowledged that Colombia had already implemented a series of measures to assist and protect human rights defenders including

• the legal recognition of human rights organizations;
• the formulation and implementation of the National Action Plan on Human Rights and International Humanitarian Law; and
• the provision of police protection to human rights organizations.

Nonetheless, full compliance with the obligation that states create the necessary conditions for the effective enjoyment and exercise of the rights established in the Convention,

is tied intrinsically to the protection and recognition of the importance of the role of human rights defenders, whose work is essential to strengthen democracy and the rule of law.

Thus, where a state is aware of a real and immediate danger to human rights defenders, a State

has the obligation to adopt all reasonable measures required to guarantee the rights to life, to personal liberty, and to personal integrity of those defenders who denounce human rights violations and who are in a situation of special vulnerability such as the internal armed conflict in Colombia.

With respect to reparations, the Court also undertook an interesting discussion of which family members should be recognized as "next of kin", reflecting the civil law's more expansive notions of dependents/beneficiaries.

For more on the risks undertaken by human rights defenders, see the programs at Amnesty International, the International Federation for Human Rights (FIDH), and Human Rights First.

Remembering Beijing: The Ferraro Factor

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

Geraldine A. Ferraro, who passed away this weekend, is a symbol of women’s rights advocacy.
As America’s first female candidate of a major party for vice-president, she broke barriers. But readers of IntLawGrrls may not know how actively and directly she influenced women’s rights issues in the international legal context as well.
Appalled by televised reports about the use of rape as a weapon of war by Serbs in the Bosnian conflict, Gerry contacted Madeleine Albright to ask what the new Clinton Administration was doing about it. She was immediately asked to join the Administration’s first delegation to the UN Commission on Human Rights in Geneva, in February 1993, where she helped convince Member States to adopt a separate resolution addressing rape in war.
As Gerry told it, accomplishing this task required her to conduct gender-sensitivity training, too. For example, she found herself telling the male diplomats from the Islamic Conference that they needed to recognize that such sexual violence was not so much an insult to THEIR ‘honor’ (which was all they were prepared to declare) but rather a very real lasting physical and psychological abuse of the women who were victimized. Gerry emphasized that something serious had to be done by the Commission to name it, stop it, punish the perpetrators and aid the survivors. As a result, the Commission adopted a resolution that called for ‘joint and separate action to end this despicable practice,’ as well as for investigations, accountability and assistance to the victims.
Later that year, the protection of women’s rights was affirmed as a major focus of the UN World Conference on Human Rights in Vienna – only a few hundred miles from Bosnia itself.
Gerry was then appointed to head the US delegation to the Commission on Human Rights in Geneva as Ambassador. After she took the reins of the delegation for its 1994 session, the UN created the post of Special Rapporteur on Violence against Women, with a mandate to investigate and intervene to stop abuses worldwide. Additionally, at Gerry’s direction, attention to women’s rights and a gender perspective was incorporated into UN resolutions authorizing many other investigations into human rights abuses.
The following year, after setbacks at a spring Preparatory Conference (“Prepcon”), women advocates realized it was urgent to have strong US leadership on women’s human rights issues as a part of the negotiating team for the upcoming Beijing World Conference on Women, scheduled for September 1995. The World Conference was under attack from various quarters – representatives of the Vatican and Islamic countries had worked vigorously at the Prepcon to place large portions of the draft Platform for Action into brackets (meaning they would remain open to negotiation) and had added proposals challenging the universality of human rights. Some opponents of the Conference offered the concept of ‘human dignity’ as an alternative to that of equal rights (i.e., women might have dignity but may not have equal rights). Others demanded recognition of parental rights and duties rather than the human rights of women and girls, and questioned the use of the word gender. The topic of reproductive rights was challenged directly in ways seeking to undermine advancements stemming from the October 1994 Cairo World Conference on Population and Development.
Gerry was appointed a vice-chair of the US delegation to Beijing in June 1995 and reached out immediately to NGOs and experts alike to work with her and tackle the issues one by one. She engaged in a wide range of informal contacts to try to improve the diplomatic atmosphere—and to reach agreements that affirmed rather than destroyed women’s universal rights. Ensuring a successful outcome in Beijing required her to engage with critics at home, as well as to interact with the representatives of the Vatican and Islamic states from Iran to Sudan. Conference language affirming universality of women’s human rights was threatened by other proposed language that would have both endorsed cultural relativity and emphasized national sovereignty, in particular, through repetition of a key footnote that had ‘saved’ the Cairo conference by encouraging each country to interpret the rights any way it wished. In the end, Gerry Ferraro succeeded in maintaining a US position that preserved the emphasis on universality of women’s rights for all, and concentrated on ensuring equal rights for women.
Hillary Clinton’s remarkable speech at the Conference fixed in delegates’ minds the concept that “women’s rights are human rights” and that they are not something different, inferior, or diminished as compared to other human rights.
The Beijing Declaration and Platform for Action went on to affirm that violence against women was not merely an ‘obstacle’ to equality and peace as had been stated earlier in the 1980 Copenhagen World Conference on Women, but also an abuse that impaired and violated the enjoyment of human rights by women. It defined violence against women broadly – as a phenomenon occurring in public and in private – that had to be prevented, outlawed and punished. The document calls for reporting and monitoring of violations, investigations and prosecutions of perpetrators, due diligence by governments and accountability. The document identifies rape in armed conflict – the issue that spurred Ferraro to engage with the UN’s human rights bodies – as a war crime and under certain circumstances as a crime against humanity or act of genocide. The Beijing World Conference advanced women’s rights both conceptually and politically.
Gerry Ferraro, who was born on Women’s Equality Day (August 26), could claim a victory for the ideas, strategies, and ongoing efforts to bring women’s human rights issues into the mainstream of UN human rights bodies and world attention. Here, as in her unprecedented political candidacy, her efforts and achievements strengthened the position of all women.

(credit for September 12, 1995, UN/DPI 120801 photo by Chen Kai Xing of Ferraro, center, in Beijing)

Introducing Sarah Paoletti & Nicole Phillips

It's our great pleasure to welcome Sarah Paoletti and Nicole Phillips as IntLawGrrls contributors.
► Sarah (top right) directs the Transnational Legal Clinic at the University of Pennsylvania Law School in Philadelphia, where she's also a Practice Associate Professor of Law. (prior posts) Before beginning work at this international human rights and immigration clinic, she taught at American University Washington College of Law – in the International Human Rights Law Clinic, as well as a seminar on the labor and employment rights of immigrant workers. As reflected in her numerous publications, Sarah's areas of specialty include international human rights, migrant and immigrant rights, asylum law, and labor and employment. She has presented on the rights of migrant workers before the United Nations and the Organization of American States, and also works closely with advocates seeking application of international human rights norms in the United States. On behalf of the US Human Rights Network, Sarah coordinated civil society participation in the U.N. Human Rights Council's Universal Periodic Review of the United States.
► Nicole (middle right) is a Staff Attorney at the Institute for Justice & Democracy in Haiti, which, in a lawsuit against the United Nations, represents more than 5,000 victims of a cholera epidemic that has broke out since the January 12, 2010, earthquake in Port-au-Prince. Nicole joined the Institute after the earthquake; before that, she'd been a partner in a union labor firm, Weinberg, Roger & Rosenfeld in the San Francisco Bay Area, where she served as general counsel to unions and employee benefit trust funds across the country, arbitrated collective bargaining disputes, and managed a caseload in federal and state courts involving labor, employment, health insurance, and environmental regulations.
An Adjunct Professor and Assistant Director for Haiti programs at the University of San Francisco School of Law, also the home institution of IntLawGrrls contributors Connie de la Vega and Michelle Leighton. Nicole is a member of the Board of Directors of Human Rights Advocates, a Berkeley-based nongovernmental organization. She has appeared before the Inter-American Commission on Human Rights, Human Rights Counsel, Human Rights Committee, Committee on the Elimination of all Forms of Discrimination, and Commission on the Status of Women on various human rights issues.
In their post below, which appears on the 2d anniversary of the earthquake that devastated Haiti, Nicole and Sarah outline the Universal Periodic Review that the Human Rights Council is examining Haiti's human rights record. Complementing it is Amy Senier's post above on the quake's aftermath.
Sarah and Nicole dedicate their post to Sonia Pierre (left), with whom Nicole had the pleasure of working both in the Dominican Republic and at the United Nations. Born 48 years ago in a "batey – the name given to settlements for sugar cane cutters working for the Dominican sugar industry" – Pierre was among 12 children in a family of Haitian descent. At age 13, Pierre led a march for workers' rights, and so was arrested for the 1st time, jailed for a day, and threatened with deportation to Haiti. Thus began a career of human rights activism that included the founding of the Movement of Dominican Women of Haitian Descent. Pierre died from a heart attack on December 4, 2011. In 2006, she had been honored as a Human Rights Laureate by the D.C.-based Robert F. Kennedy Center for Justice and Human Rights, which has established a Memorial Fund for her family.
Today Pierre joins other honorees on IntLawGrrls' transnational foremothers page.

Heartfelt welcome!

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.
  

Financing Human Rights in a Global Crisis

It’s been a busy and challenging Human Rights Week for IntLawGrrls. December 9 marked the 60^th anniversary of the UN Convention on the Prevention and Punishment of the Crime of Genocide (see Diane Marie Amann's post here) and December 10 marked the 60^th anniversary of the Universal Declaration of Human Rights (see a post on the history of its drafting and adoption by Stephanie Farrior here and other IntLawGrrls' commentary on the UDHR here ).

In what we hope is another groundbreaking move, the UN General Assembly commemorated Human Rights Day by adopting the long-awaited Optional Protocol to the International Covenant on Economic, Social, and Cultural Rights (see Stephanie Farrior's post here).

Despite the longstanding view endorsed by the international community that all human rights, whether civil, political, economic, social, or cultural, “are universal, indivisible and interdependent and interrelated,” (Vienna Declaration and Programme of Action), economic and social rights are still dismissed or viewed with suspicion in some circles (see Human Rights & the Global Marketplace: Economic, Social, and Cultural Dimensions by Jeanne M. Woods (photo right) & Hope Lewis).

A remark recently overheard at a UDHR celebration illustrates the continuing misperceptions. The speaker dismissed ESC rights as alien to an “Anglo-American tradition.” This, despite the fact that no less American a figure than U.S. President Franklin D. Roosevelt called for the indivisibility of rights (freedom of speech and expression, freedom of religion and belief, freedom from want, and freedom from fear) in his famous 1941 “Four Freedoms” speech to Congress.

The various celebrations commemorated how far the international human rights movement has come, but they also shed light on how far we have to go. The standards outlined at the UN will constitute only empty promises without the political and economic commitment to back them up.
Genocide, mass killings and sexual violence, poverty, labor abuses, war, crimes against humanity, political and economic migration, human trafficking, the over-incarceration and under-education of minority youth, discrimination against indigenous peoples and racial, religious, sexual, and disability minorities and women, and environmental destruction caused by carbon emissions, unregulated mining and dumping of toxic industrial and electronic waste—all are, or are related to, continuing and massive violations of international human rights.
It is a time of global crisis, with almost every economic system and country feeling the effects. No one, including politicians, economists, and development experts, seems to have “the solution”. I don’t either (although, as a former U.S. securities regulator, I suspect that wholesale financial deregulation played an important role in the mess). (Disclaimer: The latter is solely my opinion, and does not necessarily reflect that of the U.S. Securities & Exchange Commission or its staff.)
I do know this. A human rights perspective requires states, the international community, and each of us as members of society to protect fundamental human rights as a matter of priority. Some such efforts may even save some governments money, since the apparatus necessary to imprison political dissidents, torture detainees, and engage in unwise military adventures is often expensive.
Still, the protection of human rights, whether civil, political, economic, social, or cultural does require financial investment and political commitment.
Private donors, foundations, and charitable organizations do what they can to support vulnerable populations (see, for example, a recent press release on grants to 33 developing country NGOs by the Disability Rights Fund).
But governments have explicit moral, political, and legal obligations to make an investment in human rights on a much broader scale. (Note, for example, their commitment to the Millennium Development Goals and the recent International Review Conference on Financing for Development). A paradigm-shift toward human rights and human development is more likely to produce longer-term and more widely distributed benefits than failed neo-liberal paradigms have left us so far.
Like industries that are now considered “too big to fail,” individual governments and the international community simply cannot afford to consign millions to unemployment, unsafe working conditions, poverty, hunger, discrimination, and lack of access to health care.
As world leaders grapple with the global effects of financial and environmental shocks, the needs and rights of those who are most vulnerable and who will be most adversely affected must be front and center. Such an approach is not only just, compassionate, and legally-required; it’s crucial domestic and international policy.

Raising Arizona

If the polls are to be believed, a significant majority of Americans support Arizona's harsh new immigration law, signed by Gov. Brewer three weeks ago today. The significant minority of Americans opposed to the law has pushed back fairly powerfully, including through criticism from governors of other border states (California, New Mexico, and Texas) and boycotts by several cities, including most recently, Los Angeles. Perhaps even more striking has been the strong opposition to the law from outside our borders, from Mexican President Felipe Calderon (who stated that the law infringes basic human rights) to the Mexico-based World Boxing Council (which called the law shameful, inhuman, and discriminatory) to Secretary General Jose Miguel Insulza of the Organization of American States (who called the law discriminatory) to the Union of South American Nations (which expressed concern over the law's racist consequences that undermine respect for human rights), much of it leveraging the language of human rights.
The most comprehensive international human rights critique of the law, however, was offered by a group of six independent United Nations experts -- an unusually large team of human rights superheroes -- on Tuesday. Their statement, which also addresses the bill banning ethnic studies courses in Arizona schools that Brewer signed the into law the following day, raises interesting questions about the role of international human rights law in protecting immigrants' rights. Most obviously, if laws that violate human rights are consistent with a country's social norms, as the poll results suggest in the case of Arizona's law, will international pressure help to shift those social norms or will it simply entrench anti-immigrant attitudes and opposition to "foreign meddling" in domestic affairs?
In her own rather confused way, Governor Brewer presents another interesting question about the application of international human rights law in federal systems of government. Her response to the UN experts statement places the responsibility for enforcement of international human rights law squarely on the federal government, arguing that "[i]f the Arizona law violates the international standards, then so does the federal law upon which it is based." Though perhaps not the most compelling argument, it does give rise to questions about whether the federal government should be responsible for challenging state laws that violate international human rights law. While sub-state actors may in some cases be more effective enforcers of international norms, central governments still have an important role to play in keeping rogue sub-state actors in line.
Finally, the statement takes a step towards enforcement of positive rights, a move that highlights the predominance of negative rights in the human rights discourse. At first read, I questioned the existence of binding legal authority to support the claim that "[s]tates are obligated to not only eradicate racial discrimination, but also to promote a social and political environment conducive to respect for ethnic and cultural diversity.” But there it is, clear as day, in the text of Article 7 of the Convention on the Elimination of All Forms of Racial Discrimination:

States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups. . .

A good reminder that the "spirit" of human rights treaties is sometimes spelled out right there in the text, and that we shouldn't allow the enforcement of negative rights, though unquestionably important, to overshadow legally binding claims to positive rights. (For those interested in further readings on Article 7, here's an excellent short piece by IntLawGrrl Stephanie Farrior.)

Read On! The Definitive Filártiga

(Read On! ... occasional posts on writing we're reading)

Every once in awhile, a case comes along that changes everything. Filártiga v. Peña-Irala (2d. Cir. 1980) was one of those cases. The Filártiga plaintiffs made an audacious assertion: that Paraguayan victims of human rights violations could bring suit in a U.S. federal court against a Paraguayan perpetrator for acts of torture and extrajudicial killing committed in violation of international law in Paraguay. (Plaintiffs were the sister and father of Joelito Filártiga, below left). The case established many firsts: that the Alien Tort Statute supports assertions of extraterritorial jurisdiction, that long articulated but rarely enforced human rights norms are justiciable, that the individual is front and center in international law as victim and perpetrator, and that ensuring a robust system of accountability is consistent with the interests of the United States. Filártiga empowered hundreds of additional victims to mobilize the U.S. legal system against human rights abusers who would otherwise find safe haven in the United States. Before Guantánamo and its repercussions, the United States boasted the most vibrant system of civil domestic human rights enforcement in the world. Professor William Aceves’s engaging new volume, The Anatomy of Torture: A Documentary History of Filártiga v. Peña-Irala (2007), tells the story of how we got here through a rich account of the Filártiga case and its progeny. (A fuller review is forthcoming in Human Rights Quarterly).

Aceves’s project joins the “law stories” movement in legal pedagogy exemplified by Foundation Press’s excellent series of course supplements. (Indeed, the Filártiga case is also featured in Foundation’s equally great Law Stories text on international law, in a chapter by Yale Law Dean Harold Hongju Koh: "Filártiga v. Peña-Irala: Judicial Internalization into Domestic Law of the Customary International Law Norm Against Torture" in International Law Stories (John E. Noyes et al. eds. 2007)). Aceves offers a definitive account of Filártiga’s procedural history—with an emphasis on the pleadings, defensive strategies, choice of law questions, the applicability of the “political” defenses (act of state, political question), legal and administrative remedies, appellate practice, and methods of enforcement. This exhaustive treatment of a single case provides a valuable window into the transnational legal process.

Yet, Aceves’s volume is more than a stereoscopic treatment of a single case and its impact. The text also includes a fascinating and exhaustive documentary history compiled from a variety of governmental and non-governmental sources within the United States and Paraguay. The mix of legal and political artifacts—complete with pleadings and opinions, embassy cable traffic, and transcripts of key hearings—enables a more complete understanding of the litigation process from pre-filing investigation to final judgment and all the hurdles in between. Indeed, Aceves was able to uncover intriguing information about the case that is not at all part of the official record from a variety of sources, including through recourse to the Freedom of Information Act. (The drawings below are by Dr. Joel Filártiga, one of the plaintiffs and also an accomplished artist).

Aceves’s book offers a compelling read for anyone interested in international human rights and their enforcement. With its more technical emphasis on the evolution of legal doctrines essential to ATS litigation, the book is geared more toward lawyers, academics, and students than toward laypersons. (A more dramatized account of the case is provided by Richard Alan White, Breaking Silence: The Case that Changed the Face of Human Rights (2004). White was a friend of the Filártigas who spent time with the family in the immediate aftermath of Joelito’s death. HBO produced a docudrama on the case entitled One Man’s War (1991), in which Anthony Hopkins plays Dr. Filártiga (left)). For the legal community, the book will undoubtedly serve many purposes. For one, its discussion of key precedents provides essential reading and an invaluable reference tool for practitioners of ATS litigation. From the perspective of legal pedagogy, the book has the potential to be a wonderful teaching tool for courses on the international legal process, transnational civil procedure, and human rights theory and practice. For students enrolled in law school human rights clinics, the book will provide a great introduction to the ebb and flow of human rights litigation.

The author (right) is uniquely well suited to undertake this study of transnational human rights litigation. Aceves teaches international human rights, foreign affairs law, and civil procedure at California Western School of Law, where he serves as the Director of the School’s International Legal Studies Program. In addition to his scholarly pursuits in these areas, Aceves has participated actively in a number of cases in the Filártiga tradition as litigation advisor and “friend of the court.” Aceves is also on the board of the Center for Justice & Accountability, one of the primary human rights organizations devoted to ATS litigation, and works regularly with Amnesty International. Given his insider’s perspective, it is no surprise that his book is a definitive account of this seminal case and its impact.

A fascinating chapter of this procedural story concerns the role of the Carter Administration, which eventually filed an amicus curiae brief in the case at the invitation of the Second Circuit. (Plaintiffs appealed the district court’s dismissal of the case on the ground that international law did not regulate the interactions between individuals within a single state, even when state action was involved). Aceves’s book provides a rare “behind the scenes” look at some of the inter-departmental and inter-branch negotiations between the Department of Justice, the Solicitor General, the Department of State, members of Congress, and even plaintiffs' counsel that preceded the filing of the brief. The final brief soundly rejected the district court’s approach to international law by confirming that the universal and fundamental prohibition against torture protected individuals from their own governments. A key feature of the brief is its dynamic view of the evolution of international law and the cognizability of customary international law. The brief confirmed that where a norm is well-established, such as the prohibition against torture, there is little concern that its private enforcement would undermine U.S. foreign policy interests. Rather, the brief opined, the failure to recognize a cause of action for acts of torture might undermine the credibility of this nation’s commitment to international human rights and its ability to exert influence on states with poor human rights records.

These are stirring ideas in the current climate, which has witnessed the re-emergence of a debate about the legality, propriety, and utility of torture and cruel treatment as means of interrogation; has occasioned government lawyers drafting legal memoranda that provide a blueprint for insulating U.S. officials from legal responsibility for unlawful interrogation techniques; and has resulted in the bipartisan passage of legislation stripping the courts of jurisdiction over claims by individuals who allege that they have been mistreated by agents of the U.S. government. The Carter Administration’s brief, with its unalloyed support for accountability and the civil enforcement of international human rights norms, is a striking contrast to official positions taken by the Bush Administration in the war on terror and in current ATS litigation.

The Second Circuit’s landmark opinion bespeaks a more hopeful and self-assured time. It is indeed startling to revisit this case in this historical moment. The United States, once a beacon of human rights values, is now subject to worldwide criticism for having turned its back on the human rights edifice. Likewise, its credibility as a champion of human rights worldwide and its ability to exercise global leadership on this score have been indelibly stained. In these unfortunate times of moral relativism, it is instructive to recall the uncompromising words issued by the Second Circuit in reinstating the Filártiga case:

In the twentieth century the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights and particularly the right to be free from torture. … In the modern age, humanitarian and practical considerations have combined to lead the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest. Among the rights universally proclaimed by all nations … is the right to be free from physical torture. Indeed, … the torturer has become like the pirate and the slave trader before him hostis humani generis, an enemy of all mankind.

These words—while somewhat muffled by the discourse of the day—still ring true and must be reaffirmed.