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.

'Nuff Said

Mass protests in Iran, violent backlashes against protesters, restrictions on media coverage, and the widespread use of new media in resistance and to tell the story, continued today. Not really "'Nuff Said," but some ideas worth remembering from the UDHR:

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,...
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom....
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20(1)
Everyone has the right to freedom of peaceful assembly and
association.

--Universal Declaration of Human Rights (1948)

(IntLawGrrl Naomi Norberg continues this exchange in her post above)

U.S. endorses sexual orientation statement

Yesterday -- 3 months to the day after scores of countries had joined in a Statement on Human Rights, Sexual Orientation and Gender Identity -- the iconic photo below of Eleanor Roosevelt holding the Universal Declaration of Human Rights appeared on the 1st page of the website of the U.S. State Department, along with this proclamation:

Human Rights, Sexual Orientation, and Gender Identity
The U.S. supports the UN Statement on “Human Rights, Sexual Orientation, and Gender Identity,” and is pleased to join the other 66 UN member states who have declared their support of this Statement that condemns human rights violations based on sexual orientation and gender identity wherever they occur.

This endosrsment marked an about-face for the United States, which had declined to join other states in signing the French-Dutch sponsored Statement in December, at the U.N. General Assembly. It thus had parted ways with many of its allies, including supporters among "all 27 European Union members as well as Japan, Australia and Mexico" -- and had cast its lot with the "[m]ore than 50 nations, including members of the Organization of the Islamic Conference" plus the Vatican, which stood in opposition.

Today IntLawGrrls publishes the full text of the just-endorsed Statement below.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

209. Most people in Britain, I suspect, would be astonished at the amount of care, time and trouble that has been devoted to the question whether it will be safe for the aliens to be returned to their own countries. In each case the Secretary of State has issued a certificate under section 33 of the Anti-terrorism, Crime and Immigration Act 2001 that the aliens' removal from the United Kingdom would be conducive to the public good. The measured language of the statute scarcely matches the harm that they would wish to inflict upon our way of life, if they were at liberty to do so. Why hesitate, people may ask. Surely the sooner they are got rid of the better. On their own heads be it if their extremist views expose them to the risk of ill-treatment when they get home.
210. That however is not the way the rule of law works. The lesson of history is that depriving people of its protection because of their beliefs or behaviour, however obnoxious, leads to the disintegration of society. A democracy cannot survive in such an atmosphere, as events in Europe in the 1930s so powerfully demonstrated. It was to eradicate this evil that the European Convention on Human Rights, following the example of the Universal Declaration of Human Rights by the General Assembly of the United Nations on 10 December 1948, was prepared for the Governments of European countries to enter into. The most important word in this document appears in article 1, and it is repeated time and time again in the following articles. It is the word "everyone". The rights and fundamental freedoms that the Convention guarantees are not just for some people. They are for everyone. No one, however dangerous, however disgusting, however despicable, is excluded. Those who have no respect for the rule of law -- even those who would seek to destroy it -- are in the same position as everyone else.
211. The paradox that this system produces is that, from time to time, much time and effort has to be given to the protection of those who may seem to be the least deserving. Indeed it is just because their cases are so unattractive that the law must be especially vigilant to ensure that the standards to which everyone is entitled are adhered to. The rights that the aliens invoke in this case were designed to enshrine values that are essential components of any modern democratic society: the right not to be tortured or subjected to inhuman or degrading treatment, the right to liberty and the right to a fair trial. There is no room for discrimination here. Their protection must be given to everyone. It would be so easy, if it were otherwise, for minority groups of all kinds to be persecuted by the majority. We must not allow this to happen. Feelings of the kind that the aliens' beliefs and conduct give rise to must be resisted for however long it takes to ensure that they have this protection.

-- James Arthur David Hope (above right), the member of the British House of Lords who goes by the nom de juge of Lord Hope of Craighead, writing last Wednesday in RB (Algeria) (FC) v Sec’y of State for the Home Dep’t.

In the end, the Law Lords ruled in favor of the British government in this "case involving the proposed deportation of two Algerians, identified only as 'RB' and 'U', who the Home Secretary considers are a threat to national security." According to London's Independent, "Home Secretary Jacqui Smith [right] said she was delighted with the decision"; various human rights activists said they were not.

(hat tip for alerting us to this passage to our colleague Eugene R. Fidell)

On January 10

On this day in ...

... 1984 (25 years ago today), full diplomatic relations were re-established between the United States and the Holy See. Relations between America and the Vatican had broken in 1867. Representing the United States at the Vatican since last February (but expected to depart with the Bush Administration) is Ambassador Mary Ann Glendon (above at far right, with Pope Benedict XVI), whose work as a Harvard law professor included authorship of A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001).

... 1991, Javier Pérez de Cuéllar (left), who'd been U.N. Secretary-General since 1982, prepared to head to Baghdad, the BBC reported, "in a final diplomatic effort to avoid war against Iraq," by "rais[ing] the possibility of sending a UN peacekeeping force to Kuwait to oversee the peaceful withdrawal of Iraqi troops. " His efforts would fail, and military intervention, dubbed "Operation Desert Storm," would begin on January 16.

On December 19

On this day in ...

... 1966, the 2 international covenants, intended to make obligatory and enforceable the promises made decades earlier in the Universal Declaration of Human Rights, were opened for signature by the U.N. General Assembly. The International Covenant on Economic, Social, and Cultural Rights was the 1st to enter into force, on January 3, 1976. The International Covenant on Civil and Political Rights followed by a couple months, entering into force on March 23, 1976.

... 1915, Édith Gassion was born in Paris to a father who was a street acrobat and a mother who aspired to be a cabaret singer. Often she "was left in the care of her Algerian grandmother, a Kabyle woman named Aïcha"; when her father left to fight in World War I, she "was left to her own devices, and generally ran wild with other children in the neighbourhood." After the war she and her father both worked as street entertainers; eventually she "was plucked off the streets, thrown into a chic little black dress and made resident singer of Le Gerny's, one of the most elegant cabarets on the Champs Elysées." Adopting a stage surname that means "sparrow," Édith Piaf went on to become one of France's most famous singers. During World War II she used her entertainers' access to Occupation officers in order to aided the French Resistance. In this video clip, she expresses her nonregrets in one of her signature songs, Non, je ne regrette rien:

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.

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.”

A New Dawn--And a Familiar "To Do" List

The euphoric reactions to the amazing election of Barack Obama to the presidency of the United States of America resonate throughout the country and the world. (Photo Credit)
The diplomatic repair-work has already begun on the U.S. image and reality on the world stage. CNN reports that the President-Elect returned congratulatory calls from 9 world leaders on Wednesday.
Yes We Can--What's Next? IntLawGrrls explore a range of issues that should be high priorities for a new U.S. foreign policy. To name a few:
►Poverty Global poverty (the old crisis) and the global financial crisis (the new one); inequitable distribution of food, health care, housing, living-wage jobs, and education. These are the scourges that ruin or end prematurely millions of lives from the Mississippi Delta to Gonaives, Haiti, every day.
►The Environment Generating the political will for an internationally-shared sustainable response to the catastrophic potential of global climate change.
►Security Nuclear proliferation and security against terrorism. Threats to our civil rights and civil liberties disguised in misguided, ineffective, or politically expedient “responses” to security threats.
►War and Violence in Public and Private Life The ongoing crises in the Democratic Republic of Congo, the Darfur region of the Sudan, the Middle East, Afghanistan, and Iraq, as well as the pervasive “normalcy” of sexual abuse and other forms of gender-based violence. The trade in small arms that kills millions of youth at home and abroad.
►Discrimination Discrimination based on race, ethnicity, national origin, color, migration status, sex, sexual orientation, religious belief, class, and disability that so often leads to violence in homes, neighborhoods, and battlefields. And no, racism is not “over” now that the United States finally has elected a Black president—even as we celebrate the overwhelming margin and diversity of support.
►Human Rights See all of the above (and Connie de la Vega's post yesterday). The implications are just as important within the United States as they are for our policies toward the peoples of other countries. (See the 60 year old Universal Declaration of Human Rights linked here.)
So the new administration has plenty of work to do, but the “we” in “yes, we can” requires us all to participate.
Witnessing History Here’s another sample of global and local reactions to the 2008 U.S. election.

Galway, Ireland “America is Back! We missed your moral leadership and generosity of spirit. It feels like the American Revolution happened again yesterday. John Brown rests easy and the world can grow in confidence again”--Gerard Quinn

Hamilton, Bermuda

This is truly a new dawn, not just for the U.S., but for the whole world and especially for the African Diaspora - this day salves a little of the deep wounds of the centuries.
Many on the far left will likely be disappointed that President Obama does not promote all of their agendas. His campaign was not dependent on any one group - so he is free to pursue what he believes is the right thing to do in a measured, bipartisan way - this, too, is historic.--Arlene Brock

Boston, Massachusetts, USA

The anticipation, the fear, the uncertainty and the excitement of watching history unfold in my very eyes, took me back to South Africa. I remember experiencing the same feeling in 1994 as a 15 year old sitting on the couch with my arms around my belly, sweating, crying, waiting and hoping to see a black man, after 27 years in prison, declared president of a nation with a history filled with atrocities perpetuated against the black race. When I received your email yesterday, I was not able to express the feeling. The only complete sentence I remember saying last night after the result was: I wonder what Nelson is feeling right now to see that he paved the way for all of us around the world. To see yet another intelligent black man being elected president of a great nation with a convoluted history. The tears I shed watching Mandela walk out of Robben Island were painting my face once more last night as I watched Obama come out to give a speech at Grant Park.
Above all, I am proud of the fact that both men are sons of African men who were once enslaved by the very nations over which they now preside. I am also proud of the fact that Obama will bring a new image for black men in America and around the world.
For the international world, this means that African roots have once again contributed to the making of history and re-construction of a fallen nation. We built the roads in the US and now we will build the economy together with a sense of being citizens of the world. The one memory that I took from my journey in South Africa, now sits together with the memories created by last night’s event. For giving me the opportunity to witness another historical moment, I thank you.
Congratulations!--Mianda Bashala

Boston, Massachusetts , USA "This is a wonderful and historical moment." --James Hackney (Miss Lou thanks James for keeping it to one line!)

Toronto, Ontario, Canada "I fell to weeping as they called the election on CNN and at the same time here in Toronto the residents of my apartment complex let out an enormous collective scream of joy. Much of the world is celebrating with us. " --Lolita Buckner Inniss

Baltimore, Maryland, USA "While Barack Obama's election is a milestone, it is the image of Michelle Obama as First Lady that will enhance the self image of black women around the world!"--Taunya Lovell Banks

Tribal Nations and Idaho, USA

With the passage in 1924 of the Indian Citizenship Act, the federal government unilaterally brought all Tribal Nation citizens into the citizenry of the U.S. as dual citizens. It is a real credit to President-Elect Barack Obama that he has taken the time to understand Native issues, has brought with him prominent lawyers in the field of Native law to advise him and includes Native Americans in his list of diverse groups in the U.S. I would say for our peoples that simply being mentioned is a truly remarkable moment in the U.S. national discourse as we are often treated as the most invisible of all groups. It was intensely moving to hear him include us in his speech last night and I look forward to better relations with the U.S. for Tribal Nations during his administration. Full of hope, --Angelique EagleWoman (Wambdi A. WasteWin)

Davis, California, USA "Being a 'safe' blue state, we did not see much of the Presidential campaign in California. We were proud, however, when all the networks declared Senator Obama the winner as soon as the California polls closed!" --Kevin Johnson

Boston, Massachusetts, USA Photo: The smile on mom’s face the day in early 2008 when I took her to see “her adopted son”—the man she just knew would be elected the next President of the United States. ‘Nuff said.--Hope Lewis (Miss Lou)