Rights Wire

The Human Rights Blog of the Leitner Center for International Law and Justice


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Protecting abortion as a human right in the U.S.

By Elizabeth Gyori

Just days after the Supreme Court struck down a restrictive Texas abortion clinics law, the state is now seeking to force all fetal tissue to be cremated or buried after abortions. In June, Louisiana passed a law banning the most common and safest form of abortion during the second trimester, effectively forcing women to undergo less safe abortion procedures or to not get abortions after 12 weeks of pregnancy. Alabama’s state legislature passed a bill in May restricting abortion clinics from operating within 2,000 feet of public elementary and middle schools. A new law in Indiana bars women from getting abortions if a fetus’ race, gender or genetic disability is the motivating factor. Bans on abortions at 20 weeks of pregnancy—when the fetus is still not viable outside the mother’s womb—are in effect in many states across the U.S. These are only some of the most recent draconian laws passed by U.S. states to restrict women’s access to abortion and to curtail women’s human and reproductive rights. As attacks on a woman’s right to control her own body increase in frequency and fervor, it is more urgent than ever to protect a woman’s right to abortion as a fundamental human right.

Abortion clinics are closing down at an alarming rate across the U.S., in both blue states and red states. While statistics on abortion clinics closures are scarce, one report by Bloomberg estimated that at least 162 abortion clinics in the U.S. stopped providing services or shut down entirely since 2011. Only 21 abortion providers have opened up to take their place. In many states, just a few (or sometimes, just one) abortion clinics service the entire area. Many women are being forced to travel hours and across state lines to obtain legal, timely and safe abortions. The drastic decrease in abortion clinics is largely due to various laws passed around the country placing medically unnecessary restrictions on doctors and abortion providers. These include requiring doctors to have admitting privileges at or an affiliation with a nearby hospital, imposing burdensome licensing requirements for abortion clinics (i.e. being licensed as ambulatory surgical centers), excessively regulating the facilities where an abortion will be performed and criminalizing the most common forms of abortion. (These first two practices were ruled unconstitutional in the 2016 landmark case, Whole Woman’s Health v. Hellerstedt, by the Supreme Court, and will likely see legal challenges in many states across the U.S. Despite this, history tells us that more creative and restrictive abortion laws will only replace them.)

Beyond these attacks on the clinics themselves, states have passed laws imposing medically unnecessary wait times and counseling on women seeking abortions, as well as restrictions on insurance coverage and minors’ access to abortions. Coupled with the sharp decline in abortion clinics, women all over the U.S. are being denied the health care that they need, deserve and to which they have a right. They are faced with the devastating reality that they no longer have full control over their bodies, their labor, their choice of motherhood. And they are seeing that if they want to take back control—sometimes through purchasing abortion-inducing medication on the internet, as Purvi Patel did in Indiana—they will be arrested, jailed, criminalized and even demonized.

In recent years, abortion access and reproductive rights have been the most threatened since Roe v. Wade legalized abortion in the U.S. in 1973. The debate over abortion has often centered on morality and religion, rather than the rights of women. As states pass more and more laws restricting abortion in one way or another (with, perhaps, the ultimate goal of banning abortion altogether), we must understand that not only are these laws unconstitutional, but they are in violation of the U.S.’ human rights obligations under international law.

Abortion is a critical component of comprehensive reproductive health care for women. Denying women access to this procedure violates women’s right to life and health care. Article 6 of the International Covenant on Civil and Political Rights (ICCPR), to which the U.S. is a party, guarantees the right to life, and governments are required to take the necessary steps (“positive measures”) to preserve life. Since reproductive health care is necessary for women’s survival, access to safe and legal abortion is protected under the ICCPR. Not only must governments respect this right, but states are also required to ensure that women do not risk their lives by seeking unsafe and illegal abortions due to restrictive abortion laws.

On several occasions, the Human Rights Committee has expressed concern about laws that restrict abortion, make abortion inaccessible or discourage safe and legal abortion services, and the Committee has consistently recommended loosening abortion laws. Earlier this year, the Committee affirmed that abortion is a human right under the ICCPR in a landmark case in Peru, in which a woman who was denied a medically necessary abortion received reparations from the government. In June, the Human Rights Committee ruled that Ireland’s abortion ban and the criminalization of access to abortion amounted to human rights violations. After the U.N. Working Group on the issue of discrimination against women in law and in practice conducted a 10-day fact-finding mission in the U.S., they noted in their 2015 preliminarily findings that women in the U.S. are facing increasing barriers to safe and legal reproductive care, which does not meet international human rights standards. They group also stressed that freedom of religion cannot justify the denial of reproductive health care.

Furthermore, laws that restrict access to abortion are discriminatory towards women, as they deny only women’s right to life and necessary health care. They also discriminate against female racial minorities and poor women, who are disproportionately affected by abortion bans and restrictions in the U.S. Since Articles 3 and 26 of the ICCPR protect the equal enjoyment of the rights stipulated in the covenant, anti-abortion laws violate women’s right to be free from gender-, race- and class-based discrimination under the ICCPR.

Beyond this, forcing women to carry pregnancies to term or to seek out unsafe, clandestine abortions is cruel, inhuman and even torturous. Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to which the U.S. is also a party, guarantees individuals the right to be free from torture and cruel, inhuman or degrading treatment. The U.N. Committee against Torture has recognized that forcing women to carry pregnancies to term or to seek out illegal and unsafe abortions (in which their lives may be placed in danger) qualifies as cruel, inhumane or degrading treatment. Juan Mendez, the U.N. Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, classified lack of access to abortion as torture in his 2013 report. Furthermore, complete bans on abortion violate the rights guaranteed under CAT, according to the Committee, especially since these bans force women to carry pregnancies that result from rape or incest to term. Forced pregnancy, especially as a result of rape and incest, can be incredibly traumatizing, both physically and emotionally.

Recent attacks on abortion are fundamentally about controlling—and arguably, torturing—women. These restrictive laws not only violate women’s basic human rights, but they also contribute to an increasingly polarized, vicious and violent political and social climate. In March 2015, Donald Trump, the presumptive Republican nominee for president, said that women should be “punished” for getting abortions illegally. On Nov. 27, 2015, three people were shot dead and nine people were injured during a shooting at a Planned Parenthood in Colorado. Robert L. Dear Jr., the accused shooter, yelled that he was “a warrior for the babies” during his court hearing, making it clear that his acts of violence were motivated by anti-abortion views. Incidents of violence against and harassment of abortion providers, including arson, vandalism and attempted murder, have increased over the past few years. And groups of anti-abortion activists regularly gather near abortion clinics to terrorize women seeking to exercise their reproductive rights and control over their own lives.

Pro-choice advocates have long worked to establish and portray abortion as a constitutional right, recognized and protected by Roe v. Wade and derived from the constitutional right to privacy. While the latest Supreme Court case was a distinct victory for women and reproductive rights, restrictive laws on abortion like the ones mentioned before have slowly and will likely continue to erode women’s right to abortion. As women face sustained and relentless attacks on their reproductive rights, we must work to protect abortion not just as a constitutional right, but also as a fundamental human right.

Elizabeth Gyori is the Editor of Rights Wire.

The views expressed in this post remain those of the individual authors and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: Steve Rainwater/Creative Commons


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Saudi Arabia’s dismal human rights record and the complacency of the international community

By Sarah Ben-Moussa

On Jan. 2nd, 2016, Saudi Arabia executed 47 people, including Sheikh Nimr al-Nimr, a Shiite cleric who was convicted for speaking out against the Saudi Arabian regime and calling for more rights for the country’s Shiite minority. This caused a significant uproar in the human rights community, which was concerned with the use of the death penalty and unfair trials. The executions also escalated tensions with Iran, which condemned the arbitrary nature of the charges levied against al-Nimr, as well as the use of the death penalty.

Ironically, these executions come after Faisal bin Hassan Trad, Saudi Arabia’s ambassador at the U.N. in Geneva, was elected chair of a Consultative Group for the U.N. Human Rights Council at their 30th session in September 2015. Following heavy criticism of this development, the U.N. emphasized that the five members of the Consultative Group were not elected by any U.N. body, but instead appointed by five regional groups and serve in a personal capacity to objectively assess and recommend candidates for U.N. human rights experts positions, for the year in which they are elected. Despite this, Saudi Arabia’s new power to recommend experts and influence the inner-workings of the U.N. human rights framework is disturbing.

In the wake of this recent mass execution, coupled with the irony of Trad’s election to the UN human rights group, a reexamination of the dreadful human rights situation in Saudi Arabia is more necessary than ever. Moreover, more attention must be paid to how the international community treats Saudi Arabia’s continuing human rights abuses with a starting double standard.

SAUDI ARABIA’S RAMPANT HUMAN RIGHTS ABUSES      

Saudi Arabia boasts one of the most dismal human rights records in the world. From gender inequality to lack of freedom of expression and widespread issues in the criminal justice system, the country is far from upholding its international human rights obligations.

Women face systemic discrimination based on their gender and remain subordinate to men legally and in practice. They are inadequately protected against sexual and gender-based violence, and encounter legal difficulties when pursuing claims based on marital issues, divorce, child custody and inheritance. Male guardianship over women (“mehrem”), although it may not be legally prescribed, seems to be widely accepted, severely limiting women’s freedoms, including their right to access education, get married and travel. In addition, women are not allowed to legally drive in Saudi Arabia and are banned from exposing parts of the body.

In the face of this criticism, the state has reaffirmed that their application of Sharia law guarantees fair gender equality and that their legislation does not differentiate between men and women. However, in 2008 (the latest report available online), the Committee on the Elimination of Discrimination Against Women pointed to the failure of the state party to fully incorporate the principle of equality between women and men and to define discrimination on the basis of sex within their legislation, an area that has yet to be addressed.

The criminal justice system in Saudi Arabia is plagued with human rights violations. Since there is no official penal code, judges and prosecutors can criminalize many types of behavior and activities. Many human rights organizations have noted that Saudi Arabian courts fail to respect due process and carry out unfair trails. Authorities arbitrary arrest and detain people for long periods of time, often for longer than six months without trial, in direct violation of the Convention Against Torture (CAT). Children are often detained arbitrarily and placed in detention conditions that do not comply with international standards set forth by the Convention on the Rights of a Child (CRC). Torture or inhumane treatment has reportedly been used to extract the pre-trial confessions, which have been the basis of convictions. Those convicted of crimes may be subject to cruel, degrading or inhumane punishments such as flogging or stoning. Saudi Arabia has also acted in violation of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) by targeting and arresting Shiite leaders and activists, imprisoning them after unfair trials and sometimes going so far as to issue death sentences for advocating for minority rights.

Furthermore, as evidenced by recent executions, freedom of speech, expression and assembly are extremely restricted in Saudi Arabia. Human rights defenders and those who speak out against the government face arrest, imprisonment, torture and execution. Since the government refuses to recognize or register political or human rights groups, citizens have no legal way to set up independent, non-charity organizations.

THE ALI AL-NIMR CASE: A FRIGHTENING EXAMPLE

One case that highlights Saudi Arabia’s problematic record on human rights—and the world’s compliance with the country’s abuses—is that of Ali Mohammed al-Nimr, nephew of recently executed Sheikh Nimr al-Nimr. Like his uncle, the charges upon which he was brought remain unclear—he was arrested for allegedly protesting the Saudi Arabian government when he was 17 years old. Ali al-Nimr, now 20 years old, faces a beheading execution sentence handed down by the Saudi Arabian courts last August. In addition, he has been sentenced to crucifixion after death to serve as a warning to others.

This extreme sentence has become a public representation of Saudi Arabia’s failure to comply with international human rights law. Ali al-Nimr’s sentence has been criticized as a violation of the CRC, which Saudi Arabia has ratified. In addition to this, Saudi Arabia has also been criticized for its failure to investigate reports of torture against Ali al-Nimr, in direct violation of the CAT, which they have also ratified. A group of independent U.N. experts have condemned the ruling, pointing out that unfair methods of torture were used to collect a confession, and called for a fair retrial. Among charges levied against him were being part of a terrorist organization, carrying weapons, and targeting security patrol cars.

There have also been reports that Ali al-Nimr was denied regular access to a lawyer, most notably at the time he signed a confession. The legal remedies he could have pursued, even with representation, are somewhat unclear. As discussed above, there is no formal penal code in Saudi Arabia—Islamic Sharia law is the law of the land and is used by judges based on precedent and the established rules of jurisprudence. There are however, regulations and laws passed by the government to cover broad offenses. Notably, their counter-terrorism laws have criminalized behavior such as “calling for atheist thought” or “contacting any groups or individuals opposed to the Kingdom”, which can be applied retrospectively. Amnesty International notes that the lack of clarity in the laws and judicial system is a violation of the international principle of legality, which provides that criminal liability be limited to clear and precise provisions, as well as Article 11 of the Universal Declaration of Human Rights (UDHR), which protects individuals from being prosecuted for “any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.”

Despite these blatant issues with Ali al-Nimr’s case, the United States and western allies of Saudi Arabia have remained deafeningly silent about his impending execution and crucifixion.

THE NEED FOR ACCOUNTABILITY

Perhaps the most difficult aspect of holding Saudi Arabia accountable for its human rights violations is the leniency and appeasement of the international community. During their Universal Period Review, the head of the delegation of Saudi Arabia reaffirmed Saudi Arabia’s commitment to respect and promote human rights and support the international mechanisms, particularly the UPR. But mounting evidence continues to show the opposite, especially in the wake of recent executions and the Ali al-Nimr decision. Although there are numerous U.N. reports criticizing the Saudi Arabia, they do not exist in a vacuum, and often times, resolutions and solutions can cave to the political and economic alliances between state parties. Addressing human rights violations within Saudi Arabia continues to be a problem of downplaying and politicking, as was evident when a coalition of mostly Western nations recently abandoned their call for an inquiry into human rights abuses in the conflict in Yemen, when faced with a sizeable Saudi Arabian opposition.

While the Islamic State faces international condemnation for its egregious human rights abuses, including beheadings and torture, similar abuses conducted in Saudi Arabia do not receive the same level of scrutiny from the United States and other western countries, largely because of the energy and security interests involved in Saudi Arabia. Saudi Arabia receives a level of deference to its human rights abuses not afforded to many other regimes on the international stage whose geopolitical and economic situations do not provide strategic value to influential states’ parties.

The numerous human rights violations of Saudi Arabia cannot be accepted as an inevitable truth—they cannot be brushed aside as the byproduct of a religious monarchy, nor can they give way to relationships built upon geopolitical instability and energy. They must instead be vigorously analyzed and pursued, out in the open. It is the imperative that the international community continues to have an open, critical discourse about the Saudi regime, in a way that so many within its borders do not have the freedom to do.

Sarah Ben-Moussa is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: Stephen Downes/Creative Commons


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Exxon’s poker-face: a probe into the oil giant’s deck raises questions about its climate change research, denial and actions

By Meric Sar

An ongoing investigation by the New York Attorney General into whether one of the world’s largest oil-producers misled markets about the risks posed by climate change may prove to be a groundbreaking and watershed moment. As other state and federal authorities are expected to pursue similar actions, it is becoming increasingly clear that the fossil fuel industry is facing a bolder regulatory environment, especially with regard to the integrity of the industry’s marketing and research practices. This trend is particularly meaningful when reviewed in tandem with the Obama Administration’s achievements in steering America and the world towards renewable energy, sustainability and energy independence.

THE INVESTIGATION INTO EXXON

The investigation began with a subpoena issued by Eric Schneiderman, New York Attorney General, to Exxon in early November 2015, requesting a massive discovery of Exxon’s corporate records going as far back as 1970s. The Attorney General is seeking to understand if Exxon breached New York State’s Martin Act by misleading the market and greater public about climate change.

For the prosecutor, a case could be built if enough evidence exists to prove that Exxon actually knew – or reasonably should have known – that climate change is real, but failed to properly disclose this information and its potential implications on the company’s business outlook. Since the risks associated with climate change would potentially hurt Exxon’s stock prices, Exxon may also be accused of causing market-price distortion by concealing this “inconvenient truth” and even orchestrating efforts to re-frame the public opinion, to the extent of substantially influencing “independent” scientific research on global warming.

Several investigative reports by Inside Climate News and the Los Angeles Times spurred Schneiderman’s investigation. These reports allegedly document that in 1970s, when global warming began attracting scientific attention, Exxon “assembled a brain trust [that deepened] the company’s understanding” of climate change. According to the reports, in the late 1980s, the company went into a policy change and adopted a strategy of “climate denial,” manufacturing “doubt about…global warming,” despite the potential research information available to the company that proves otherwise. For years, as a commercial company, Exxon has downplayed the possible effects of climate change-related regulations in public reports to investors by referring to the issue as “uncertain,” “difficult,” or “not possible” to reasonably predict.

FREE SPEECH AND CORPORATIONS 

According to some, lying is an ordinary American pastime, especially in politics, and this investigation represents a cynical and heavy-handed government action to curb free speech in the climate change debate. Yet, Exxon is not an ordinary citizen with a big mouth. Energy companies are savvy Washington juggernauts, and have been historically instrumental in shaping the policy debate and scientific discourse surrounding our understanding of climate change. Today, under a series of laws and court rulings, including the much-debated Citizens United case, corporations enjoy extensive free speech rights, which has been criticized by some as too broad and counter-intuitive to democracy. However, the exercise of political speech by a commercial enterprise can conflict with its other duties towards the market.

Under the U.S. Constitution, even dishonest or misleading political speech is generally accepted to be free, and punishment of people (or corporations) for expressing merely political speech is unconstitutional. However, restriction of free speech is common on various state and federal law grounds, especially in relation to securities fraud. In New York, the Martin Act gives state prosecutors broad powers to prosecute financial fraud, and sets a lower threshold to prove direct harm and causation in comparison to federal laws. The U.S. Securities and Exchange Commission (“SEC”) regulates and prohibits even truthful speech by companies in many situations. A duty of truthfulness about material business information for publicly traded companies is essential to balance the asymmetrical power of influence that the corporations are enjoying in shaping the U.S. politics, especially in the aftermath of the Citizens United.

THE MARTIN ACT OF NEW YORK

The Martin Act is an almost century-old New York state enforcement statute that predates the SEC. Originally, the law only conferred the power to pursue civil suits but was later amended to allow for criminal prosecutions. The Act gives broad powers to state prosecutors in issuing remedial measures to maintain the integrity of the markets. It has been used to stop Ponzi schemes, mortgage fraud and Wall Street abuses in the past. Hence, using it with respect to climate change may play a crucial role in bridging the shortcomings of federal authorities due to the legal constraints on their powers.

In his subpoena to Exxon, Schneiderman is seeking a myriad of documents related to Exxon’s internal research on the causes and effects of climate change, and how this information was used in business decisions, projects, analysis and communications with trade groups. Experts think the issue of what counts as a “material” information will be the decisive factor in the case. Not all undisclosed research is material information that needs to be disclosed to the public if the resulting information is obvious or otherwise generally available to the knowledge of investors. This, of course, entails another question: whether Exxon or other similarly situated energy companies are in a unique position, holding certain information that is not available to the rest of the world on the issue of climate change.

Exxon embraced the need to curb greenhouse gases in 2006, following the company’s change in its chairman and CEO. Since 2009, the Texas-based company has advocated for a revenue-neutral carbon tax as the fairest way to cap harmful emissions. According to the General Counsel of Exxon, the “[company] scientists have been involved in climate research and related policy analysis for more than 30 years, yielding more than 50 papers in peer-reviewed publications.” Its scientists have participated in the United Nations Intergovernmental Panel on Climate Change since its inception and were involved in the National Academy of Sciences review of the third U.S. National Climate Assessment Report.

Despite the rosy picture Exxon tries to paint, many environmental organization take issue with Exxon’s climate denial activities. In a 2007 report, the Union of Concerned Scientists accused the company of financing “a sophisticated disinformation campaign…to deceive the public” about global warming. The report argues that Exxon Mobil gave $16 million to 43 groups that preached climate change skepticism from 1998 to 2005. If Exxon knowingly lied or downplayed the risks of climate change to the public or investors, as the 2007 report argues, they may have broken the law.

RISE OF A GREENER REGULATORY CULTURE?

The current probe comes after the New York Attorney General Schneidermann reached a settlement with the largest U.S. coal mining company, Peabody Energy, after the company was accused of misleading investors about the financial risks of climate change. In the settlement, Peabody agreed to include more comprehensive disclosures in its disclosures to the market about the potential costs of climate-related regulations. Settlements such as this – although do not represent a binding judicial authority – reflect a growing consensus and a pattern of self-correcting behavior among the high echelons of the American economy, which is gearing up for a sustainable energy future.

A discussion on the causal link between climate change and the fossil fuel industry often slips away from having its day in the courtroom. A judicial inquiry into the truth of global climate change as a fact has been thus far too elusive for the courts to handle despite widespread consensus among the scientific community about the anthropogenic climate change. The magnitude of the phenomenon defies a conclusive study, and the divisive nature of the surrounding public debate moves the courts to defer to a regulatory culture that has been traditionally protective of the global interests of U.S. and global energy conglomerates – an industry that has been a historical stalwart of the U.S. economy. Whether this investigation ends in a trial or not, big changes may be on the horizon.

Meric Sar is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: Mike Mozart/Creative Commons


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How the Trans-Pacific Partnership fails human rights

By Rodrigo Bacus

On Nov. 5, 2015, the Obama administration released the full text of the Trans Pacific Partnership Agreement (TPP), triggering a three-month Congressional review for approval. The TPP was negotiated between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States, representing around 40 percent of the world economy. The TPP covers a broad range of topics including patents, intellectual property, labor trade, free trade, investments and the environment. Since 2008, the TPP has been negotiated in secret, attended mostly by large corporations and their lawyers, prompting criticism from various groups that were concerned over the effects of the agreement’s provisions. These concerns were exacerbated when WikiLeaks released some draft provisions of the agreement in 2013, confirming many groups’ fears over human rights protections in the agreement. The full 2015 text of the TPP has not made much of an improvement in its rights protection language since 2013, notably lacking any reference to the term “human rights” in any of its chapters. The TPP’s controversial provisions have prompted different rights organizations to actively campaign against the agreement, highlighting various issues relating to labor, the environment and healthcare. What’s worse is that the TPP’s primary enforcement mechanism, which prioritizes the rights of corporations, pulverizes national sovereignty in the interest of profit. Given these provisions, the TPP is deliberately set up to benefit private corporations and the global elite.

INADEQUATE LABOR RIGHTS 

The Office of the United States Trade Representative, among other supporters of TPP, promises that the agreement will “level the playing field” of labor rights and standards. Yet, the actual provisions of the TPP belie modest improvements to labor rights that do not address other important concerns of labor organizations around the world. The TPP does not reference the fundamental conventions of the International Labor Organization (ILO), which protect the right to organize, collective bargaining and equal remuneration, and also prohibit child labor, forced labor and discrimination. The agreement refers only to core labor rights in the ILO Declaration of 1998 and completely omits the core right to equal remuneration (sometimes referred to as “equal pay for men and women”). Lacking a reference to ILO Conventions limits the ability to hold state governments and corporations accountable to labor rights to the TPP’s enforcement mechanism. Failing to include the core right to equal remuneration ignores the impact that globalization and free trade has had on the welfare of women laborers around the world.

Moreover, the TPP allows for derogations from “acceptable conditions of work” if the company’s lowered standards do not otherwise impose forced labor, child labor, discrimination, or restrictions on collective bargaining and unionization. This means that a company does not have to meet minimum wage, work hours or health and safety standards so long as their conditions do not violate core labor rights, except for equal remuneration, and the company is outside of export processing zones or other special zones. As a result, most laborers are more vulnerable to violations of labor rights under the TPP.

Not to mention, the TPP omits reference to or protections related to other contemporary labor issues championed by labor organizations around the world. Many labor organizations have been pushing for the creation of a living wage standard, which takes into account the needs of laborers around the world as it is tied to their welfare and conditions inside and outside of work. The language suggested by labor rights organizations is reflected in the ILO’s Minimum Wage Fixing Recommendation, which makes the goal of the living wage standard “to overcome poverty and to ensure the satisfaction of the needs of all workers and their families.” In comparison, the TPP’s provision of adopting and maintaining “acceptable conditions of work” is weak, omitting the goal of standards of wage and labor conditions to address poverty and limiting the interpretation of “acceptable” to TPP’s self-contained enforcement mechanism.

WEAK ENVIRONMENTAL STANDARDS

There are similar concerns that the TPP’s provisions on environmental preservation are noncommittal, and trump actual obligations by nation-states under multilateral environmental conventions. The TPP does not prohibit the trade of lumber and wildlife products acquired through means that violate environmental laws, obligate countries to abide by trade-related provisions related to conservation or ban certain forms of industries that affect wildlife and environmental conservation. Instead, it asks countries “to combat” illegal trade, “endeavor not to undermine” country obligations to the conservation of fish and other industries and only “promote” the conservation of sharks and other species. The TPP’s language on environmental issues is essentially retrogressive of many multilateral environmental conventions that have been made in the past. Moreover, it only mentions one such multilateral environmental convention, the Convention on International Trade in Endangered Species of Wild Flora and Fauna, binding only the TPP signatories who are also parties to that convention.

Despite a global message from people’s movements fighting against climate change, the TPP makes no mention of “climate change” in its chapter on the environment. What it does have are weak provisions on emissions and the protection of the ozone layer. The low emissions provision only “acknowledges” a “transition” to a low emission economy. The provisions on the ozone layer only control the production, consumption and trade of substances in the Montreal Protocol on Substances that Deplete the Ozone Layer. The Montreal Protocol only lists various fluorocarbon gases known to deplete the ozone layer (CFCs, HCFCs and HFCs); it does not cover a wide range of other products that directly impact climate change, such as fossil fuels. The TPP does give corporations the ability to enforce their expectations of profit on fossil fuel extraction on signatory states through the TPP’s self-contained enforcement mechanism. Looking at analogous trade agreements suggests that such a mechanism will have a chilling and damaging effect on efforts to protect the environment. As an example, El Salvador’s choice to listen to its people and hold off on resource exploration to preserve the environment was met with an arbitration case with damage claims far exceeding the country’s GDP.

INADEQUATE ACCESS TO AND AVAILABILITY OF LIFESAVING MEDICINE 

The TPP’s provisions on intellectual property also raise concerns about healthcare and the access and availability of affordable lifesaving medication. Modeled after the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, the TPP’s patent provisions significantly strengthen the ability of pharmaceutical companies to easily acquire patents over newly developed medication and, in most cases, extend the monopoly period of such medication after the patent is acquired. In return, the TPP includes some “understandings” that merely “affirm” the signatories’ commitment to public health and provides for a limited option for countries to protect public health during health crisis situations. Countries may take other measures, but they are not otherwise obligated and are still subject to the TPP’s self-contained enforcement mechanisms when taking such measures, which will be discussed later.

The concerns related to access and availability of medication under TRIPS and similar agreements (generally known as TRIPS plus agreements) are well-known. The traditional intellectual property rights regime creates two problems when it comes to lifesaving medication. On the one hand, pharmaceutical companies are incentivized purely through sales profits when inventing medication, thus leaving inadequate incentive to research and develop products that save the lives of poor people. In addition, even if a company has created a particular medicine, the monopoly provisions of a traditional intellectual property regime allows the company to raise the drug prices for maximum profit, which makes it difficult, if not impossible, for the poor to afford the available medication. The provisions in the TPP do not address either problem of access to and availability of lifesaving medication, leaving states to address public health crises, such as HIV/AIDS, malaria and Ebola, with whatever methods or devices they had in the past. Yet, such practices could come under attack due to the private enforcement mechanism that is available only for corporations under the TPP, which will be discussed in-depth in the next section.

PROBLEMS WITH THE INVESTOR-STATE DISPUTE MECHANISM IN THE TPP 

The biggest problem with the TPP’s provisions is its overarching enforcement mechanism that uses private arbitration tribunals to resolve disputes between companies and states. Even if the TPP’s provisions on labor, environment, and health care were more rights-respecting, such an enforcement mechanism still highly favors companies over the interests of the signatory governments, let alone the people of those countries. An arbitration tribunal comprises of a panel of arbitrators, usually three individuals, who make decisions over a dispute between two parties. Because the arbitration is private, the parties are often under contract not to disclose the details of the case. However, unlike companies, states have to be accountable to their constituents, particularly relating to their obligations under human rights law. Investor-state arbitrations are still generally private affairs, with some cases released to the public under mounting pressure from people directly affected by them.

Investor-state disputes have also historically favored corporate interests over state interests. When analyzing disputes based on their merits, corporations win a favorable decision 60 percent of the time. Arbitration panels also tend to comprise of a small group of career arbitrators, with an “elite 15” making decisions in 55 percent of investment treaty cases. This essentially creates an oligarchy of arbitrators that favor corporate interests over the state or its people. Meanwhile, the interests of the people, including their human rights and dignity, are generally left out of such a dispute. In particular, under the TPP, states are unable to uphold human rights and other obligations because they are explicitly left out of the TPP’s provisions.

The most egregious issue with investor-state dispute arbitration is that only companies have a right of action against states. States do not have a right of action against companies under the TPP, although it provides for a right of action against other states. This means that while states cannot sue or take action against companies using the TPP’s mechanisms, companies can sue countries over the loss of their expected profits, even if these profits were lost due to regulations or actions in the public’s interest. This is of particular concern for indigenous peoples, who are not adequately protected under the TPP. The TPP does not include the concept of free, prior, and informed consent, one of the foremost protections that indigenous people have to protect and retain their land and resources. With such strong protections for corporations under the TPP enforcement mechanism, corporations will be free to exploit the ancestral lands of indigenous groups for gold, timber and other natural resources.

JUNK THE TPP

Right now, if the TPP is ratified, it will only bind signatory countries. However, more countries will be able to join the TPP once it comes into force. Members of the Asia Pacific Economic Cooperation (APEC), for example, have already expressed optimism about the TPP and their interest in creating a regional market hub after its passage. This means that the TPP has the potential to drastically alter the global economy and conditions for millions of people. The fact that corporations can act with impunity within the TPP framework while benefiting their bottom line tremendously has sparked condemnation and action from human rights organizations in opposition to the agreement. Many are concerned over the effects of TPP in the long term.

In the face of water cannons, tear gas, and other forms of severe state repression, protesters of the APEC Summit, held in the Philippines, protested the summit and the unveiling of the TPP. In the U.S., over 1,500 advocacy groups signed a letter opposing the TPP. And from Malaysia to Peru, protesters have gathered to urge their governments to not sign the treaty. Rights organizations have decried the TPP’s attack on “sovereignty, human rights [and] efforts to create sustainable communities and limit climate change.” Other activists and organizations, such as KARAPATAN, a Philippine human rights organization, have criticized the agreement as imperialist, advancing the expansionist ambitions of the United States over the Asia-Pacific. While the U.S. is expanding militarily through agreements such as the Enhanced Defense Cooperation Agreement in the Philippines, it is achieving economic expansion through the TPP. With much at stake, activists and groups are calling on countries to say #NotoTPP.

Rodrigo Bacus is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit: GlobalTradeWatch/Creative Commons


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Human rights of transgender individuals and finding hope in California’s policy for inmates to receive sex reassignment surgery

By Amaury A. Reyes-Torres

The LGBT movements in the U.S. and in Europe have taken significant steps towards legal equality and political change. However, much still remains to be done to ensure transgender rights. Many still face challenges related to their gender identity and its intersection with race, employment, equal access to accommodations and health. One such population is transgender inmates whose medical needs are often disregarded.

THE PROBLEM: MEDICAL TREATMENT FOR TRANSGENDER INMATES

Trans individuals are a vulnerable population in prisons. According to the National Center for Transgender Equality, almost one of every six trans individuals have been incarcerated at some point in their lives, and this ratio tends to increase dramatically when discussing trans black inmates. These inmates face a variety of challenges, including abuse from other prisoners and lack of adequate healthcare.

In particular, trans prisoners often lack the necessary facilities and healthcare options to make the transition to their chosen gender. Many trans people are not afforded hormone treatment or surgical procedures while incarcerated, consequently leading to or aggravating gender dysphoria, a serious medical condition often affecting trans individuals.

Gender dysphoria is “[t]he distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender,” according to the American Psychiatric Association. It is “characterized by a persistent and intense distress about assigned sex, together with a desire to be, or insistence that one is, of the other sex,” according to the World Health Organization. Gender dysphoria severely affects individual well-being, and may lead to depression and even death. Appropriate treatment of this condition includes hormone treatment and sex reassignment surgery.

Many prison rules are not conducive to beginning or continuing medical treatment for gender dysphoria. Despite their medical needs, transgender inmates are often denied necessary medical services on a daily basis. Freeze frame rules, which many prisons across the country still adhere to, only allows prisoners to receive hormone therapy if they had been receiving treatment prior to incarceration. Since many trans individuals buy hormones on the black market, they are not allowed to continue their hormone therapy due to a lack of medical documentation. This leads to a physical reversal of previous therapy and exacerbation of gender dysphoria. Trans individuals are also often denied beginning hormone therapy or undergoing sex reassignment surgery while in prison.

TRANSGENDER RIGHTS AND ADEQUATE MEDICAL TREATMENT AS A RIGHT

Under international human rights law, the lack of proper medical treatment for inmates is deemed cruel, inhuman or degrading treatment. The European Court of Human Rights has held that prisoners must be detained in a condition compatible with his or her human dignity, meaning that prison conditions must ensure prisoners’ health and well-being. There must be, according to the court, compatibility between the standard of treatment and the illness faced by the prisoner. By the same token, the Inter-American Court of Human Right has held that the government is a guarantor of the health of the inmates, and must provide inmates with necessary and adequate medical treatment when it is required. According to the United Nations Standard Minimum Rules for the Treatment of Prisoners, medical services shall be provided for the sake of the physical and mental health of the inmate.

This practice clarifies the scope of article 7 of the International Covenant on Civil and Political Rights (ICCPR), which forbids cruel, inhuman or degrading treatments. The ICCPR Human Rights Committee has held that a state party has a positive duty to maintain adequate standard of health for the inmate. A state party violates article 7 of the ICCPR when it does not afford inmates appropriate medical treatment.

These human rights laws can be applied in the context of transgender inmates in the U.S. Although the U.S. is a party to the ICCPR and other relevant international documents that obligate it to protect human rights, the U.S. does not consider itself directly bound by human rights treaties, as they are not self-executing. Nonetheless, the proliferation of references to the importance of providing healthcare to prisoners in international standards as a factor in ensuring human dignity reflects a trend in the development of international law and underscores the respect for prisoner rights and transgender rights. Furthermore, both through its obligation as a state party to the ICCPR and through the eighth amendment of the U.S. Constitution, the U.S. must prohibit cruel and unusual punishment. Therefore, a denial of adequate healthcare to prisoners may violate both the ICCPR and the U.S. Constitution.

In fact, in April 2015, a federal U.S. court ordered the State of California to provide a sex surgery reassignment to Michelle-Lael B. Norsworthy, a trans female prisoner in California. Bringing a claim under Section 1983, a civil rights remedy for constitutional rights violations, Norsworthy argued that the continuous refusal of the state to provide her with appropriate healthcare, including sex reassignment surgery, violated the eighth amendment. The court agreed, and held that the state acted with deliberate indifference to the medical needs and concerns of Norsworthy as an inmate.

Not only have the courts upheld trans rights in prison, but the Department of Justice filed a statement of interest in a similar case arguing that “[f]ailure to provide individualized and appropriate medical care for inmates suffering from gender dysphoria violates the Eighth Amendment’s prohibition on cruel and unusual punishment.” The United States considers gender dysphoria to be “a serious medical need requiring appropriate treatment,” the statement said. Thus, failure to provide adequate medical services to trans prisoners, including hormone therapy and sex reassignment surgery, is a cruel and usual punishment under both the eight amendment and article 7 of the ICCPR.

TRANSGENDER RIGHTS: CALIFORNIA GUIDELINES FOR SEX REASSIGNMENT SURGERY

Despite all the barriers that trans prisoners face in attaining adequate healthcare, there has been significant progress and reason to hope for a better future. Recently, California settled a case in which the state agreed to pay for a trans inmate’s sex reassignment surgery. In the aftermath of this settlement, California Prison Officials announced guidelines under which inmates could opt for sex reassignment surgery. This is a significant breakthrough. California has become the first state to sponsor this kind of measures in favor of trans inmates. Moreover, California has one of the largest inmate populations in the United States, making this decision even more meaningful.

Under the guidelines, an inmate requesting these services will submit an application to a committee (the Headquarters Utilization Management Committee), which will then refer the inmate to a subcommittee (the Sex Reassignment Surgery Review Committee) for evaluations and findings. The subcommittee will decide whether or not there are any medical reasons that justifies withholding the surgery until they are resolved or mitigated. They will also consider whether the treatment that the inmate is currently receiving is effective. Lastly, it will decide whether or not the candidate should receive sex reassignment surgery.

This process is a significant victory for trans rights and human rights overall. Undoubtedly, there will be further questions that will need to be answered, and this system will require oversight to see if this new proceeding is effective and rights-respecting. But this practice could set an example for other U.S. states and other countries facing similar situations in which proper healthcare services are being denied to trans inmates. Most importantly, California has set an example of how it is possible to fulfill human rights obligations using domestic mechanisms.

Amaury A. Reyes-Torres is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit: Joseph Kranak/Creative Commons


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Inadequate justice: the case of Jennifer Laude and the call to end unequal military agreements

By Rodrigo Bacus

On Dec. 1, 2015, Joseph Scott Pemberton, a U.S. marine, was found guilty by a Philippine court of homicide in the death of Jennifer Laude, a transgender Filipino citizen. It has been over a year since the beginning of the trial of Pemberton for the murder of Laude. Since that night, her friends, family, and advocates have strongly urged the U.S. and the Philippines to uphold the rule of law and ensure justice. While the conviction was a small, yet incomplete, victory, the greater issue that looms is the uneven power relationship between a country occupied by a foreign military presence, and the unjust arrangements produced as a result. Although the trial brought the case to a close, the justice that advocates sought is still far from achieved.

A DEATH

According to reports, on Oct. 11, 2014, Laude decided to have drinks with her friend Barbie, whose full name on government documents is Mark Clarence Gelviro. While in the bar, Ambyanz Night Life, Laude and Barbie met Pemberton, who was out on leave that night. Engaged to Marc Sueselbeck at the time, Laude had previously engaged in sex work off and on for six years, but had not done so for the past six months. That night, however, she decided to take customers as a way to compete with friends and have fun. After spending some time together, Laude agreed to leave with Pemberton. Laude, Barbie and Pemberton headed together to the Celzone Lodge, a nearby hotel. Barbie left Pemberton’s room to another part of the hotel and left Laude and Pemberton in the room alone. About 30 minutes later, Pemberton left the building. When he returned to his ship, he confessed what happened that night to his roommate, Jairn Rose, who listened as Pemberton told him about the two girls he met. Pemberton said he had noticed that when Laude undressed, she had a penis. Out of rage, he said he choked her from behind and then, when her body stopped moving, dragged her to the bathroom and left. “I think I killed a he-she,” Pemberton said, assuring his friend that he was serious.

Later that night, a hotel employee found Laude naked and dead with her head submerged in the bathroom toilet. Pemberton was the last person seen with Laude that night. Local police arrived at the crime scene, as well as a team from the Naval Criminal Investigative Service, which seemed to have knowledge that the incident involved an American serviceman even before Pemberton confessed to Rose. At this time, local authorities had neither brought Pemberton in for questioning nor requested an affidavit. Soon after, the police released an official report confirming that Laude had died due to asphyxia. Laude’s mom, upon hearing about the incident, took a 24-hour bus to where Jennifer lived and was surprised that the government had not taken any action. Four days later, lacking assurance from the government that they would move forward with a case, Laude’s family filed a murder complaint against Pemberton.

A CASE

As the case began, the Philippine court subpoenaed Pemberton for the preliminary investigation, but he was aboard the USS Peleliu at the time and did not appear. In a statement, Philip Goldberg, American Ambassador to the Philippines, cited the Visiting Forces Agreement (VFA), a bilateral agreement between the Philippines and the United States, as a reason why a U.S. ship held Pemberton in custody instead of a local precinct. Under the VFA, the U.S. can request the ability to retain custody over a suspect until judicial proceedings are completed. The U.S. invoked its ability to do so without a formal request, stating that it is its right under the agreement to exercise this power. The decision sparked outrage and united many activist groups and human rights defenders, some calling the incident a “hate crime.” It took until December 2014 to issue an arrest warrant for Pemberton, though the US had moved Pemberton to a Philippine army camp while still retaining custody of him in late October 2014. Pemberton stayed in a room within the camp and was guarded by US soldiers.

About a year after the incident, Pemberton finally appeared in court for the first time to recite his testimony of events to the public. Pemberton testified that he and Laude had begun to fight once he discovered that Laude had a penis. Pemberton pushed Laude. Laude slapped him. He punched her and then put her in a chokehold until she was no longer moving. Then, he tried to revive her in the bathroom over the toilet and eventually left in a taxi. The defense attorney wrote in an email to the New York Times that Pemberton did not kill Laude and had left her alive in the bathroom. The defense included this testimony to introduce complicating circumstances, including self-defense and the controversial trans panic defense. The trans panic defense attempts to equate the shock of discovering that a person is gay or trans to traditional scenarios where a “sudden quarrel” or the “heat of passion” would make it less likely that a person actually had malicious intent to kill another. Defendants have used the argument to persuade courts and juries to base rulings on unjust and damaging stereotypes about LGBT victims. California banned the trans panic defense in 2014, referring to the discriminatory effects it had on LGBT victims. The Philippine court had the opportunity with Laude’s case to decide that the use of such a defense in the Philippines is equally unacceptable.

INADEQUATE JUSTICE

On Dec. 1st 2015, the court found Pemberton guilty of the lower charge of homicide, which has a sentence of between six to 12 years. The court found that evidence supported the fact that Pemberton had killed Laude. However, it lowered the conviction from murder to homicide. The court was convinced that Pemberton should be considered less blameworthy for Laude’s death because Laude had kept the fact that she is a trans woman from Pemberton. Activists and supporters of Laude criticized the court’s consideration of this fact to lower the charge. By its finding, the court has tacitly admitted that the trans panic defense is a valid way to get away with murder.

In addition to their criticism of the validation of the trans panic defense, supporters of Laude have also criticized the actual enforcement of justice in this case. As soon as the court rendered the guilty judgment, U.S. troops in Camp Aguinaldo, where Pemberton is held, moved to block attempts by police to take Pemberton to custody. Because of the VFA, the U.S. has power to influence the determination of where Pemberton can serve his sentence. The agreement does not give the Philippine government the same power if the roles were reversed. Activists criticized the agreement and its practical effects in this case as yet another intrusion into Philippine sovereignty and another impediment to achieving justice.

For activists, Laude’s case is yet another reminder of how unequal agreements can allow one side to commit crimes with impunity. For instance, without active intervention by supporters of Laude, Pemberton’s case may have never been filed or given any attention in the first place. Moreover, activists had to ensure that Pemberton was not removed from the country. Finally, even at the point of judgment, Pemberton was given a lesser sentence for using a highly controversial defense, and has not yet been taken into custody.

BEYOND THE CASE: UNJUST TREATIES

Beyond Laude’s case, activists see unequal and unjust defense treaties as the overarching issue. Human rights group, KARAPATAN, actively condemns bilateral defense agreements such as the VFA and supports their cancellation. In its statement, KARAPATAN underscores that the death of Laude is not just a marker of the violence that trans people face globally, but also of the impunity by which American soldiers can conduct themselves due to the unequal agreements that protect them while failing to protect the rights of certain communities in the Philippines. KARAPATAN has documented five other cases in which Filipinos died as a result of actions by or in service of U.S. military troops, without any justice or accountability for those deaths.

In regions of the Philippines where the U.S. military has a strong presence, complicated relationships between communities also arise. For example, most people in region where Laude died value the business of American soldiers, and some even blamed Laude for the recent drop in business. However, trans and LGBT people, among others, face beatings, discrimination and other abuse from American soldiers, who do not fear punishment or accountability. They are increasingly frustrated by continuing abuses and injustice.

Meanwhile, the Philippine government recently signed a tighter supplemental agreement to the VFA with the United States, the Enhanced Defense Cooperation Agreement (EDCA). With EDCA, U.S. soldiers no longer have to stay temporarily as “visitors,” and the U.S. can deploy them to any agreed upon location in the Philippines. KARAPATAN predicts a surge in human rights violations and further erosion of Philippine sovereignty, which were the very reasons U.S. naval bases in the Philippines were closed in 1991. Furthermore, increased funding from the U.S. based on EDCA has strengthened the current regime’s counterinsurgency military campaign, Oplan Bayanihan, which has spurred human rights violations in Southern Philippines where 50 percent of Philippine forces are located.

In the face of this, human rights defenders are calling for justice for Filipinos who have experienced human rights abuses at the hands of the U.S. military. They are urging the Philippine government to revoke unequal bilateral defense agreements such as the VFA and EDCA. Most importantly, they are seeking solidarity in bringing to light the violence faced by the LGBT community and in securing LGBT rights as guaranteed under international human rights law.

Rodrigo Bacus is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo Credit: U.S. Pacific Fleet/Creative Commons


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United States drone strikes: legal mechanisms and controversy

By Sarah Ben-Moussa

As the nature of warfare and military endeavors continues to evolve, one of the most controversial topics continues to be unmanned aerial vehicles (UAVs) and remotely piloted aerial systems (RPAS), more commonly known as drones. They have been mostly used in situations where manned flight is considered to be too dangerous or difficult, in an effort to prevent intrusive military operations. Their use began under the administration of President George W. Bush, and has since increased under President Barack Obama’s administration, becoming a favored military strategy in recent years, despite international and domestic criticism. There is has been a growing and widespread concern for civilian casualties as a result of the use of drones, especially after January of this year, when President Obama faced public backlash over the drone strike that killed Warren Weinstein, a 73-year-old American aid worker, and the Italian hostage, Giovanni Lo Porto, 37.

In a 2013 statement to the National Defense University, President Obama defended the legality of the drone program, stating, “America’s actions are legal. We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces.” However, are drone strikes legal under domestic and international law? And what are their human rights implications?

DOMESTIC LAW AND THE AUTHORIZATION FOR THE USE OF MILITARY FORCE

Domestically, the justification for drone strikes has largely come from the Authorization for the Use of Military Force (AUMF), a congressional act passed in 2001, shortly after the Sept. 11 attacks. The original text of the act authorizes the President of United States “to use all necessary and appropriate force” against those they determine to be involved in the terrorist attacks that occurred on September 11, 2001.

The Act, which has not been revised since its passage in 2001, remains the principle justification for military force against Al-Qaeda and its associates, including the use of drone strikes. Only 60 words in length, it does not speak specifically to the use of drones, nor does it address the subsidiary groups and evolutions of Al-Qaeda that have risen in the last fourteen years. But the language “all necessary and appropriate force” has allowed presidential administrations to interpret the authorizations broadly, allowing for continued and growing targeted killing operations in Afghanistan, Yemen, Pakistan and Somalia.

There have been many critics of the continued use of the AUMF, both from Democrats and Republicans, asserting that the original purpose of the statute does not conform with the changing nature of war. As terrorist groups continue to grow and evolve, the AUMF is used as a blank check for the U.S. to engage in a sort of “forever war,” without seeking Congressional reauthorization for involvement in new conflicts. Moreover, legal scholars have argued that the law may not authorize the targeted killings of those who are indirectly or loosely associated with Al-Qaeda. Critics have expressed concern over the United States’ legal ability to use drones on Americans. Some have also said that the current drone program, which targets individuals in Yemen or Somalia without establishing clear ties between them and Al-Qaeda, is based on an overly-broad interpretation of the AUMF.

Many have called for a revision of the law, which continues to allow such broad presidential powers. These revisions are becoming more pertinent as questions arise about if the AUMF can extend in legal scope to justify military force against the Islamic State in Syria (ISIS), which did not exist at the time of the Sept. 11 attacks, and thus, does not fall under the original parameters of the AUMF.

There are currently two proposed amendments to the law that seek to approve military force in Iraq and Syria. The White House proposed a version that would allow the President to use the armed forces as he determines necessary against ISIS and associated groups, subject to a reauthorization of the act every three years. Despite the administration’s insistence that the proposed bill would not authorize long-term, large-scale ground operations, many criticized the text of the statute as too broad, leaving wide discretionary use of power to use the armed forces. A subsequent revised proposal made by members of Congress sought to confine the authorization of military force to only ISIS, and decrease the scope of presidential discretion. Both proposed versions would limit their reauthorization to three years.

Despite their differences, the language of both bills does not address or regulate the use of drones. The nature of warfare is changing in a way that the world has not seen before. Thus, it is imperative that our laws and authorizations to use military force address the changing nature of war, including the use and regulation of drones.

INTERNATIONAL LEGAL CONCERNS

The predominant concern in assessing the legality of drone strikes under international law is the risk to civilian life. In their May 2010 report, the U.N. Human Rights Council (HRC) took up the issue of “targeted killings,” a term not previously defined in international law. While the term has been used in a variety of contexts, including the use of drones, the HRC has interpreted it to encompass times when lethal force is intentionally and deliberately used, with a degree of pre-meditation, against an individual or individuals specifically identified in advance. The United States has adapted the military tactic of targeted killings in other countries since the attacks on Sept. 11, 2001, causing concern in the international legal community.

The international legal argument on drones involves three principal considerations. Under international humanitarian law, targeted killing is only lawful in times of armed conflict when a target in question is a “combatant” or “fighter.” In the case of a civilian, it is only lawful during the time a person “directly participates in hostilities.” Given the changing landscape of warfare, the exact definition of these terms continues to be the subject of an ongoing legal debate.

Under human rights law, a killing by a state is only legal if it is required to protect life and there are no other means, of preventing that threat to life. In the case of targeted killings across state borders, the HRC clarified that targeted killings conducted outside of the territory of a country’s borders does not violate sovereignty if the other state consents. Furthermore, it is legal if the country conducting the killing is doing so in self-defense under Article 51 of the UN Charter because the other country is unwilling or unable to stop armed attacks launched from its territory. International law permits the use of lethal force in self-defense in response to an “armed attack” as long as that force is necessary and proportionate.

The United States argues that its actions are in compliance with international law because the U.S. is in an armed conflict with Al Qaeda, as well as the Taliban and associated forces. The U.S. further asserts that the targeted killings they conduct fall within the scope of the self-defense as defined under the Article 51 of the UN Charter. Thus, in the case of Syria and ISIS, it is imperative for the U.S. to reauthorize the AUMF in order to meet the definition of “armed conflict.”

However, despite this defense, the HRC pointed to a number of concerns with the U.S. legal justification, including: “the scope of the armed conflict in which the US asserts it is engaged, the criteria for individuals who may be targeted and killed, the existence of any substantive or procedural safeguards to ensure the legality and accuracy of killings, and the existence of accountability mechanisms.” The U.S. may continue to encounter similar international scrutiny in Syria as in the conflicts in Afghanistan, Pakistan, and Somalia.

CONTROVERSIES OF THE DRONE PROGRAM

The U.S. continues to face backlash over its drone program, especially in Pakistan. The Pakistani government has called for the immediate cessation of the drone program. Even so, it doesn’t seem as though future development of the drone program will halt. The administration has defended its reliance on drones as a way to decrease the effectiveness of terrorists groups, such as Al-Qaeda, who operate in remote areas. Obama has also argued that this program achieves its military objectives while avoiding civilian causalities with “near certainty.”

Despite recent controversy, and many doubting the effectiveness of drones in reducing civilian causalities, research has shown that the civilian causality rate under the drone program has actually been dropping since 2008. The number of civilians and unknowns (persons who cannot be identified) reported killed by drones in Pakistan from the beginning of President Obama’s tenure to 2011 represented 11 percent of fatalities, and in 2012 went down to 2 percent (as compared to 33 percent in the previous administration). Additionally, since 2004, the drone campaign has killed at least 49 militant leaders.

It may be the case that the United States’ reliance on drones in conducting warfare is beneficial in the long term. Proponents of the program have strong arguments for its use as opposed to traditional methods of warfare, especially in the light of evolving terrorists’ threats against the U.S. and other states. The legality of the drone program continues to be debatable, depending on whose interpretation you are relying on. But one thing remains certain: there can be no denying the tragic sense of loss faced by those who are affected by civilian causalities. Our analysis cannot be rooted in a simple cost-benefit inquiry, nor an understanding of legal mechanisms, but must instead look at the issue from a humanitarian perspective. It is imperative for the United States to increase its transparency and administrative regulation when it comes to its drone program, while also balancing prevailing national security interests. The U.S. must institute national review mechanisms of the drone program and ensure continued research into increasing technological effectiveness and accountability. Above all, the U.S. must demonstrate the utmost commitment to the sanctity of civilian life.

Sarah Ben-Moussa is a Staff Writer for Rights Wire.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit: U.S. Air Force photo/Staff Sgt. Brian Ferguson/Creative Commons


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Taking human rights back to the streets: Bell v. City of Boise and homelessness

By Amaury A. Reyes-Torres

According to the National Alliance to End Homelessness, around 578,400 people in the United States experienced homelessness in a single night in January 2014. Over the past year and a half, this number may have increased due to job insecurity, extreme poverty and inadequate access to mental health services, among other reasons.

Many states are currently experiencing a real deficit of available space to house homeless individuals, resulting in numerous people not being able to stay at shelters. These individuals have no other choice but to sleep on sidewalks, in parks or under highways. Laws passed to criminalize this conduct and homelessness itself has serious human rights implications and raises inequality concerns.

HOMELESSNESS AND CITY ORDINANCES: CRIMINALIZED WITHOUT A CHOICE

According to the National Law Center on Homelessness and Poverty, a growing number of local governments across the country have passed ordinances that criminalize sleeping on the streets, camping, panhandling and other public conduct that many homeless individuals engage in to survive. There are two fundamental problems with these types of ordinances. First, many cities lack sufficient space to otherwise provide adequate accommodations for the homeless. Second, cities that pass ordinances like these fail to consider that the presence of the homeless in public places is not a matter of choice. Many homeless individuals are forced to live on the streets due to circumstances beyond their control, such as a lack of shelter space. They have no place to go, and because of this, they are punished.

A recent case in Idaho is challenging these types of ordinances, with vast implications for ensuring human rights protections under domestic U.S. law. The case, Bell v. City of Boise, was brought by homeless individuals convicted for camping and sleeping in public places. They claim the ordinances passed by the city of Boise that criminalize certain public activities violate their constitutional rights because these laws impose a punishment when there is not adequate and available space to shelter.

In a recent statement of interest for the case, the Obama Administration argued that the court should consider the enforcement of these ordinances as Eighth Amendment violations when there is no available shelter space. According the administration, these ordinances are doing nothing but criminalizing the homeless who have no other choice but to sleep in the streets. Under these circumstances, the mere fact of being homeless, rather than any conduct, is being punished.

The Supreme Court has ruled that laws that punish status instead of conduct are unconstitutional. In the view of the Obama Administration, this is exactly what is happening with the homeless because “…the conduct of sleeping in a public place is indistinguishable from the status of homelessness” when there is no space available to perform a fundamental human activity like sleeping. When there are shelters available to accommodate the homeless, sleep is possible. But when no accommodation is possible due to the lack of shelter space, the homeless resort to public places to secure a place where an unavoidable need can be satisfied. Criminalizing this action is a punishment not for the conduct of sleeping in public places, but for homelessness itself. Therefore, such ordinances violate the Eighth Amendment right to be free from cruel and unusual punishment .

There is nothing new about this proposition. In Jones v. City of Los Angeles, the Ninth Circuit Court of Appeals ruled that the enforcement of ordinances prohibiting sleeping, sitting or sleeping in public as unconstitutional under the Eighth Amendment. Following this persuasive precedent, the current administration is asking the court to hold that punishing homeless people for sleeping in the streets when they have no other place to go is a cruel and usual punishment. Although Jones was vacated as result of a settlement, its reasoning is still important, and the court should use this legal framework when considering the constitutionality of the law in question.

The Obama Administration is also concerned with the consequences of these measures. It can be reasonably inferred from the submitted brief that there is a relationship between the cycle of poverty and criminalization. In fact, criminalization of homelessness neither increases society’s well-being nor attacks the causes of homelessness. As a result of this bad policy, the government fails to both reduce homelessness and to meaningfully include the homeless in civil and political life due to the stigma created by a criminal record for sleeping in the streets.

HOMELESSNES AND HUMAN RIGHTS

The criminalization of homeless is not just illegal under the Eighth Amendment, but also under Article 7 of the International Convent of Civil and Political Rights (ICCPR), to which the United States is a party. The United States understands Article 7’s prohibition of cruel and degrading punishment as cruel and unusual punishment under the Eighth Amendment. And if by criminalizing the homeless for not having a place to go to sleep violates the Eighth Amendment, then it also violates Article 7 of the ICCPR.

In 2014, the U.N. Human Rights Committee expressed its concerns regarding the criminalization of the homelessness in certain areas, despite efforts made by the U.S. Moreover, the committee not only said this situation raises concerns about cruel, inhuman or degrading treatment, but also of discrimination. Raquel Rolnik, the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living and on the right to non-discrimination in this context, also noted in his 2010 country visit report that the rise of local ordinances in the U.S. prohibiting various activities in public simply serve to punish homeless individuals, rather than addressing the lack of affordable housing, a root cause of homelessness. When adequate shelter space is unavailable, “homeless persons should be allowed to shelter themselves in public areas,” the Special Rapporteur said. After his visit, the U.S. Interagency Council on Homelessness and Department of Justice released a report in 2012 stating that these criminalization policies are not only illegal under domestic U.S. law, but may also violate the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), of which the U.S. is a state party.

The criminalization of homelessness also raises important economic, social and cultural rights concerns. The United States Constitution does not protect economic, social and cultural rights explicitly, nor is it a state party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). The U.S. is a signatory to the ICESCR, and as such it has the obligation not to violate the object and purpose of that treaty. It is also important to remember that all rights are interconnected and each right has economic, social, cultural, civil or political rights implications. A violation of a civil right like that protected under the Eighth Amendment may have social and economic consequences. In fact, the principle of interdependence is one of the core principles of human rights, meaning that civil and political rights are inextricably tied to social, economic, cultural rights. According to the 1993 Vienna Declaration and Programme of Action, “[a]ll human rights are universal, indivisible and interdependent and interrelated,” and states must work to ensure all fundamental freedoms. The Inter-American Human Rights Court has further interpreted this concept to mean that there is an “…interdependence that exists between civil and political rights and economic, social and cultural rights, since they should be fully understood as human rights, without any rank and enforceable in all the cases before competent authorities.” The European Court of Human Rights reached a similar conclusion in its landmark judgment in Airy v. Ireland.

Under the U.S. Bill of Rights, the state does not have legal duty to provide shelter. However, the New York Constitution protects the “right to shelter” in article XVII. Moreover, cities, states and the federal government have a duty to refrain from violating federal constitutional rights, which mirror basic human rights. Fulfilling this obligation may even lead to the protection of social and economic rights through the provision of adequate shelters or other social welfare measures. As the Special Rapporteur on the Right to Adequate Housing noted in his 2010 report, the government should create constructive alternatives to the criminalization of homelessness, and may even need to increase housing stocks or assistance to ensure that rights are not violated.

INTERSECTIONALITY AND EQUAL PROTECTION

Not only do these ordinances violate the Eighth Amendment and the ICCPR, but they are also discriminatory in nature. According to the Substance Abuse and Mental Health Services Administration, a large number of the homeless population is composed of ethnic, sexual and other minorities. A report by the Office of Community Planning and Development reveals that almost 60 percent of the people who are currently homeless are non-white. And, a study led by researchers at Seattle University School of Law, found that of the homeless population, almost 42 percent are African Americans; 20 percent are Hispanics, 4 percent are Native American; and 2 percent are Asian. Also, 20 to 40 percent of homeless youth identify themselves as LGBTQ. This alarming data shows that certain groups are disproportionately affected by laws that criminalize homelessness, potentially in violation of protections under the ICCPR and the International Convention on the Elimination of All Forms of Discrimination (ICERD).

Indeed, a report by the U.N. Committee on the Elimination of All Forms of Racial Discrimination against Racial Discrimination on the U.S. said the Committee was “concerned at the high number of homeless persons, who are disproportionately from racial and ethnic minorities, Particularly African Americans, Hispanic/Latino Americans and Native Americans, and at the criminalization of homelessness through laws that prohibit activities such as loitering, camping, begging and lying down in public spaces (arts. 2 and 5 (e) [of ICERD])”.

The problem is not only how homelessness affects these minority groups, but also how historically marginalized and vulnerable groups are far from being equal under the law. The social discrimination suffered by homeless individuals is the product of multiple, intersecting factors, such as race, gender, sexual orientation and socioeconomic class. The homeless thus not only have to put up with the burden of living in the streets and having no place to go, but also face a particular form of intersectional discrimination. The aggregated effect of this discrimination does nothing more than perpetuate the exclusion of the homeless from civil, social and political life.

CONCLUSION

As cities across the nation are enforcing ordinances that punish camping or sleeping in public places, it is important to remember that criminalization is a last resort in democratic societies. When laws begin to punish victims instead of fighting the causes of homelessness, they perpetuate the cycle of poverty, injustice and inequality. It is never too late for the United States to live up to its human rights obligations under the ICCPR and the ICERD, as it works to fulfill its domestic constitutional rights and guarantees.

Amaury A. Reyes-Torres is a Staff Writer for Rights Wire

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit: Tomas Castelazo/Creative Commons


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Human rights and U.S. foreign policy: history, funding, data and action

By Shruti Banerjee

In recent years, we have seen an increase in authoritarian regimes rejecting democratic values and committing human rights violations. This crackdown on civil society poses an enormous threat to economic and political stability, making it a central issue to consider in U.S. foreign policy. To respond to these crises, the U.S. has allocated foreign policy funds with the intention of promoting democratic governments, creating allies, ensuring peace and security, stabilizing economies and trade, regulating immigration and preventing human rights violations. Unfortunately, the foreign affairs budget, which provides an invaluable set of tools for advancing U.S. foreign policy interests, represents less than 1 percent of the annual U.S. budget, and is subject to more cuts, if both Houses reject the President’s recent request for more funding.

By analyzing the political history of integrating human rights into U.S. foreign policy, the issues with funding, the lack of data and U.S. credibility, it becomes clear that effective human rights advocacy requires multiple factors to function in harmony with each other, including: political discourse, laws protecting human rights, foreign funding that has a non-negotiable component requiring compliance with human rights policies, U.S. compliance with international laws and accurate data to help properly document and fully gauge the threat posed by human rights violations. This means competing political or economic interests cannot completely overshadow the value of rights-respecting institutions and policies.

HUMAN RIGHTS PROMOTION AND U.S. FOREIGN POLICY

Despite the U.S.’ rise to superpower status after World War II, human rights did not become a central concern of the U.S. foreign policy agenda until the late 1970s. Congress was urged to push a human rights agenda by the public, which included human rights advocates, lawyers, scientists, labor unions and church groups, who all agreed that the U.S. had created a negative global presence by the late 1970s. As awareness grew around incidents like Watergate, the Vietnam War, carpet bombing in Cambodia and the U.S. support of police states in South and Central America, Congress was finally compelled to include human rights as a central topic in foreign policy and legislation. In 1974, a subcommittee of the House Foreign Affairs Committee issued the report, “Human Rights in the World Community: A Call for US Leadership.” It recommended that the Department of State makes human rights a priority in foreign policy, arguing that the current policy had led the US “into embracing governments which practice torture and unabashedly violate almost every human rights guarantee pronounced by the world community.” Congress proceeded to pass legislation that required reports on human rights violations for every country receiving aid from the U.S. and prohibited economic and military assistance to governments repeatedly violating human rights unless national security or humanitarian aid concerns justified the assistance.

While Congress was pushed by their constituents to make fundamental changes in their approach to human rights, other powerful government officials disagreed. In his book, Partners in Power: Nixon and Kissinger, Robert Dallek documented the influences and policies of Kissinger and Nixon that led to high tensions between the Executive Branch and Congress during the Nixon Administration. When Henry Kissinger was confirmed as Secretary of State in 1973 he argued that it would be dangerous for the U.S. to make “the domestic policy of countries around the world a direct objective of US foreign policy.” The policy of realpolitik embraced by Kissinger, and subsequently the Ford administration, excluded human rights calculations. Kissinger believed human rights considerations would damage bilateral relations with U.S. allies and thwart efforts to contain the spread of communism. Under his leadership, Congress and the Executive Branch engaged in a struggle over the prominence and relevance of human rights to the U.S.’ foreign policy agenda.

It was not until 1977, with the election of President Jimmy Carter, that human rights became integrated with U.S. foreign policy. Carter argued that advancing freedom internationally would protect our national security, promote economic interests and help the U.S. regain its lost moral credibility. More specifically, Carter maintained that U.S. national security would be enhanced by the expansion of human rights and democracy around the world and that the US was obligated under international law to promote human rights abroad. Carter and subsequent administrations utilized numerous tools to promote human rights internationally, including powerful political rhetoric, sanctions, symbolic gestures of support and peace and economic and military aid. While Carter was accused of failing to thwart the threat of communism because of these policies, he promoted more awareness and governmental action on human rights issues than any administration prior.

It is important to note that attention to human rights issues do not fall squarely within political lines. Democratic and republican administrations both succeed and failed at acknowledging and preventing human rights violations. For example, President Clinton has said that his administration’s failure to respond to the Rwandan genocide was his greatest regret during his presidency and his senior aides regularly apologize for this. On the other side, the Reagan Administration provided both Liberia and Somalia with arms in the 1980s, building up the oppressive regimes of Samuel Doe and Siad Barre. While the U.S. successfully prevented Soviet influence in those countries, the lack of consideration for democracy and human rights led both Liberia and Somalia to become failed states, rampant with human rights violations. Our political rhetoric towards human rights abuses may have changed since the Carter era, but our policies and funding have not caught up.

FUNDING FOR FOREIGN AID, HUMAN RIGHTS AND DATA COLLECTION

The U.S. foreign affairs budget represents a mere 1 percent of the annual budget and recent changes in the U.S. political climate have made it significantly harder for the Obama Administration to push for more foreign aid and human rights funding. The tensions in passing budgetary laws can be seen in the current Fiscal Year 2016 (FY16) budget battle. Despite Obama Administration’s request for $47.8 billion in base funding for FY16, the House Appropriations Committee has only approved a $40.5 billion base budget, and the Senate Appropriations Committee has only approved a budget of $39.0 billion in base funding. (Base funding represents the U.S.’ continuing commitment to foreign policy missions and national security; the International Affairs budget also comprises of an Overseas Contingency Operations budget to be used in temporary emergencies.) Furthermore, the International Affairs budget has seen a general decrease in funding over the past few years, with overall FY15 funding ($50.9 billion) being 16 percent below FY10 ($56.6 billion), and base funding ($41.6 billion) reduced by nearly 20 percent from FY10 ($51.5 billion). This decrease during a time of increasing human rights and humanitarian crises is unacceptable. Moreover, accepting either the House or Senate budgets, both of which decreases International Affairs funding dramatically from the Administration’s original request and from FY10, would have detrimental effects on the ability of the State Department and the U.S. Agency for International Development to continue promoting democratic governments, creating allies, ensuring peace and security, stabilizing economies and trade, regulating immigration and preventing human rights violations.

Aside from the fact that both proposed budgets drastically cuts an already miniscule budget, another major issue is that U.S. aid often goes to countries with poor human rights records. While our leaders have denounced continuing human rights violations in strong political rhetoric, our funding, policies and legislation have not yet matched this discourse. A stark example of this is the U.S.’s continued aid to Egypt after the government committed serious human rights violations, which were internationally documented by various human rights groups, journalists and social media platforms. Instead of instating a non-negotiable human rights compliance clause for foreign aid, the U.S. waived conditionality requirements on aid to Egypt.

It is also highly debated which countries should receive funding and which abuses require more attention and aid. These problems can be somewhat alleviated by increased transparency and disclosure of governmental reports on human rights conditions in various countries, pursuant to the Foreign Assistance Act. Extensive data collection on human rights violations occurring in countries that are not currently receiving U.S. aid is another important solution. According to Foreign Affairs, these efforts are particularly crucial in countries such as Russia, Ethiopia and Kenya, where governments are actively passing laws restricting the work of NGOs and human rights groups. This includes making it difficult to register with the government, organize public events and collect data on human rights abuses. These same regimes are also passing laws making it more difficult for their citizens to be politically critical, organize demonstrations or voice opposing opinions on the internet. Accurate data is an integral part of effective advocacy and legislating and more transparency and data collection on human rights abuses is vital for documenting, analyzing and preventing these atrocities from continuously occurring.

EFFECTIVELY PROMOTING HUMAN RIGHTS DOMESTICALLY AND ABROAD

What would a compelling, rights-based foreign policy look like? According to a statement by the Brookings Institute, the first criteria for effective human rights promotion is credibility. Put simply, a government cannot promote human rights abroad if it is not observing them domestically and internationally. As discussed in previous articles, the U.S. violates human rights policies on its own soil by failing to prevent hate crimes and domestic violence. Furthermore, the U.S. is struggling with rampant police brutality, structural racism and inhumane prison conditions at home, as well as torture abroad. Our lack of credibility in human rights prevention and promotion has made it difficult for other countries to take us seriously and respect international human rights law. Moreover, human rights cannot be used as a pretext for pushing other foreign policy goals, such as engaging in a foreign conflict or accomplishing a domestic political goal.

In order to effectively promote human rights abroad, the U.S. needs to start by complying with human rights laws while actively promoting their implementation abroad. This requires making human rights a fundamental part of our foreign policy through rhetoric, political pressure and funding. More specifically, we must view human rights not solely as a moral or religious obligation, but as a fundamental tool to increase peace, security and economic prosperity around the world. In their book The Spirit Level: Why More Equal Societies Almost Always Do Better, Kate Pickett and Richard Wilkinson found that more equal societies with less violence have a greater overall quality of life, not just for poor people, but for all income classes. Wilkinson and Pickett’s analysis can be extended to the international community: We can achieve greater economic and social prosperity in our own country by abiding by human rights laws and promoting equality abroad.

Shruti Banerjee is a Staff Writer for Rights Wire.

Photo credit: Stephen Melkisethian/Creative Commons


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The human rights implications of gun regulation in the United States

By Shruti Banerjee

The United States has more firearm ownership and gun-related deaths than any other developed country in the world, according to a recent study conducted by cardiologists Sripal Bangalore of NYU Langone Medical Center and Franz Messerli of St. Luke’s Medical Center. Compared to developing countries, the U.S. has more gun-related homicides than Pakistan, and the gun-related death rates in major U.S. cities are on par with some of the most dangerous places in the world. For example, Atlanta had the same gun related homicide rate as South Africa and Phoenix’s rate was equal to Mexico’s, according to the Atlantic.

Despite of tragic events like Sandy Hook and the 346,681 gun-related deaths recorded by the Center for Disease Control (CDC) from 2003 to 2013, the majority of our elected officials voted against legislation that would require background checks prior to purchasing a firearm, despite a 90 percent public approval rating for such measures. On the federal level, refusal by U.S. politicians to pass more restrictive gun regulations has allowed numerous human rights violations, including violations of the right to life and the security of person, to continue unabated. By looking at the prevalence of gun ownership and gun-related deaths, as well as the implications of our legal response to tragedies such as Newton, it becomes clear the United States’ lack of gun regulation poses a serious threat to safety and public health.

THE PREVALENCE OF GUN OWNERSHIP AND FATALITIES IN THE U.S.

With 88 firearms per 100 people and 10 gun-related deaths per 100,000 people, the U.S. has the highest rate of gun ownership and firearm-related deaths compared to 27 other developed countries, according to Bangalore and Messerli’s study. Conversely, Japan had the lowest rate of guns per capita and fewest gun-related deaths with only .6 firearms per 100 persons and .06 gun-related deaths per 100,000 persons.

Gun related deaths can occur in many ways, including gang violence, accidental death (i.e. thinking the gun is unloaded or a toy), suicide and domestic violence. The two most prevalent sources of gun fatalities in the United States are from gang violence and suicides often correlated with mental illness. A study by Columbia University also found that African-Americans are disproportionately affected by gun deaths. On top of the death toll caused by guns, there are also serious non-fatal crimes perpetuated by the use of firearms, such as rape and aggravated assault, which accounted for 799,760 crimes between 2003 and 2013, according to the CDC. Academics have found that these numbers are lower than the actual rate of guns and gun deaths per capita because compiling accurate data is difficult due to the prevalence of illegal and unregistered firearms as well as the severe underreporting of gun related deaths and shootings by police officers. Legal regulations that make it impossible for the government to track and punish unregistered or missing guns in certain states also attribute to this data collection problem.

Tragic incidents like the Sandy Hook and Aurora shootings, as well as the high level of gun-related suicides linked to mental illnesses, prove that gun related deaths are a prevalent issue in the U.S. that requires multifaceted regulation to properly address the social costs of our gun policies.

THE LEGISLATIVE RESPONSE TO RECENT TRAGIC EVENTS

While we see little action on the federal level, states have passed at least 114 bills related to gun regulation and deregulation since the Newton tragedy, according to Mother Jones and the Law Center to Prevent Gun Violence. Not surprisingly, the gun bills passed in most states fall squarely within political lines, where blue states have passed more restrictive gun laws and red states have passed more laws to deregulate gun ownership. Certain states, including Colorado, Connecticut, Maryland, New York and the District of Columbia, have passed laws to strengthen gun regulation in four major areas: restricting conceal and carry permits; making it harder to own guns by utilizing background checks; enhancing the government’s ability to track guns and punish the tampering of the manufacturers’ identification marks on firearm; and mental health regulations, according to Mother Jones. One hundred and eighty-nine million people are affected by the 41 new laws in 21 states strengthening the regulation of guns and the 15 new laws in 15 states establishing mental health reporting/limits, Mother Jones reported.

Conversely, 29 states have passed 75 laws that make it easier to own guns, conceal and/or carry firearms in public places, including in churches, bars and schools, and making it harder for the government to track and punish stolen or unregistered guns, according to Mother Jones. It is troubling that the same study found nearly twice as many laws deregulating gun ownership passed—impacting over 185 million people—when these states are the most likely to be affected by gun violence and gun-related deaths. For example, Texas, which had the highest number of gun related child deaths in 2013, enacted 12 laws deregulating gun ownership after Newton. (It is important to note there is some overlap in these numbers since certain states passed laws in both directions.)

The discrepancies in state-by-state gun laws pose a major problem for areas trying to thwart gun violence through legislative action. This is clear in Chicago, which has restrictive gun laws but high rates of gun violence because it’s neighboring states have more lax gun policies and residents of Chicago are able to easily carry firearms across state lines. In areas with restrictive gun laws that are also predominantly surrounded by states with stricter gun regulations, such as New York, there are lower rates of gun-related homicide. A study by Boston Children’s Hospital found an association between more gun laws and lower rates of gun-related deaths in states. Specifically, laws requiring universal background checks and purchase or carry permits were most clearly associated with decreased rates of gun-related homicides and suicides. Other studies reinforce this by finding that states with higher gun ownership and less restrictive gun laws also have the highest rates of gun related deaths. This indicates a greater need for advocating on a federal level for stricter gun regulations to prevent cross-state gun trafficking from deteriorating the impact of gun regulation.

ADDRESSING THE HUMAN RIGHTS IMPLICATIONS OF GUN REGULATION

A report by Amnesty International found that the United States’ gun policies have allowed serious human rights violations to impact the youth and communities of lower socioeconomic standing. This study points out the long term consequences of allowing these human rights violations to continue. For example, almost half of Chicago’s homicide victims between 2008 and 2012 were individuals under the age of 25 and youth exposed to this level of violence often display the same psychological traumas of children growing up in urban war zones. This ultimately leads to victims of gun violence turning into perpetrators themselves, propagating the cyclical nature of violence. Gang violence, the leading cause of gun related deaths, predominantly plagues lower income communities, posing a serious threat to international laws ensuring the protection of life and the right to non-discrimination, the report said.

Despite the fact we have seen over one million instances of death and serious non-fatal injuries caused by guns in the last decade—a blatant threat to public safety and health—many of our political leaders continue to push for weaker gun laws. Conservatives and supporters of the National Rifle Association frequently make arguments promoting the proliferation of guns to protect communities because, apparently, more guns keep people safer since criminals tend not to attack areas where they know there are firearms. This is a baseless and contradictory argument since this same author, a “conservative politics expert,” wrote an article admitting that gang violence is the leading cause of gun fatalities. Gang violence typically involves groups who are fully aware that the other possess firearms, proving that the most prevalent criminal tendencies do not prevent them from attacking areas where they believe firearms are present.

Moreover, there are very few studies with concrete numbers attempting to support the argument that more guns make communities safer, and the studies that are out there are full of holes. For example, the authors of one such study in the Harvard Journal of Law and Public Policy conceded that they cannot conclude that more restrictive gun laws lead to more violent crime, since areas dealing with high crime rates tended to implement stricter firearm regulations as a reactionary measure, while areas with lower crime rates did not feel the need to pass strict gun laws. This study also admits that other factors outside an increase in individual gun ownership have had in impact in lowering crime rates (i.e. higher rates of incarceration and higher rates of abortion). The authors themselves argue that banning guns would not decrease murder or suicide. Using their logic, we can immediately conclude that the only way to properly prevent suicide is through better public health measures. On the topic of murder, it is pretty obvious that one can do a lot more damage in significantly less time with a rifle or handgun than with a knife. Case in point: on the same day of the Newtown tragedy in which 26 children and adults were killed, a man attacked 22 children and one teacher with a knife in a school in China—all the victims survived. This same study argues that we should not only analyze the prevalence of gun-related violence, but violent crime as a whole. While they find that the U.S. is a unique country in that we have higher gun ownership and a lower rate of overall crime (a point we should be critical of since many crimes in the U.S. go unreported), this does not mean we can ignore the upwards of one million firearm-related injuries and deaths in our country over the past decade. This study distracts us from the main issue, which is that the prevalence of gun ownership and a lack of regulation in our country has created a faster and more efficient way to commit violent crimes.

Data has consistently supported the conclusion that more guns per capita are linked with higher gun related homicide rates, indicating that gun proliferation would not make society safer. To effectively impede the threat to human rights posed by our gun policies, we must advocate on the federal level for more uniform gun regulation across states that fully protect our citizens from this public health hazard. Our failure to do so renders us incompliant with international laws designed to protect us from the human rights violations perpetuated by a lack of gun regulation.

Shruti Banerjee is a Staff Writer for Rights Wire.

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