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Expanding the Toolbox: Using Human Rights in Legal Aid
Lauren Bartlett, Local Human Rights Lawyering Project Director
Reena Shah, Human Rights Project Director at Maryland Legal Aid
Nelson Mock, Human Rights Coordinator at Texas RioGrande Legal Aid
Presentation Overview
1. Introduction to Human Rights 101
2. Specific Case Examples
3. Why Human Rights for Legal Aid
Local Human Rights Lawyering Project
• 2 year long project • Human Rights Coordinators• Technical assistance• Handbook • Trainings• Consultants• Advisory board
Overarching Goal of the Project
• To integrate human rights into everyday work of all staff at partner organizations• Legal Arguments• Client-staff Relationship• Office Systems
What are human rights?
Human Rights are universal legal guarantees protecting individuals and groups against actions that interfere with fundamental freedoms and human dignity.
Important characteristics of human rights: legally protected; obligate states and state actors; cannot be waived or taken away; interdependent and interrelated; and are universal.
Sampling of Human Rights
Right to Non-DiscriminationRight to Self-DeterminationFreedom from TortureRight to PrivacyRight to Special Protections for Women and
Girl ChildrenRight to Adequate Standard of LivingRight to HealthcareRight to Social Services
Human Rights Law
Treaties contracts between governments
Customary International NormsDeclarations and Resolutions
issued by international bodies (such as the United Nations)
not “binding” but provide evidence of agreement by international community
Case law before International or Sub-regional Bodies and Foreign Courts
(US Law)
How is human rights law relevant to U.S. courts and policymakers?
1. Some state constitutions may support, if not compel, looking to international law for legal interpretation of domestic law.
2. Human rights jurisprudence may offer precedent and models that are far more on point for the case at hand than anything in the federal system or even sister states.
3. State courts should interpret U.S. law as consistent with international law whenever possible. See Murray v. The Schooner Charming Betsy, 6 U.S. 64 (1804).
4. Where there is no controlling U.S. law, state courts should look to customary international norms for guidance for its decision See Roper v. Simmons, 543 U.S. 551, 578 (2005).
5. State courts should be part of the transnational dialogue on human rights simply because it is a vital conversation that promotes universal values.
Human Rights Treaties Signed and Ratified by the U.S.:
The International Covenant on Civil and Political Rights (ICCPR)
The International Convention on the Elimination of All Forms of Racial Discrimination (CERD);
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
American Declaration on the Rights and Duties of Man (American Declaration)
SUPREMACY CLAUSE: U.S. Constitution Article IV [2]
This Constitution and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
“RUDs”
The U.S. often enters a "reservation“ or “understanding” or “declaration” to its full adherence to a treaty. Treaties are "non-self-executing", Congress must
enact “implementing legislation” separately. Individuals cannot sue for violation of rights
recognized under the treaties; no private right of action.
Protections under treaty go no further than corresponding protections in domestic law
Building an Argument for a Local or State Court
Make arguments based in local, state and federal law
Explain why human rights law is relevant to this court and this case
Introduce your “hook” to human rights law
Introduce human rights law itself
Specific Case Examples
Applicant for Protective Order, client sought protection against husband for repeated marital rape
Argument to Court: State has obligation to protect client from torture, per the Article 7 of the International Covenant on Civil and Political Rights (ICCPR) , and the Convention Against Torture (CAT).
Parental Rights Termination, grandparents sought to terminate rights
Argument to jury: because of weak evidence, to terminate would (also) be a violation of Article 17 of the ICCPR, right against arbitrary or unlawful interference with family; and Article 23 of the ICCPR, that the family is the natural and fundamental group unit of society and is entitled to protection by the State.
Specific Case Examples, pt. 2
International Parental Abduction of Child, where a parent poses the risk of international abduction of his or her child, Court can look at child’s health and safety risk because of human rights violations in foreign country. E.g.:
Torture or ill treatment, Article 7 of the ICCPR, CAT Lack of liberty and security of person, Article 9, ICCPR
Family law pleadings E.g., divorce petition, in which recommended remedies are
congruent with state law: request for compensation for intentional infliction of emotional distress request for temporary and permanent injunctions request for findings of violence or cruelty request for waiver of waiting period given finding of family violence in
a protective order And accompanying trial brief (referencing ICCPR, CAT, etc.), where
useful or applicable.
Specific Case Examples, pt. 3
Passport case, State Department failure to issue passport to a U.S. Citizen.
Argument in pleadings: Refusal to issue passport is violation of Immigration and Nationality Act and the U.S. Constitution, and “Due process and equal protections are also
universally accepted by the international community. See, e.g., American Convention on Human Rights 1969, art. 24, Nov. 21, 1969, O.A.S.T.S. No. 36, 1114 U.N.T.S. 143, S. Treaty Doc. No. 95-21, 9 I.L.M. 99, entered into force July 18, 1978; International Covenant on Civil and Political Rights, art. 26, Dec. 16, 1966, 999 U.N.T.S 171; S. Exec. Doc. E, 95-2 (1978); S. Treaty Doc. 95-20, 6 I.L.M. 368 (1967), ratified by the U.S. Sept. 8, 1992.”
Specific Case Examples, pt. 4
Housing case, Leo Belanger et al v. John Mulholland—tenants went 9 months without water and 5 months without functioning toilet.
Question: Does lack of water alone constitute a violation of the Warranty of Habitability Statute?
Tenants’ Argument to Supreme Judicial Court of Maine:
1. The lack of water alone violated the Warranty of Habitability Statute, because it is an essential feature of a habitable residence in Maine;
2. This standard is consistent with the national standards regarding right to adequate housing, water, and sanitation; and
Specific Case Examples, pt. 5
(Belanger case)
3. Then, human rights argument:
“Where domestic Constitutional or statutory law is vague, courts have looked to treaties and international law for interpretive guidance. [Fn] “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” Roper v. Simmons, 125 S. Ct., 1183, 1200 (2005). See also, e.g., State v. Wilder, 748 A.2d 444 (Me. 2000) (looking to European common law to support its finding of the fundamental right of parents to control the upbringing of their children).”
Specific Case Examples, pt. 6
(Belanger case)
3. Human rights argument, cont.—references to:
Covenant on Economic, Social, and Cultural Rights
Commentary by various U.N. committees/bodies regarding human right to adequate housing and safe drinking water
Specific Case Examples, pt. 7
(Belanger case)
3. Human rights argument, concluded:
“The right to water is an essential cornerstone for realizing the right to an adequate standard of living as well as the right to health. The Universal Declaration of Human Rights, which the U.S. helped to draft, states “[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family.” Testimony describing the Belangers’ plight demonstrates a marked decline in the Belangers’ physical and mental health as a result of losing their access to running water. [Cite omitted.] Such deplorable conditions, which are not tolerated under international human rights standards, should not be allowed by Maine laws.”
Appellants’ Brief, Belanger v. Mulholland, 2011 ME 107, P3 (Me. 2011)
Specific Case Examples, pt. 8
Then, in some rare instances, you might even get a ruling that includes language like this:
“A survey of case law from other jurisdictions shows "torture" is generally interpreted to encompass physical and/or mental anguish. See, e.g., Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1346 (N.D. Ga. 2002) (the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines "torture" as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him . . . information or a confession . . . .")…..”
State v. White, 668 N.W.2d 850, 856 (Iowa 2003)
Specific Case Examples, pt. 9
Or this:
“International law instruments, of which the United States is a party and signatory, provide that the state must use extreme care when making decisions which could threaten familial integrity. One of these instruments is the Universal Declaration of Human Rights (UDHR). ….
Similar provisions are found in the International Covenant on Civil and Political Rights (ICCPR), which has been signed and ratified by the United States (subject to reservations), and in the Convention on the Rights of the Child (CRC), which the United States has signed and which some courts have found to be evidence of customary international law binding on United States courts. ….”
Nicholson v. Williams, 203 F. Supp. 2d 153, 234 (E.D.N.Y. 2002)
Why Human Rights?
Human Needs & Human Rights What do people need to live in dignity? What are the core challenges facing our clients? Talk in rights terms instead of charity Embody aspirations of all people
Gets you beyond the law to justiceMore complete analysis, including issues of justice, fairness
and accountabilitySustainable changeGreater legal clarityMore authoritative basis for policyGreater accountabilityCreating more connectionsLearning a common language; joining a global movement
(adopted in part from Discover Human Rights: A Human Rights Approach to Social Justice)
Why Human Rights?
Helps fill in gaps where domestic law falls short Interpretive guide Framing tool
Long viewAdd legitimacy to ESC RightsHISTORY
Constitutional Roots Why we are not familiar with HR in the US American as Apple Pie Takes Legal Aid back to its origins of being poverty
warriors
Bringing Human Rights Home…
Lauren BartlettLocal Human Rights Lawyering Project DirectorAmerican University Washington College of law Center for Human Rights & Humanitarian Law (202) [email protected]
Reena ShahHuman Rights Project DirectorMaryland Legal Aid(410) [email protected]
Nelson MockHuman Rights Coordinator Texas RioGrande Legal Aid(512) [email protected]
