TABLE OF CONTENTS. xxvii PREFACE TO THE SECOND EDITION... V PREFACE TO THE FIRST EDITION... VII ACKNOWLEDGMENTS... XI TABLE OF CASES...

Transcription

1 PREFACE TO THE SECOND EDITION... V PREFACE TO THE FIRST EDITION... VII ACKNOWLEDGMENTS... XI TABLE OF CASES... XLI Chapter I. A Framework for U.S. Human Rights Advocacy... 1 I. Introduction... 1 II. Defining Human Rights Norms for U.S. Advocacy... 2 A. Human Rights in the Modern Era... 3 Louis Henkin, The Age of Rights... 4 Notes & Questions... 8 Oscar Schachter, Human Dignity as a Normative Concept... 9 Notes & Questions B. Formalizing Human Rights The Universal Declaration of Human Rights Notes & Questions Notes & Questions C. Critiquing Human Rights i. Feminist Critiques Hilary Charlesworth, Christine Chinkin, and Shelly Wright, Feminist Approaches to International Law Tracy E. Higgins, Anti-Essentialism, Relativism, and Human Rights Notes & Questions ii. Cultural Relativism and Essentialism Makau wa Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights David Kennedy, The International Human Rights Movement: Part of the Problem? Notes & Questions III. Using Human Rights Strategies to Advance U.S. Advocacy Margaret Huang, Going Global : Appeals to International and Regional Human Rights Bodies IV. Case Study: Challenging Juvenile Life Without Parole: How Has Human Rights Made a Difference? Notes & Questions xxvii

2 xxviii Chapter II. The Place of Human Rights in the United States I. Human Rights in the Foundational Era A. Founding Philosophies Paul Gordon Lauren, A Human Rights Lens on U.S. History: Human Rights at Home and Human Rights Abroad Louis Henkin, Rights: American and Human Notes & Questions B. The Judicial Branch and Human Rights: The Paquete Habana The Paquete Habana Notes & Questions II. American Rights and Human Rights in the 20th Century A. Human Rights and Constitutional Interpretation B. Human Rights and Government Obligations Franklin Delano Roosevelt, Address to Congress ( The Four Freedoms Speech ) Elizabeth Borgwardt, FDR s Four Freedoms and Wartime Transformations Notes & Questions C. Human Rights and Domestic Advocacy i. American Exceptionalism and Advocacy for Racial Justice Carol Anderson, A Hollow Mockery : African Americans, White Supremacy, and the Development of Human Rights in the United States Cynthia Soohoo, Human Rights and the Transformation of the Civil Rights and Civil Liberties Lawyer Notes & Questions ii. Public Interest Advocacy Scott Cummings, The Internationalization of Public Interest Law Notes & Questions III. Contemporary Relationship to Human Rights U.S. Exceptionalism Harold Hongju Koh, On American Exceptionalism John McCain, Why We Must Support Human Rights Jack Landman Goldsmith, International Human Rights Law and the United States Double Standard Notes & Questions U.S. Human Rights Commitments and Pledges on Joining the U.N. Human Rights Council U.S. Human Rights Network, Executive Summary of U.S. Stakeholders Reports Alan Jenkins and Kevin Hsu, American Ideals and Human Rights: Findings from New Public Opinion Research from the Opportunity Agenda Notes & Questions

3 xxix Chapter III. The United States and the U.N. Human Rights Treaties I. The Status of Human Rights Treaties in Domestic Law A. The Ratification Debates: CEDAW and CRPD Statement of Senator Richard Durbin, Women s Rights Are Human Rights: U.S. Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Statement of Steven Groves, The Heritage Foundation, Women s Rights Are Human Rights: US Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) President Barack Obama, Letter of Transmittal to the Senate of the United States Notes & Questions Skills Exercise B. Limiting the Impact of Ratification Reservations, Understandings, and Declarations U.S. Senate Executive Report Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker Notes & Questions C. What Effect? The Problem of Unratified Treaties Curtis A. Bradley, Unratified Treaties, Domestic Politics, and the U.S. Constitution Brief of the European Union and Members of the International Community as Amici Curiae in Support of Respondent, Roper v. Simmons Notes & Questions II. Enforcing Treaty Rights in United States Courts A. Defining Non-Self-Execution David Sloss, The Domestication of International Human Rights: Non-Self Executing Declarations and Human Rights Treaties Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties Notes & Questions B. Determining Whether a Treaty Is Non-Self-Executing White v. Paulsen Medellín v. Texas Notes & Questions Skills Exercise III. Implementing Legislation A. The Power to Implement Margaret E. McGuinness, Foreword State of Missouri v. Holland

4 xxx Curtis A. Bradley, The Treaty Power and American Federalism Notes & Questions B. Designing Implementing Legislation Penny M. Venetis, Making Human Rights Treaty Law Actionable in the United States: The Case for Universal Implementing Legislation Notes & Questions C. Focus on: The Haitian Refugee Litigation Sale v. Haitian Centers Council, Inc Notes & Questions Chapter IV. Customary International Law in U.S. Courts I. Introduction II. Defining Customary International Law A. The Restatement (Third) Restatement (Third) of Foreign Relations Law, Restatement (Third) of Foreign Relations Law, B. Customary International Law Norms and Jurisprudence Filartiga v. Pena-Irala Notes & Questions Skills Exercise III. Customary International Law in the U.S. Legal System Louis Henkin, International Law as Law in the United States Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position Notes & Questions IV. Enforcing Customary International Law A. Charming Betsy Beharry v. Reno Notes & Questions B. The Alien Tort Statute Sosa v. Alvarez-Machain Notes & Questions Kiobel v. Royal Dutch Petroleum Co Notes & Questions Kiobel v. Royal Dutch Petroleum Co Notes & Questions V. The ATS and the Torture Victim Protection Act Enahoro v. Abubakar Notes & Questions

5 xxxi Chapter V. Using Foreign and International Law as Persuasive Authority I. Introduction II. The Supreme Court s Citation of Foreign and International Law Roper v. Simmons Graham v. Florida Notes & Questions III. The Foreign Citation Debate Remarks by Sandra Day O Connor Associate Justice, United States Supreme Court The Constitutional Relevance of Foreign Court Decisions Notes & Questions Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement Roger P. Alford, Misusing International Sources to Interpret the Constitution State v. T. Makwanyane and Another Notes & Questions Brief of Amici Curiae Human Rights Advocates et al. in Support of Respondents, Fisher v. University of Texas at Austin Notes & Questions Skills Exercise IV. Foreign and International Law in State Courts A. International Law as Direct Authority i. Raising Treaty Obligations in State Courts: Commonwealth v. Gautreaux Commonwealth v. Gautreaux Notes & Questions ii. Raising Customary International Law in State Courts Brief of Amici Curiae Center for Economic and Social Rights et al., Sojourner v. New Jersey Social Services Notes & Questions B. Using International and Foreign Law as Persuasive Authority in State Courts i. Justifications for Raising International and Foreign Law in State Courts Martha Davis, The Spirit of Our Times: State Constitutions and International Human Rights The Hon. Margaret H. Marshall, Wise Parents Do Not Hesitate to Learn from Their Children : Interpreting State Constitutions in an Age of Global Jurisprudence Martha Davis, The Spirit of Our Times: State Constitutions and International Human Rights Notes & Questions

6 xxxii ii. International and Foreign Law as Persuasive Authority in State Constitutional Interpretation Sterling v. Cupp Moore v. Ganim In re Mark C.H Notes & Questions iii. International and Foreign Law as Persuasive Authority in State Statutory and Common Law Interpretation Boehm v. Superior Court Notes & Questions Helen Hershkoff, Just Words : Common Law and the Enforcement of State Constitutional Social and Economic Rights Notes & Questions iv. State and Local Resistance to International & Foreign Law Martha F. Davis and Johanna Kalb, Oklahoma and Beyond: Understanding the Wave of State Anti- Transnational Law Initiatives Notes & Questions Skills Exercise Notes & Questions Chapter VI. State and Local Implementation I. Introduction II. Human Rights Implementation by State and Local Governments A. The Case for Local Implementation Judith Resnik, Law s Migration: American Exceptionalism, Silent Dialogues, and Federalism s Multiple Ports of Entry Notes & Questions B. Strategies for Implementing Human Rights at the Local Level i. Adopting Human Rights Commitments Carrboro, North Carolina Board of Alderman, A Resolution Adopting the Universal Declaration of Human Rights as Guiding Principles City Council of Chicago, Expression of Support for Convention on the Rights of the Child Notes & Questions United States Conference of Mayors, Resolution, Promoting and Encouraging International Human Rights Notes & Questions ii. Reframing Local Concerns as Human Rights Issues Common Council of City of Madison, That Housing Be Recognized as a Human Right, and That the City of Madison Will Work with Dane County, Surrounding Municipalities, and Community Partners to Develop a

7 xxxiii Housing Plan and Address Housing Issues in the Region Notes & Questions iii. Conducting Human Rights Based Audits and Impact Assessments San Francisco Department on the Status of Women, CEDAW in Action: Local Implementation in the City and County of San Francisco Notes & Questions iv. Reporting on Local Compliance with Human Rights Treaties Notes & Questions C. The Role of State, Local, and Tribal Human Rights Commissions Notes & Questions D. Challenges to Human Rights Implementation by State and Local Governments i. Pre-Emption Crosby v. National Foreign Trade Council American Insurance Association v. Garamendi Notes & Questions ii. Coordination and Capacity Risa E. Kaufman, By Some Other Means: Considering the Executive s Role in Fostering Subnational Human Rights Compliance Notes & Questions Remarks of Mary McLeod, Acting Legal Adviser, to the National Association of Attorneys General National Conference Notes & Questions iii. Backlash: State and Local Opposition to Ratification Urging the Members of the United States Senate to Oppose Ratification of the United Nations Convention on the Rights of the Child Notes & Questions Skills Exercise Chapter VII. The Interdependence of Rights: Advancing Economic, Social, and Cultural Rights Alongside Civil and Political Rights in the U.S I. Introduction A. Economic, Social, and Cultural Rights in the U.S. Legal System B. The Content of Economic, Social, and Cultural Rights II. The United States Stance on Economic, Social, and Cultural Rights President Franklin D. Roosevelt, State of the Union Address

8 xxxiv Notes & Questions Philip Alston, Putting Economic, Social and Cultural Rights Back on the Agenda of the United States Michael H. Posner, Assist. Sec., Bureau of Democracy, Human Rights and Labor, Address to the American Society of International Law, The Four Freedoms Turn Notes & Questions III. The Challenges of Engaging in Economic, Social, and Cultural Rights Advocacy Aryeh Neier, Social and Economic Rights: A Critique Notes & Questions Kenneth Roth, Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization Notes & Questions IV. Theoretical Approaches to Advancing the Full Spectrum of Rights in the U.S Cathy Albisa, Drawing Lines in the Sand: Building Economic and Social Rights Norms in the United States Notes & Questions Gillian MacNaughton, Untangling Equality and Non- Discrimination to Promote the Right to Health Care for All Notes & Questions V. Practice-Oriented Approaches to Integrating a Human Rights Frame into ESC Rights Advocacy Martha F. Davis, Human Rights in the Trenches: Using International Human Rights Law in Everyday Legal Aid Cases J. Peter Sabonis, Using a Human Rights Framework at the Maryland Legal Aid Bureau Notes & Questions Risa E. Kaufman, Framing Economic, Social, and Cultural Rights at the U.N Notes & Questions VI. Case Study and Skills Exercise: Right to Housing A. Case Study: The Human Right to Housing i. International Law ii. International Human Rights and U.S. Housing Law and Practice iii. Comparative Precedents iv. Local Resolutions in the U.S B. Skills Exercise: Human Right to Housing i. The Facts and the Challenge ii. The Law: Selected Domestic Constitutional and Charter Provisions Notes & Questions

9 xxxv Chapter VIII. Engaging International and Regional Mechanisms for Domestic Advocacy I. Introduction II. U.N. Mechanisms A. U.N. Human Rights Treaty Monitoring Bodies U.S. Dept. of State, Periodic Report of the United States of America, to the United Nations Committee on the Elimination of Racial Discrimination, Concerning the International Convention on the Elimination of All Forms of Racial Discrimination Center for Reproductive Rights, National Latina Institute for Reproductive Health, and SisterSong, Reproductive Injustice: Racial and Gender Discrimination in U.S. Health Care, A Shadow Report for the UN Committee on the Elimination of Racial Discrimination U.N. Committee on the Elimination of Racial Discrimination, Concluding Observations on the Combined Seventh to Ninth Periodic Reports of the United States of America Notes & Questions Columbia Law School Human Rights Institute and American Civil Liberties Union, United States Compliance with the International Covenant on Civil and Political Rights, Suggested List of Issues to Country Report Task Force on the United States U.N. Human Rights Committee, List of Issues in Relation to the Fourth Periodic Report of the United States of America List of Issues in Relation to the Fourth Periodic Report of the United States of America, Addendum: Replies of the United States of America to the List of Issues American Civil Liberties Union, United States Compliance with the International Covenant on Civil and Political Rights, Shadow Report to the Fourth Periodic Report of the United States U.N. Human Rights Committee, Concluding Observations on the Fourth Periodic Report by the United States Notes & Questions Kerstin Martens, NGOs in the UN System: Examining Formal and Informal Mechanisms of Interaction Steven Groves, The Inequities of the U.N. Committee on the Elimination of Racial Discrimination Notes & Questions Rebecca Ingber, Interpretation Catalysts and Executive Branch Legal Decisionmaking Notes & Questions Eric Tars, Who Knows What Lurks in the Hearts of Human Rights Violators? The Shadow (Reporter) Knows Human

10 xxxvi Rights Shadow Reporting: A Strategic Tool for Domestic Justice Notes & Questions B. U.N. Charter Bodies i. Universal Periodic Review Report of the United States of America, Submitted to the U.N. High Commissioner for Human Rights, in Conjunction with the Universal Periodic Review Notes & Questions Harold Hongju Koh, Legal Adviser, U.S. Department of State, Statement upon Adoption of Universal Periodic Review Report, United Nations Human Rights Council, Geneva Notes & Questions ii. Special Procedures Ted Piccone, Catalysts for Rights: The Unique Contribution of the U.N. s Independent Experts on Human Rights Notes & Questions Report of the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation, Addendum: Mission to the United States of America (22 Feb. 4 Mar. 2011) Letter From Catarina de Albuquerque, U.N. Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation, to Kevin Johnson, Mayor of the City of Sacramento Notes & Questions Joint Press Statement by Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living and the Right to Nondiscrimination in This Context, and Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation, Visit to city of Detroit (United States of America) Notes & Questions Complaint to U.N. Special Rapporteur on Extreme Poverty and Human Rights Regarding U.S. Failure to Protect Legal Service Providers Access to Migrant Farmworkers Notes & Questions C. Leveraging U.N. Wins Back in U.S. Courts Brief of Amici Curiae the Leadership Conference on Civil and Human Rights et al. in Support of Respondents Regarding Medicaid Expansion, National Federation of Independent Business v. Sebelius Notes & Questions

11 xxxvii Skills Exercise: Engaging with U.N. Mechanisms III. The Inter-American Human Rights System A. Introduction Caroline Bettinger-Lopez, The Inter-American Human Rights System: A Primer Notes & Questions B. Case Study: Engaging the Inter-American System to Address Violence Against Women Jessica Lenahan (Gonzales) v. United States Notes & Questions Vincent Carroll, Editorial, On Point: Usurping Justice Editorial, A Phony Human Rights Case Jessica Lenahan, Guest Commentary, Failing Victims of Violence Notes & Questions Skills Exercise Miami-Dade Board of County Commissioners, Resolution Expressing the Board s Intent to Declare That the Freedom from Domestic Violence Is a Fundamental Human Right Notes & Questions Brief of Amici Curiae New York City Bar Association et al. Supporting Plaintiffs-Appellants Carmen Valdez et al., Valdez v. City of New York Notes & Questions C. Case Study: Using Human Rights Mechanisms to Mobilize for Domestic Change: The Western Shoshone Notes & Questions Chapter IX. Human Rights Reporting I. Introduction II. Initial Considerations: Legitimacy and Impact Diane F. Orentlicher, Bearing Witness: The Art and Science of Human Rights Fact-Finding Notes & Questions III. Guidelines for Conducting Human Rights Fact-Finding U.N. Office of the High Commissioner for Human Rights, Chapter 5: Basic Principles of Monitoring Raoul Wallenberg Institute of Human Rights and Humanitarian Law and the International Bar Association, Guidelines for International Human Rights Fact-Finding Visits and Reports (The Lund-London Guidelines) Notes & Questions IV. Fact-Finding Methodology Human Rights Watch, About our Research Notes & Questions

12 xxxviii V. Integrating Fact-Finding into Advocacy Dustin N. Sharp, Human Rights Fact-Finding and the Reproduction of Hierarchies Center for Reproductive Rights and National Latina Institute for Reproductive Health, Nuestro Texas: The Fight for Women s Reproductive Health in the Rio Grande Valley Notes & Questions VI. Spotlight: Human Rights Reporting on Alabama Immigration Law Human Rights Watch, No Way to Live: Alabama s Immigrant Law Joey Kennedy, Editorial, Bear Witness to a Wrong, Then Tell All Notes & Questions Chapter X. Community Mobilization I. Accounts of Human Rights and Mobilization in the United States Fernando Garcia, Human Rights and Immigration in the U.S.: An Experience of Border Immigrant Communities Greg Asbed, Coalition of Immokalee Workers: Golpear a Uno Es Golpear a Todos! To Beat One of Us Is To Beat Us All! Mariah McGill, Human Rights From the Grassroots Up: Vermont s Campaign for Universal Health Care Notes & Questions II. Human Rights in U.S. Organizing: Uneven Acceptance Notes & Questions Sally Engle Merry, Peggy Levitt, Mihaela Serban Rosen and Diana H. Yoon, Women s Human Rights and Social Movements in New York City Notes & Questions III. Human Rights in the U.S.: Re-Framing the Conversation Opportunity Agenda, Talking Human Rights in the United States: A Communication Toolkit From the Opportunity Agenda Notes & Questions IV. Case Study: Mobilization, Human Rights and Legal Advocacy After Hurricanes Katrina and Rita Davida Finger and Rachel E. Luft, No Shelter: Disaster Politics in Louisiana and the Struggle for Human Rights Stand With Dignity, Through My Eyes: Louisiana s First Independent Evacuation Shelter Monitoring Report Notes & Questions Chapter XI. Ethics and Domestic Human Rights Lawyering I. Professional Ethics Codes and Human Rights A. A Survey of Legal Ethics Codes i. The ABA Model Rules Notes & Questions

13 xxxix ii. The Japanese Regulations Basic Regulations for Attorneys Duties (Bengoshi Shokumu Kihon Kitei) Notes & Questions iii. The International Bar Association Principles International Bar Association: International Principles on Conduct for the Legal Profession Notes & Questions B. Would Lawyers Behave Differently if Ethics Rules Referenced Human Rights? i. Specific Ethics Standards Martha F. Davis, Human Rights and the Model Rules of Professional Conduct: Intersection and Integration Notes & Questions ii. The Torture Memos Notes & Questions II. Corporate Social Responsibility and Legal Practice John Ruggie, Report of the Special Representative of the Secretary- General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises American Bar Association Report Accompanying the Resolution Endorsing the Guiding Principles Notes & Questions Jonathan Goldsmith, When Human Rights and Clients Rights Conflict Notes & Questions Skills Exercise III. Human Rights and Public Interest Lawyering Dina F. Haynes, Client-Centered Human Rights Advocacy Scott Cummings, The Internationalization of Public Interest Law Notes & Questions Skills Exercise Appendix A. Select Human Rights Instruments of the United Nations Appendix B. Select Instruments of the Inter-American Human Rights System INDEX