International Human Rights Clinic—Significant Achievements for 2019-20

This year the International Human Rights Clinic (IHRC) continued its work to strengthen global human rights through advocacy and enforcement of international, transnational and domestic constitutional law. Globally, the Clinic’s work focused on understanding the causes of the migrant wage gap to prompt necessary reform in national labor and employment frameworks and enabling civil discourse and debate in Tanzania through support to lawyers engaged in strategic litigation. In the United States, IHRC engaged in a targeted effort to promote criminal justice reform and respect for fundamental human rights both within the U.S. prison system and by law enforcement. Most notably, in June, the Clinic released a report on the failure of police use of force policies in the United States to comply with international human rights standards, titled Deadly Discretion: The Failure of Police Use of Force Policies to Meet Fundamental International Human Rights Law and Standards.  The Report, which was downloaded 23,000 times within a month of publication, received widespread attention in the media and from policy makers at the state and federal level contributing to the national conversation about the need for law enforcement reform that protects fundamental human rights. It was also widely cited and invoked by international experts within various U.N. agencies and procedures. The Clinic’s primary clients this academic year were Freedom House, American Civil Liberties Union, international and academic experts on detention and solitary confinement, and the International Labour Organization.

First, the Clinic began a collaboration with the International Labour Organization (ILO) to conduct research and produce a report on the global migrant wage gap. The ILO, which was founded by the League of Nations in 1919, is the UN agency mandated to advance social and economic justice through the negotiation and setting of international labour standards by a tripartite mechanism of governments, workers and employers. In 2019, the ILO conducted quantitative research on wage gaps between national and migrant workers using the latest available state data sources at the microeconomic level. The research documented and quantified a wage gap between migrant workers and national workers, with migrant workers often receiving lower pay than their national counterparts. At the ILO’s request, the Clinic undertook qualitative research to provide a deeper understanding of the causes of the wage gap evidenced in the quantitative study. Clinic students conducted legal research—national, international, and comparative— and an extensive literature review on the migrant wage gap and the closely related gender wage gap that impacts migrant women. The Clinic and the ILO selected twelve countries for targeted research on existing laws, policies and institutional mechanisms that may explain the causes of the wage gap. The student research team then identified three of those twelve countries - Belgium, Spain and the U.S. - for more in-depth field research and interviewing. When in person fact finding became impossible due to the global pandemic, the Clinic employed virtual methods, conducting interviews by Zoom of government, unions, worker organizations and private stakeholders. Research will continue in the upcoming academic year. The resulting report will identify the key and common causes of the migrant wage gap and the legal, institutional, and social processes that sustain it. The report will support ongoing and future work of the ILO in the area of gender and labor migration including: ILO’s collaborations with the UN human rights mechanisms on topics related to migration and gender; the preparatory discussions for the ILO Conference on inequalities in the world of work and relevant workshops; and annual meetings of the UN Network on Migration.

The Clinic also worked with Freedom House to develop a training manual and module on strategic litigation for the Freedom House Tanzania office and provided litigation support to advocates developing strategic litigation in the country on preservation and expansion of civic space. Over the past few years, President Magufuli of Tanzania has undertaken increasingly aggressive endeavors to effectively close civic space in Tanzania, enacting a series of legislation and regulations that curtails and criminalizes opposition speech and work of the media. The Freedom House office in Tanzania, with other civil society partners, determined that courts in the country remain a relatively untapped source for civil society to resist these efforts. While these organizations are aware of the promise of strategic litigation, many need additional support. To support Freedom House’s work in Tanzania and the region more broadly, the Clinic produced a training module and a training manual on strategic litigation for advancing human rights in the region. Clinic students conducted a review of existing manuals from around the country and the globe, identified and interviewed litigators and organizations with a long history of engaging in strategic litigation, and conducted extensive research on Tanzania’s laws and judicial system as well as the available regional and international courts accessible to lawyers in country for litigation. The student team then produced a two-day training module on strategic litigation, which was to be delivered in person for civil society in Dar es Salaam in March. Due to the global pandemic, the students were unable to travel to Tanzania to deliver the training. Instead, students delivered the training over Zoom for members of the Freedom House team in Tanzania and in Washington D.C. Additional trainings are scheduled for the fall. In addition to creating a training module and manual, the student team also provided legal research for attorneys in Tanzania undertaking litigation on novel legal issues involving political and civil rights. These memos provided resources, potential arguments, and comparative analysis that informed the strategy of the litigation teams in country. In the upcoming academic year, student teams will work more closely with attorney partners in Tanzania to develop case theories and draft pleadings.

The Clinic continued work with the American Civil Liberties Union Human Rights Program (HRP) and the Campaign for Smart Justice (CSJ) on a public report on prison labor practices in the United States. Clinic students conducted extensive desk research on domestic and international law on prison labor, sent out FOIA requests to all 50 states for non-publicly accessible information on prison policies, work programs, and wages for prison jobs. Students analyzed how workers are excluded from most labor protections under state and federal laws, and the consequences of that exclusion. The research documented low wages, paycheck deductions, unsafe and poor working conditions, and lack of real vocational and technical training for many low-skill prison jobs, as well as licensing restrictions and discrimination in hiring that frustrate re-entry for the formerly incarcerated. Clinic students also conducted three state case studies in Louisiana, California and Illinois, identifying, contacting and interviewing a range of stakeholders in each state from the department of corrections, to civil society organizations working on prison reform, and formerly incarcerated individuals with firsthand experience in various prison labor programs. Students traveled to Louisiana during the fall quarter for a four-day fact finding mission. During the visit, students met with academics, civil society organizations, community organizers and re-entry organizations in New Orleans. Students then drafted a Louisiana specific report for use by advocates in Louisiana to lobby for change. Fact finding trips to California and facilities in Illinois were planned for spring break and spring term of 2020. Due to coronavirus, these missions were canceled but stakeholders have been interviewed on an ongoing basis over Zoom.

In April of 2020, in response to the spread of the coronavirus, the Clinic supported a series of advocacy efforts to promote release of prisoners and address the particular challenges to prison laborers during the pandemic.  The Clinic drafted summary recommendations on behalf of the incarceration working group of the U.S. Human Rights Network intended to brief country representatives to the U.N. in advance of the scheduled Universal Periodic Review of United States’ compliance with its treaty obligations. The Clinic also wrote a letter to New York’s Governor Andrew Cuomo to express concern and call for action on behalf of prisoners laboring within New York’s correctional system. As has been widely reported, incarcerated workers are on the front lines of the state’s pandemic response and earn less than one dollar per hour; they are housed in unsafe and unsanitary conditions; and lack access to healthcare and basic medical supplies.

In June of 2020, the Clinic released a report on Deadly Discretion: The Failure of Police Use of Force Policies to Meet Fundamental International Human Rights Law and Standards, which finds that the 2018 police department use-of-force policies in the nation’s 20 largest cities failed to meet international human rights standards on police use of force. The report, which was published by the University of Chicago Law Review Online, was released in the midst of global protests sparked by the killings of George Floyd, Breonna Taylor, and Ahmaud Arbery, among others. Leading up to and following the UN Human Rights Council’s recent ‘urgent debate’ on systemic racism and police in the United States, the Clinic presented the Report to numerous UN mechanisms and bodies, including the members of the Human Rights Committee and the Human Rights Council. It was also shared with numerous experts and members of Congress.  The Clinic also conducted analyses of various pieces of proposed legislation at the state and federal level, including the Justice in Policing Act of 2002, at the request of advocates and policy makers.  Finally, the report was featured on PRI’s The World and NPR’s WBEZ Reset, in an interview with Clinic Director Professor Claudia Flores, as well as in articles by The Guardian, Law360, and the ABA Journal and many others.

 The Clinic continued to file amicus briefs in support of Roderick and Solange MacArthur Justice Center appellate litigation challenging solitary confinement conditions across the country. The Clinic’s brief highlights the extent to which U.S. law, policy and practice on solitary confinement are out of step with international standards and the practice of peer nations. In particular, the brief emphasizes measures adopted by peer nations to mitigate the harms of isolation (access to the outdoors; regular visits and human contact; access to programing etc.) and regulations that limit the reasons why someone can be moved into solitary confinement, as well as limits on the duration and renewal of terms of solitary confinement. The amicus brief was filed in a series of cases, including two petitions for writ of certiorari in the Supreme Court. The cases included: Hamner v. Burls, No. 18-2181 (8th Cir. 2019); DePaola v. Clarke, No. 16-7360 (4th Cir. 2018); United States v. Bailey-Snyder, No. 18-1601 (3rd Cir. 2019)(cert petition); Chavez v. Peters, 2019 WL 922237, appeal filed No. 19-3544 (9th Cir. 2019); and Johnson v. Pennsylvania Department of Corrections, No. 4:18-CV-09124 (M.D.Penn. 2019).

The Clinic also continued collaborations with previous year’s partners in additional advocacy and public engagement for completed projects. In 2018, IHRC published Defending Dissent: Towards State Practices That Protect and Promote the Right to Protest with the International Network of Civil Liberties Organizations (INCLO). The report has been utilized by partner alliances of organizations such as Civicus to create toolkits on the right to protest, found here  Last year, the Clinic worked with the Defense Organization at the Military Commissions at Guantanamo Bay on a brief on international human rights issues implicated by the prosecutions. This year, the Clinic became a designated observer organization for the Military Commissions at Guantanamo Bay, Cuba. A Clinic student planned to travel to Guantanamo in the spring to observe the 9/11 case hearings, but like other trips, this was cancelled as a result of travel restrictions due to the spread of coronavirus. The Clinic remains an observer and will send students to observe when travel becomes possible again.

During the spring quarter, the Clinic launched a virtual event series on human rights and health in response to the coronavirus pandemic. The series brought together scholars and practitioners including Dr. Renslow Sherer and Dr. Evan Lyon on the “Human Rights Implications of the Coronavirus Outbreak”; Dr. Pedro Villareal on “International Law on Pandemic Response: A First Stocktaking in Light of the Coronavirus Crisis”; Professor Brian Citro on “Human Rights and the TB Epidemic: Lessons Learned”; and Director of the ACLU National Prison Project David Fathi on “Protecting Incarcerated and Detained People in the Age of COVID-19.” The event series aimed to promote learning and discussion within the Clinic and the broader law school community about the coronavirus and the unique challenges it presents from an international human rights perspective.

Finally, the Clinic is organizing a conference on Making Gender Equality a Reality: Women’s Human Rights and Constitutional Change in the Americas, with support from the Pozen Center on Human Rights. This symposium will bring together leaders of legal and constitutional reform processes, academics and women’s rights advocates from the region to report and reflect on the challenges, opportunities, and impact of legal reforms on women’s rights prompted by constitutional changes. Panels will focus on: gender parity provisions and domestic efforts to ensure equal representation at all levels of governance; progress and challenges on ensuring sexual and reproductive rights; and the role (and limitations) of equal protection and non-discrimination provisions in combating discriminatory practices. Panelists include Senator Kenia López Rabadán of Mexico and Nadia Pesántez from UN WOMEN, among many other professionals from the United States, Central and South America.  The conference was scheduled to take place in 2021, having been postponed due to the pandemic.

International human rights