Tag: law

The Need To Increase Participatory Mechanisms at the Inter-American Court of Human Rights

by Karina G. Carpintero

27 MAR 2017

The Inter-American Court of Human Rights has been subject to significant criticism regarding the absence of participatory mechanisms that allow societal actors to intervene in the inter-American process.  To some extent, these critiques reflect a similar demand that is occurring in the domestic realm.  Latin-American constitutional democracies present a scenario in which social movements, among many different types of other relevant stakeholders, aim to move forward toward more participatory schemes. Societies are beginning to challenge governments and institutions with demands for more transparency, accountability, and concrete deliberative mechanisms.

The Inter-American Court of Human Rights has just one available method for outside actors to participate in its international process: amicus curiae briefs. The process entails submitting a written brief before the hearing of an individual case or advisory opinion takes place. Unfortunately, the impact these briefs have is almost null. There is not necessarily any consideration of what the amicus argues, which can be understood as the ‘claim of society’ in an individual case. Because this is the only road to make societal voices heard, there is clear difficulty in accessing “inter-American justice.”

However, realizing how narrow access to this international process is, and debating about it, does introduce an opportunity to start thinking about ways to improve it. The Court should reconsider its procedures in order to enact fruitful strategies that lead to more active participatory methodologies. In fact, there are some alternatives that the Court could take as steps towards that aim. One effective reform could be using a virtual platform, like the internet, as an accessible tool that aids in shortening distances and reducing the economic costs of international actions. Another pathway for reform could be holding an open call for hearings, not only for the parties of individual cases as it does in its ordinary period of sessions, but also to individuals, advocates or organizations that participate in amicus briefs. A bolder method of reform could be considering formal changes to the Court’s rules of procedures to encourage more democratic practices.  Without doubt, engaging in effectively increasing the level of participation at the international order is a difficult challenge to implement, but it is clear that amicus curiae briefs are insufficient as the sole available tool.

All in all, if the Inter-American Court assumes the role of informing the regional consensus about how human rights should be interpreted, protected and guaranteed, more clarity on how these consensuses are reached should be guaranteed. So, the next step for the Inter-American Court, and human rights advocates generally, is to search for more participatory mechanisms to legitimize the creation of conventional meaning.

Karina G. Carpintero is an LLM student at Texas Law, concentrating in Human Rights and Comparative Constitutional Law, and member of the 2016-2017 Working Paper Series Editorial Committee.

“Are Refugees Really Not Welcome?”

by Courtney McGinn and Reina Wehbi

2 MAR 2017

“#RefugeesNotWelcome: Making Gendered Sense of Transnational Asylum Politics on Twitter” by Inga Ingulfsen is the winning paper of the 2016 Audre Rapoport Prize for Scholarship on Gender and Human Rights, an interdisciplinary writing competition organized by the Rapoport Center for Human Rights and Justice. In 2017, Ingulfsen wrote a follow-up article to #RefugeesNotWelcome  addressing why critical feminist scholarship is now more important than ever.

In this piece, Ingulfsen creatively uses new methodologies to explore the “contentious landscape of asylum politics” by analyzing the gendered discourses used by Twitter users who tweet with the hashtag #refugeesnotwelcome. In doing so, Ingulfsen unveiled that Twitter users justify refugee exclusion by imaging themselves as a “White Western Enlightened community” in binary opposition to refugees, who are deemed threats to their community. This process of binary construction is inherently gendered due to the fact that refugees (specifically Muslim refugees) are often depicted as barbaric, violent men who frequently objectify, abuse, and oppress women.

In the beginning, Ingulfsen gives insights into the evolution of contemporary asylum politics through history, statistics and a comparison of attitudes of different western communities towards asylum and immigration. She also showcases the increasing challenges faced by both refugees and asylum regimes who are sometimes unable to accommodate the large influx of migrants.

Since Twitter today serves as a platform for the “global flow of real-time reactions and opinions” worldwide, Ingulfsen sheds the light on users’ different patterns of behavior. She describes the mainstream pattern as “unequal participation” because the majority of the content on Twitter is produced by a small group of opinion makers who shape the public discourse. The majority of Twitter users disseminate the material through “re-tweeting” what that small group of opinion leaders have to say. Throughout her argument, Ingulfsen reflects on the impact of such a course of online activity on the refugee crisis.

Ingulfsen then explores the gendered discursive strategies employed by Twitter users who ‘imagine’ refugees as ‘not welcome.’ Her research methodology focuses on analyzing English-language tweets with the hashtag #refugeesnotwelcome, guiding the reader into the steps of her analysis process. To explain her findings, Ingulfsen presents a set of tweets that perceive the Muslim migrants as culturally different, barbaric, and oppressive; thus justifying their exclusion. In the end, Ingulfsen stresses on the importance of deconstructing anti-immigrant rhetoric.

This piece comes at a very troublesome time for refugees and immigration in general. Recently, President Trump signed an executive order to keep refugees and immigrants from seven predominantly Muslim nations out of the United States for a specified period of time. Refugees and immigrants were banned from entering the country for 120 days. The countries affected are Iran, Iraq, Syria, Sudan, Libya, Yemen and Somalia. Even more daunting is the fact that the White House Chief of Staff, Reince Priebus, said more countries could be added to Trump’s order in the future.

Although green card holders and individuals with valid visas were supposed to be excluded from the ban, that was not what actually played out. As reported by CNN, some travelers who were in the air when Trump signed the order were not able to enter the country when they landed. Some were detained and others were sent back to the country of origin. The confusion of who was included or excluded from the travel ban came from the fact that career homeland security staff were only allowed to see the final details of the order on the day it was signed by Trump. In the following days, airports struggled to adjust to the new directive. [1]

Although presidents have broad power in shaping immigration policy, many deem this executive order as unconstitutional based on its discriminatory nature. On its face, the order does not discriminate on the basis of religion or even mention Muslims. The Supreme Court of the United States has held that a facially neutral law may still be deemed unconstitutional based on the discriminatory intent of that law. In regards to Trump’s intent, Professor Corey Brettschnieder from Brown University stated the following:

[A] closer look at the executive order’s origins makes clear that it is a direct assault on the fundamental constitutional values of equal protection and religious freedom. How do we know this? Because Trump’s adviser, former New York Mayor Rudy Giuliani, told us so.

Interviewed on Fox News on January 28, Giuliani explained how the administration’s immigration policy morphed from one that was obviously unconstitutional to one that is more subtly so. Host Jeanine Pirro asked, “Does the ban have anything to do with religion?” In response, Giuliani said, “When [Trump] first announced it, he said ‘Muslim ban.’ He called me up, he said, ‘Put a commission together, show me the right way to do it legally.’” “It,” in this case, of course, is a ban on Muslims. Giuliani’s admission is a textbook case of drafting an order in a way that avoids overt declaration of animus against a religious or ethnic group, while retaining the motive and much of the effect.[2]

Similarly, lower courts have already shown their resistance. In New York, a federal judge granted an emergency stay for citizens of the countries included in the ban and ruled they cannot be removed from the U.S. Similarly, in Boston, federal judges ruled officials cannot detain a person on the basis of Trump’s executive order.[3] In Washington, a federal court issued a stay, which stopped detained travelers from being sent back to their home country. After the 9th Circuit Court of Appeals heard oral arguments over whether to lift the temporary halt to the travel ban, the three judge panel unanimously held that the travel ban will remained blocked.[4] Although there has been great opposition to the Trump Administration’s actions thus far, things look far from over. On February 9, 2017, in response to the 9th Circuit’s decision, Trump took to Twitter per usual, stating, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” Trump is expected to issue a replacement order in the near future.

Instigated by anti-immigration xenophobic rhetoric, hundreds of cases of hateful harassment or intimidation have been reported during the month after election day.[5] Hate speech and bias-related incidents took place on streets, schools and groceries.[6] According to CNN, overall reported hate crime rate spiked 6% since the elections. However, the actual rate could be higher since the majority of incidents go unreported.[7]

Due to today’s current issues, Ingulfsen’s emphasis on the importance of deconstructing anti-immigrant rhetoric could not be more appropriate. Inga Ingulfsen’s presented her research to the data and research team at UN Women. You can view the complete published paper here.

Courtney McGinn is an LLM student at Texas Law, concentrating in Human Rights and Comparative Constitutional Law, and member of the 2016-2017 Working Paper Series Editorial Committee.

Reina Wehbi is a Fulbright grantee from Lebanon currently pursuing her LL.M in Human Rights and Comparative Constitutional Law at the University of Texas at Austin. She graduated with an LL.B from the Lebanese University in Beirut.

The Human Right to Education and Economic Inequality

by Samantha Chammings

19 NOV 2015

Craig Lauchner’s working paper was written as part of the Fall 2015 law school class and Rapoport Center Colloquium on Inequality and Human Rights. The Colloquium brought together scholars, academics, practitioners, and students from the UT Law School and LBJ School of Public Policy to ask the question: can human rights do anything to alleviate economic inequality?

The answer to this question was often a resounding “no”: human rights law does not have the tools to close the wealth gap between rich and poor. Indeed, the “age of human rights” has coincided with the entrenchment of neoliberalism, to paraphrase Samuel Moyn. Lauchner’s paper also comes to this conclusion, through an in-depth study focusing on one particular human right—access to education—in one particular region of the world: the Mercosur Region (which includes Argentina, Brazil, Paraguay, Uruguay and Venezuela). In fact, his paper concludes that not only have human rights policies failed to alleviate economic inequality in the region, but they have also, in some instances, perpetuated those very inequalities. Lauchner provides a compelling account of the ways in which human rights policies can actually entrench existing power, and by extension economic, inequalities.

In particular, Lauchner describes a policy developed in 1998 by the Sector Educativo de Mercosur (SEM) to ensure that university degrees obtained in a SEM country are recognizable in every country in the region. While this aimed at decreasing inequality between countries, in actuality it had the unintended consequence of forcing smaller countries with less well-established university institutions to invest money into subsidizing university attendance by wealthier segments of society. Focusing policies on tertiary-level education, Lauchner argues, rather than on primary and secondary education, has disproportionately benefited elites and perpetuated existing inequalities in society. While many governments are spending the same on university-level education as on primary and secondary-level education, the preexisting privileges of those individuals able to attend university means that human rights policies, which by definition are applied indiscriminately, result in a fundamentally unjust outcome.

For Lauchner, the SEM case is an example of how human rights policies are blind to inequality. They seek to raise everybody above a certain minimal threshold, but, as Moyn concluded, place no limits or ceiling on wealth. Lauchner gets to the crux of this when he notes that in Latin America, the right to education is enforceable by the courts, but this does not signify a right to equal education. And by definition, those who are poor are less able to enforce those very same rights. However, Moyn argues that it is by virtue of a small elite amassing unrestrained wealth that other people are forced to go hungry. Human rights policies, if not a part of this system, at the very least sit idly by and allow economic inequality to exist and even increase.

In Lauchner’s account of the right to education in Latin America, human rights policies do at least have the capability to decrease inequality and do provide some benefits to the poor. However, he argues that the specific policies have also resulted in furthering inequality. Unlike Moyn, he does not conclude that human rights are fundamentally incompatible with efforts to decrease inequality, but rather, they simply may not be the best tool to do so, at least in relation to access to education within Latin America.

Samantha Chammings is an LL.M. Human Rights and Comparative Constitutional Law graduate from the University of Texas School of Law. She was a Rapoport Center Scholar in Spring 2016.