The Shriver Brief : Poverty Law Commentary & Insights : Sargent Shriver National Center on Poverty Law : Affordable Housing, Healthcare Reform

The convergence of domestic anti-poverty advocacy and international human rights law is apparent in a report released in August by an independent expert appointed by the United Nations Human Rights Council. In the report, Magdelena Sepúlveda, the Special Rapporteur, calls access to justice not only a “fundamental right in itself” but also “essential for the protection and promotion of all other civil, cultural, economic, political, and social rights.” Sepúlveda will present her report to the U.N. General Assembly in October.

Prepared at the direction of the Human Rights Council, the report comes at the midpoint of the Second United Nations Decade for the Eradication of Poverty (2008-2017). Although it analyzes obstacles to access to justice through an international lens, legal aid lawyers and other anti-poverty advocates in the U.S. will find much that is familiar.

For example, the report notes the insufficiency of mere “de jure access”; to ensure “de facto access” states must eliminate conditions that perpetuate discrimination or have a disparate impact on vulnerable groups. Other obstacles recounted will be familiar to any U.S. anti-poverty advocate, e.g., domestic and sexual violence; criminalization of actions that stem from poverty, like sleeping in public places; and a legal system’s failure to be accessible to people who do not speak the predominant language.

Growing numbers of anti-poverty advocates in the U.S. are finding that international human rights norms can enhance their practice. Clearinghouse Review highlighted anti-poverty work using this framework in its 2011 special issue, Human Rights:  A New (and Old) Way to Secure Justice. Legal aid advocates’ work has always promoted human rights, and more now realize that claiming the label offers additional tools in representing clients..

Advocates are not alone in finding a new appreciation for the human rights perspective; the U.S. government, after years of mostly ignoring or resisting international human rights bodies, has begun to engage. In Geneva this month, at the U.N. High Level Meeting on the Rule of Law, the U.S. submitted pledges to, among other promises, act to strengthen the rule of law in two arenas: women’s access to justice and access to legal aid. Regarding domestic violence, the U.S. stated its intent to develop best practices and performance measures in family court structures, sexual assault evidence collection and police response, and reduce domestic violence homicides. Regarding access to legal aid, the U.S. stated its intent to celebrate the 50^th anniversary of the Supreme Court’s Gideon v. Wainwright decision finding a constitutional right to council in felony cases for defendants who cannot afford counsel. The U.S. also pledged to “strengthen safety-net programs for low-income and vulnerable Americans by strategically incorporating civil legal assistance” and “to improve training opportunities for United States civil legal aid lawyers.”

Special Rapporteur Sepúlveda’s report highlighted “non-existent or inadequate legal assistance” as a major barrier to accessing justice, and noted the potential harm that lack of legal aid in civil cases caused to people living in poverty. Her recounting of kinds of cases in which lack of counsel can be devastating—“tenancy disputes, eviction decisions, immigration or asylum proceedings, eligibility for social security benefits, abusive working conditions, discrimination in the workplace, or child custody decisions”—closely tracks the American Bar Association’s 2006 resolution supporting “legal counsel as a matter of right at public expense to low income persons … where basic human needs are at stake, such as those involving shelter, sustenance, safety, health, or child custody ….”

Coinciding with that ABA resolution, the burgeoning civil right to counsel movement in the United States was the focus of Clearinghouse Review’s 2006 special issue, A Right to a Lawyer? Momentum Grows. Activity has only increased since then, led by the National Coalition for a Civil Right to Counsel. Across the country, civil right to counsel pilot projects are under way, bar associations are strategizing about how best to promote the right, and New York’s chief judge Jonathan Lippmann has announced a bar admission requirement for new lawyers of 50 pro bono hours.

On this issue too, anti-poverty advocacy and international human rights law are converging. Will governments respond to the U.N. Special Rapporteur’s call to shatter the barriers that prevent people from accessing justice systems? Will the U.S. follow up on the pledges made in Geneva? Perhaps the answers depend on the determination and creativity of advocates. But for those who want to seize the opportunity, international human rights law offers new handles for attacking poverty.

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The summer was a season of triumphs for women around the world, whose fundamental human rights were upheld, sometimes for the first time, by the international human rights community. In July, the United Nations (UN) released Progress of the World’s Women: In Pursuit of Justice, a report that focused on the legal barriers women and girls face around the world and how advocates are working to break down these barriers. In early August, the UN ruled on its first maternal death case, establishing that governments have an obligation to guarantee all women access to adequate and timely maternal health care. Then, in mid August, the Inter-American Commission on Human Rights ruled on its first ever case brought by a domestic violence survivor against the United States. The decision established that governments have an obligation to enforce protective orders and that the failure to do so is a human rights violation. The progress around the world only highlights the work that must be done here in the United States to ensure that all women have equal rights and protections under the law and in practice, including the important right to the enforcement of protective orders.

Domestic Violence in the United States

The number of women in the U.S. who experience domestic violence is vast—it is truly a ubiquitous experience, affecting women of all ages, races, ethnicities, and sexual preferences. Indeed one in four women reports experiencing violence from a current or former partner or spouse. These women suffered in silence with little recognition from the legal world before the 1980s, when states began to criminalize domestic violence and establish protective orders. Finally, in 1994, the federal Violence Against Woman Act (VAWA) defined and federally criminalized domestic violence, dating violence, sexual assault, and stalking. Its passage signaled the United States’ refusal to continue silently to tolerate these crimes. Despite this progress, ignorance and prejudice continue to surround domestic violence survivors who face many barriers to justice and protection. Police can be slow to respond, believing domestic violence to be solely a private matter, and survivors’ credibility is often questioned in court. State and federal domestic violence acts have given women the opportunity to pursue legal protections, but without enforcement, legal protections in and of themselves are meaningless.

Jessica Lenahan’s Story

On June 23, 1999, Jessica Lenahan’s three children were discovered dead in the back seat of their father’s truck after he engaged the police in a shoot out that also resulted in his death. Ms. Lenahan’s estranged husband had abducted their children from outside her home, violating the restraining order she had obtained against him after he emotionally and physically abused her. Despite Ms. Lenahan’s many calls to the police station informing them of the restraining order and her husband’s actions, the police failed to even search for the children. Ms. Lenahan (formerly Ms. Gonzales) sued the township, claiming that her due process rights had been violated when the police failed to enforce her restraining order. Her case went all the way to the U.S. Supreme Court, which ruled in favor of the Township. The 2005 decision in Town of Castle Rock v. Jessica Gonzales established that survivors do not have a constitutional right to police enforcement of a restraining order because they do not have property rights to the order itself. In other words, the court determined that Ms. Lenahan did not have a right to due process, and thus did not look at whether or not due process was carried out. The decision, however, threatens the safety of domestic and sexual violence survivors around the country, who now have no legal recourse if their protective orders are not enforced.

The Inter-American Commission on Human Rights

With legal options in the United States exhausted, Ms. Lenahan took her case to the Inter-American Commission on Human Rights (IACHR). Established in 1959, IACHR is tasked with promoting and protecting human rights in the Americas by upholding the American Declaration of the Rights and Duties of Man. International human rights law guarantees certain substantive positive rights that the U.S. Constitution does not, rendering the property right concerns that were the focal point of the U.S. Supreme Court case moot. Thus, Jessica Gonzales v. U.S.A., centered on the claim that the United States violated Ms. Lenahan and her children’s human rights to life, equal protection before the law, and the right to protection of the law from abusive attacks. In its decision in favor of Ms. Lenahan, IACHR established that governments do have an obligation to enforce protective orders and that the U.S. had violated Ms. Lenahan’s human rights in failing to enforce her restraining order.

Applying a Human Rights Framework Domestically

Included in IACHR’s decision were a number of recommendations for the United States to more adequately address domestic violence. These recommendations, echoed by the recently released report from the United Nations Special Rapporteur on Violence Against Women (Report of the Special Rapporteur on violence against Women, its causes and consequences, Ms. Rashida Manjoo - Addendum - Mission to the United States of America, click “E”, page 27), include the creation of meaningful standards for the enforcement of protective orders. As a member of the Organization of American States (OAS), the United States is obligated to comply with the American Declaration of the Rights and Duties of Man and IACHR rulings, but it shouldn’t have to be forced into protecting women from violence. Instead, the United States should lead rather than follow in the fight to end domestic violence. 

For more information on using a human rights framework domestically, read the September-October 2011 special issue of the Clearinghouse Review, “Human Rights: A New (and Old) Way to Secure Justice.”

This blog was coauthored by Hannah Green.

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Most of the news we hear about housing in the United States is bad. Homelessness, evictions, and foreclosures are omnipresent, and housing assistance is hard to find. In some parts of the country, homelessness is being criminalized—either directly through laws that criminalize sleeping and camping in public places, or indirectly, through laws that try to hide homeless populations, such as the Orlando ordinance that requires organizations to obtain permits to feed groups of twenty-five or more people in city parks. (Because the Orlando ordinance also states that only two permits a year will be issued for any one park, it means that organizations conducting large-scale feedings have to move from place to place—making it difficult for homeless people to establish a routine.) Debates about homelessness have even surfaced at Occupy Wall Street and other Occupy demonstrations across the country, where some protesters welcome homeless people, and others worry that their presence adds unwelcome complications to the Occupy movement. 

But there has been some good news about housing in 2011, and it’s from an unexpected corner: human rights law. The United States has long lagged behind other countries when it comes to recognizing a human right to housing. The United States has signed but not ratified the International Covenant on Economic, Social and Cultural Rights, the major international human rights instrument acknowledging “the right of everyone to an adequate standard of living . . . including adequate food, clothing, and housing.” Unlike other countries, such as South Africa, the U.S. Constitution does not provide its citizens with such a right, and efforts to push the U.S. Senate to ratify the International Covenant on Economic, Social and Cultural Rights have stalled.

All of this background makes the events of 2010 and 2011 seem even more exceptional. As Eric S. Tars and Déodonné Bhattaraiwrite in the 2011 Special Issue of Clearinghouse Review: Journal of Poverty Law and Policy:

Over the course of 2010 and early 2011 an extraordinary series of events opened the door to discussion about housing as a human right in the United States. The Universal Periodic Review began with a nationwide consultation involving thousands of community participants and culminated in an international review of human rights in the United States in Geneva in November. At this review the U.S. Department of Housing and Urban Development (HUD) affirmed for the first time the relevance of an international human rights mechanism to its role in setting domestic housing policy. Five months later, again for the first time, the U.S. Department of State, in consultation with HUD, supported recommendations on affordable housing and protecting the rights of homeless persons, among others, in response to the Universal Periodic Review. The following week the State Department announced a reembrace of economic and social rights, including the right to housing, after seventy years of treating them as second-class rights.

This remarkable progress shows how U.S. poverty law advocates can use international human rights mechanisms—such as the Universal Periodic Review—to help their clients. The 2011 Special Issue of Clearinghouse Review, titled Human Rights: A New (and Old) Way to Secure Justice, contains articles from practitioners and academics demonstrating how poverty law practitioners can harness the power of international human rights law to work for their clients. With case studies from across the country and as far away as Australia, Clearinghouse Review’s 2011 Special Issue is a must-read for any poverty lawyer trying to approach his or her work from a new angle. It should as well be essential reading for members of Congress as they consider the final fiscal year 2012 levels of funding for HUD’s affordable housing programs. Without the dollars necessary to sustain these housing programs, a human right to housing is essentially meaningless to the millions of families in need.

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American poverty lawyers of all specialties often hesitate before using international human rights arguments and publications in their daily work, and for good reason: the American bench has a decidedly mixed track record when it comes to citing international human rights as persuasive authority. But the 2011-2012 report on progress of the world’s women by U.N. Women, the United Nations’ organization for gender equality and women’s empowerment, is a valuable tool for women’s advocates trying to incorporate human rights standards into their practice. Progress of the World’s Women: In Pursuit of Justice, makes it clear that international human rights publications can provide advocates with useful arguments, information, models, and contacts for future collaborations—bolstering advocates’ work even if international human rights are never explicitly mentioned in the courtroom.

Appropriately enough for lawyers, U.N. Women’s new report focuses on the impact that laws and justice systems have on women and girls around the world. The authors scrutinize legal barriers that women have to face, as well as the innovative ways that advocates are devising to rip them down. This document can be a helpful resource in several respects:

• The report discusses The Convention on the Elimination of All forms of Discrimination against Women at great length and incorporates the convention into its discussion of women’s issues. Although the United States has only signed, not ratified, this treaty, it has been ratified by 186 U.N. Member States and is often recognized as persuasive by American judges. The report prompts advocates to think about using the convention in new ways.
• Each chapter of the report explores justice-related topics as well as monumental cases that have changed women’s lives, and each section is illustrated by statistics and studies that advocates can refer to in briefs or policy campaigns. For example, the first chapter, Legal Frameworks, discusses women’s struggle to achieve equal pay for equal work, noting that “[b]ased on available information from 83 countries, the ILO reports that women are generally paid between 10 and 30 percent less than men.” This upsetting statistic could be useful for women’s advocates working on equal pay issues; similarly helpful statistics are omnipresent throughout the report.
• Whether discussing noteworthy cases, legal pluralism, or violence against women, the U.N. Women report constantly refers to organizations and government entities that are working to improve justice for the world’s women. Reading the U.N. report can provide advocates with new models for their own work, as well as potential allies in other jurisdictions.

For more information on how to incorporate human rights arguments into your practice, watch out for the 2011 Special Issue of Clearinghouse Review: Journal of Poverty Law and Policy, which will be available in October. In this year’s special issue, authors from the University of Pennsylvania’s Transnational Legal Clinic, The Opportunity Agenda, Columbia University’s Human Rights Institute, The Shriver Center, Coalition of Immokalee Workers, Northeastern University’s Program on Human Rights and the Global Economy, the National Law Center on Homelessness and Poverty, the Legal Assistance Foundation of Metropolitan Chicago, and California Rural Legal Assistance, as well as two Australian public interest organizations—the Federation of Community Legal Centres and the Public Interest Clearing House—will discuss new and innovative ways for legal services lawyers to use international human rights to advance justice and equal opportunity at home.

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Today, across the country, a battle rages on—there are those who would use the budget crisis to attack on our values of economic security and opportunity for all. Make no mistake about it, the attack on public sector unions in Wisconsin, New Hampshire, Ohio, Indiana, and many other states across this country is an attack on the middle class—on decent wages, benefits, safe working conditions, and retirement security. The recession has already taken a serious toll on working Americans, with 1.5 million Americans joining the ranks of low-income working families in 2009 alone. Far too many hard-working American families are not able to earn enough money to achieve economic security.

In this time of a fragile economic recovery, where workers have not seen much benefit from the large productivity gains since the end of the recession, we must work together to strengthen the middle class and the American Dream. Instead, some in Congress are seeking to roll back the historic achievement of healthcare reform, and lawmakers in many states are training their sites on ending collective bargaining. Attacking unions is not supported by most Americans, won’t fix state balance sheets, and will undermine the ability of hard-working Americans to achieve economic security. Public sector union members are not overpaid, and are in fact now mostly women, who are increasingly filling the role of the sole breadwinner for their families.

We stand this week in remembrance of Dr. Martin Luther King, Jr., who was assassinated on April 4, 1968. At the time of his death, he was leading the fight for economic human rights—lending his voice and leadership to the Memphis sanitation workers, who sought the right to bargain collectively. Dr. King spent the last years of his life, including his critical year in Chicago in 1966, asserting a broad platform of fundamental human rights: the right to safe housing, the right to work for fair pay, the right to vote, the freedom to bargain, and affordable education to enable individuals to grasp the American Dream.

As we remember his brave legacy, we take on the challenge to strengthen what Dr. King fought for, and what the folks in Wisconsin continue to fight for. This week individuals, organizations, and churches will stand in solidarity with the working people in states where politicians threaten the economic human rights that Dr. King championed.

Please join us. You can find local events in your area here, starting with worship services this weekend, and then events throughout the coming week. In Chicago there will be a rally in Daley Plaza (50 W. Washington) in solidarity with those in Wisconsin on April 9 at 1:00 p.m., starting with a march to the plaza at 12:00 p.m., from the Hyatt Regency Hotel, 151 E. Wacker.

Let’s stand together as one to fight for the whole platform of human rights that Dr. King lived for, and died for.

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