Experiencing the Power of International Law in Human Rights and Public Health

By: Juliana Shulman, PHRGE Fellow at UNAIDS

When beginning law school, rarely do you imagine that in your second year you will find yourself in a room full of dozens of countries’ human rights leaders as they review and discuss a document that you helped draft. Let alone a document that – eventually – may improve or save the lives of millions of people living with HIV or at risk of becoming infected with HIV. Yet, that is exactly where I found myself earlier this month, in the fall of my 2L year. Shulman photo

As a PHRGE fellow co-oping in Geneva with UNAIDS (the Joint United Nations Program on HIV/AIDS), I have had the rare opportunity to see firsthand the power and politics of human rights, law, and public health, intersecting on the global stage. As a member of UNAIDS’ Human Rights and Law team, I have now worked with an international team of human rights lawyers to draft amicus briefs for ongoing litigation about the reproductive rights of women living with HIV. I have explored the ways that criminalization and punitive laws (targeting sex workers, same-sex relations, and drug users) hinder public-health efforts. And I have drafted reports on ensuring zero discrimination against people living with HIV in health-care settings.

But in addition to the work that I have helped advance, perhaps most remarkably, to me, is that I have had the opportunity to witness firsthand how international agencies work.

Like many who go to law school, I came to Northeastern filled with passion for social change and grasping for the tools necessary to make a meaningful difference. Countless times throughout my undergraduate, graduate, and legal training and as an organizer at an international advocacy organization, I have turned to reports, treaties, resolutions, and charters drafted by UNAIDS and other international agencies. I had looked up to these agencies and their immense power with curiosity and a bit of awe.

And yet – almost immediately upon my arrival in Geneva – I was recruited by a colleague to help draft one of these very documents. In particular, I helped research and draft a U.N. Human Rights Council resolution to commemorate the 20th anniversary of the International Guidelines on HIV/AIDS and Human Rights with a high-level panel on the current status of human rights and HIV.

The Guidelines were a groundbreaking document when they were introduced; twenty years after their original introduction, the HIV epidemic, global public health, and the human-rights perspectives have changed immensely. While the resolution and the resulting panel seemed fairly trivial at first, they lay the necessary groundwork to have a much deeper global discussion of the current human rights issues at the core of HIV prevention, testing, and treatment, particularly for key populations impacted by HIV around the world.

Suddenly, I was not simply researching U.N. resolutions from a law school library. Now I was on the other side of the table, providing technical assistance and strategizing for political support as UNAIDS helped quickly usher the resolution from a mere idea to a meaningful vote. I was answering emails from countries’ representatives to the Human Rights Council, and helping to provide the legal and public-health background to advance this issue. I was watching as countries formed small alliances on particular issues contained within the resolution, standing together to voice their support for or their desire to omit specific words, sentences, and ideas.

This is how I found myself – mere weeks into my internship – in a room of dozens of languages and backgrounds watching the United Nations Human Rights Council unanimously agree to adopt a resolution that I helped craft, research, and revise, after having witnessed seemingly endless political – and sometimes heated – discussions about everything from LGBTQ rights to the rights to comprehensive sexual education. I watched as international politics merged with the linguistic powers of the law, on something that, ultimately, may have a substantive impact on individuals’ experiences and public health.

While the mysterious world of international law is, admittedly, still quite a mystery, it is all becoming a bit more clear. The veil surrounding international agencies has been just a little bit lifted to reveal the complicated and frankly, sometimes dreary, world of politics that lays underneath.  As I prepare to return to law school next month, I look forward to bringing these experiences into the classroom and into my sprouting career in public health law.

Bringing Privacy Protections into the Digital Age, One (Big) State at a Time

Bringing Privacy Protections into the Digital Age, One (Big) State at a Time

By: Mike Godbe, PHRGE Fellow at Electronic Frontier Foundation

Original Mural located in EFF’s San Francisco office by EFF Art Director, Hugh D'Andrade

Original Mural located in EFF’s San Francisco office by EFF Art Director, Hugh D’Andrade

Earlier this month, the Governor of California signed the Electronic Communications Privacy Act (CalECPA), which requires that police in California get a warrant before they can search an electronic device, obtain digital records like emails and text messages, or obtain a user’s past or future location information.

Most importantly, evidence obtained in violation of CalECPA is inadmissible in criminal cases.

California is only the third state to have so far offered protections for both electronic content as well as location information (along with Maine and Utah), but with a population larger than Canada’s that encompasses about 12% of the total U.S. population, this is no small deal.

Attorneys at the Electronic Frontier Foundation (EFF), the ACLU of Northern California, and the California Newspaper Publishers Association worked together to write and sponsor the bill. Lead by activists at the EFF, a campaign to build support among a wide array of groups was key the bill’s ultimate success. Moreover, this campaign got the state’s most influential law enforcement organizations – the state’s District Attorney, Police Chiefs, Sheriffs’, and Law Enforcement Associations – to all drop their opposition to CalECPA.

Writing good law is one thing, but organizing a campaign to build support is another. Without the efforts of activists at the EFF, it is highly unlikely that the bill would have passed, let alone with two-thirds support from both houses of congress.  And as it turns out, getting that two-thirds’ support was extremely important.

Without a supermajority, criminal defendants would not be able to suppress evidence collected in violation of CalECPA, which would have meant these new laws would have merely created nominal rights without actual remedies.  Luckily, thanks to the efforts of a diverse coalition, CalECPA did pass with a supermajority and does include suppression.

In order to see why CalECPA’s supermajority was so critical, it is important to understand a bit about the ‘fruit of the poisonous tree doctrine’ and the California ballot initiative process.

The ‘fruit of the poisonous tree’ doctrine embodies a straightforward and principled idea: that law enforcement officers cannot use illegally obtained evidence against criminal defendants. Without it, police would be incentivized to break the law to gather incriminating evidence (e.g. warrantless searches, compelled confessions, etc).  In essence, the doctrine says that police cannot break the law to make their case (i.e., cannot yield fruit from a poisonous tree).

However, when common law rules and statutes contradict each other, the statute generally prevails. California has a ballot initiative process by which citizens can bypass the legislature and enact statutes by way of popular vote, and in 1982 Californians chopped down the ‘fruit of the poisonous tree’ doctrine with the passage of Prop. 8 (this is an earlier Prop. 8 than the famed 2008 law that rendered same-sex marriage in the state illegal).

The 1982 proposition was a ‘tough-on-crime’ initiative that added a new section to the state constitution, which included a deceptively named “Right to Truth-in-Evidence.”  This “right” stated that all “relevant evidence shall not be excluded in any criminal proceeding” unless “by a two-thirds vote of the membership in each house of the legislature.”  Essentially, this means that any evidence that is “relevant” is admissible – even if the police violated the law to obtain it – unless the law the police violated passed with a supermajority in both houses of congress

States cannot diminish rights guaranteed by the federal constitution, so in practice the “truth in evidence” law only applies to state-specific protections that go above and beyond those guaranteed by the federal constitution.  So, police in California cannot use evidence against criminal defendants obtained pursuant to a warrantless home invasion or some other search or seizure that violates the federal constitution.  However, the Supreme Court of California has found additional protections to be guaranteed by the state constitution, which go above and beyond those provided by the federal constitution. For example, the California constitution has stronger privacy protections than the Fourth Amendment when it comes to one’s expectation of privacy in phone records, bank records, garbage left for pickup, and overhead aerial surveillance.  Because of Prop. 8, a criminal defendant cannot suppress relevant evidence collected in violation of Thus, these protections are essentially meaningless if you are a criminal defendant whose rights have been violated.

Since there are pretty much[1] no federal laws or broad Supreme Court decisions mandating warrants for searches of electronic communications or location information, CalECPA has created privacy rights that go above and beyond those currently guaranteed by the 4th Amendment. Thus, it was imperative that CalECPA passed with a supermajority, and it is cause for genuine celebration that it did.

While gaining these protections in California is a momentous achievement, law enforcement should be required to get a warrant to read anyone’s emails or track his or her location.  The last federal laws that provided standards for collection of electronic communications were passed before the internet was a thing and before people carried tiny computers full of their most personal communications in their pockets.  If you support these protections on a national level, contact your congresspersons to tell them to bring our privacy protections into the digital age: http://www.digital4th.org/

[1] The Secured Communications Act does require a warrant for the content of electronic storage is less than 180 days old (e.g., emails from within the past six months).  Given many people’s habit of storing years worth of text messages and emails on third party servers (e.g., those of your cell phone companies and Google), this 180-day warrant requirement is a temporary and limited solution at best.



Summer in the Southwest: An Exploration of the Legal Challenges faced by the Local Native American Communities

Widespread unemployment, drug and substance abuse, suicide, lack of quality education—these are just a few examples of the social and systemic challenges faced by those living within the Navajo Nation. They are the same problems experienced by a majority, if not all, Native American communities in the United States. Yet there are only a limited number of nonprofit legal aid organizations that provide free legal services primarily to Native Americans residing on reservations, one being DNA-People’s Legal Services, where I worked as a PHRGE Fellow last summer.

Chaco Culture National Historic Park, New Mexico

Chaco Culture National Historic Park, New Mexico

What is remarkable about DNA-People’s Legal Services is not only its mission to provide civil legal services to those in need, but perhaps more importantly, to promote tribal sovereignty and respect the diverse cultures of the organization’s various clients. During my fellowship, I not only had the privilege of working on matters with licensed attorneys in New Mexico courts, but I also completed tasks for licensed attorneys and tribal advocates within the Jicarilla-Apache and Navajo Nation.

One issue that immediately came to my attention from the first week of the fellowship and recurred throughout the remainder of my summer was the predatory practices of lenders and dealerships situated among the border-towns of the Navajo Nation. A main target of these predatory schemes were elderly, non-English speaking Navajos. As part of my experience with DNA, I had the opportunity to meet with one such victim at her rural residence on the Navajo Nation outside of Farmington, New Mexico. A widowed woman of about eighty years of age, fluent in Navajo and non-English speaking, related her story of the predatory acts taken by a local car dealership.

Though her husband had cancer caused by working at a uranium mine, which would otherwise entitle her to benefits, the mine’s staff are unresponsive to requests for compensation, leaving the widow to subsist on a meager income. A higher income was falsely reported on a credit application used to get the widow a new truck so that her son could transport the firewood needed to heat her home for the winter. Moreover, it was an income that any reasonable care salesman would know that the woman could not afford. Yet the salesman promised that the woman could afford the truck, despite her severely limited income. It was a truck sold to a woman who had never obtained a driver’s license and whose driving experience was limited to operating a truck in a sheep camp on the Navajo Nation in her late teens and early twenties.

Though we were fortunately able to alleviate her legal issues with regards to the predatory lending practices, this story is not anomaly. The prevalence of such businesses near the Navajo Nation exemplify that predatory schemes are an implicit norm. A norm that magnifies the challenges faced by southwestern Native American communities and illustrates one of many modern legal and social challenges faced by the most historically oppressed, and too often forgotten, community in the United States.

-Chelsea Brisbois, JD Candidate 2016



International Corporate Accountability

During the week of June 29 to July 3, I had the unique opportunity to be in a room full of human rights lawyers and advocates representing their respective organizations from the Global North and Global South. These brilliant and inspiring minds were brought together by an Educational Exchange Conference hosted by ProDESC. The organizations present were CAJAR, HRLN, CALS, ERI, SERI, PODER, ECCHR, and the Bertha Foundation. One by one, each organization presented its focus areas, cases, strategies, challenges, successes, and opportunities. Every presentation was followed by a question and answer session. It was during one of these sessions that the following analogy was used: The interaction between human rights defenders and corporations is like “mosquitoes biting a giant.”

This comparison was brought up when we were discussing the various strategic opportunities available for human rights defenders to challenge systems of power, specifically corporations. During the course of completing my report on the right to free, prior, and informed consultation of the indigenous Zapotec community in Juchitán, Oaxaca, where a transnational corporation aspires to build a wind energy park, I found myself coming back to one question: Who is holding this corporation accountable for their role in human rights violations? It turns out that NGOs from both the developed and developing world are asking themselves the same thing because their calls for greater accountability for human rights violations by transnational corporations are growing stronger.

As of yet, no international legally binding instrument exists to hold corporations accountable for failing to uphold human rights standards. International human rights standards have traditionally been the responsibility of governments. The first call for such an instrument began in the 1960s. Since then, the UN “Protect, Respect and Remedy” Framework and the UN Working Group on Business and Human Rights have been established. Nevertheless, without an accompanying legally binding document, it is doubtful how effective these truly are. While it is unclear when or whether the demand for such a document will be met, one thing is certain: transnational corporations have and are only continuing to gain power and influence on the world economy that often negatively impact the human rights of communities where these corporations conduct operations. Without a uniform set of standards at both the national and international level, those affected by such acts, like the indigenous Zapotec people, will remain vulnerable without meaningful access to the justice they not only deserve, but to which they are entitled.

So, I leave you to ponder this question: until we have effective national and international standards to hold transnational companies accountable for human rights violations, how do we bite in the right place to get the giant to scratch? The answer we came up with during the conference seems rather simple: Follow the money.

For more information about this issue, read this article and visit the UN Human Rights website.

-Kacy Cuenta

The Indigenous Zapotec Community of Juchitán

Kacy Cuenta (center), surrounded by her ProDESC team

Kacy Cuenta (center), surrounded by her ProDESC team

For the past twelve weeks, I had the opportunity to advocate for the rights of the indigenous Zapotec community as a Program on Human Rights and the Global Economy (PHRGE) Fellow in Proyecto de Derechos Económicos, Sociales y Culturales (ProDESC) in Mexico City. As a non-governmental organization, ProDESC’s mission is to defend the human rights of underrepresented workers and communities in Mexico so as to promote a higher quality of life and participation in their own development. It is this very mission combined with my interest in corporate accountability that attracted me to this organization. I contributed to ProDESC’s current work regarding human rights violations in the consultation process for the implementation of a wind energy project in Juchitán.

International Labour Organization Convention No. 169 provides that States are obligated to guarantee the indigenous peoples’ right to free, prior, and informed consultation when legislative or administrative decisions and actions could directly impact their lives. To comply with this, Mexico devised a Protocol for the development of wind energy projects. The State initiated the consultation process in November 2014. ProDESC formed an Observation Mission to ensure that the process was being conducted according to the highest standards of human rights. I was tasked with composing a report that compared the Protocol with (1) the reports published from the Observation Mission and (2) the standards established in Saramaka People v. Suriname and Kichwa Indigenous People of Sarayaku v. Ecuador, two court cases decided by the Inter-American Court of Human Rights.

I have identified that in the first two phases alone, most of the principles of the Protocol have not been followed. The Zapotec peoples are being coerced by authoritative representatives of the wind energy company, prevented from gathering to discuss their interests prior to sessions, limited by biased moderators from participating, and living in a hostile environment filled with threats and attacks of intimidation. Moreover, the community’s customs and way of life are not respected; for example, interpreters are unqualified and inconsistently translate pertinent information. Above all, the information provided is lacking and requests for further information are not met; therefore, they are unable to properly evaluate the project. Mexico has failed to ensure that the Zapotec peoples are properly consulted on the implementation of a wind energy park that could affect their cultural and social life. Subsequently, Mexico is also violating their fundamental right to cultural identity.

It is clear that simply having a written Protocol that incorporates international mechanisms is not enough; enforcement of said Protocol is essential. More often than not, such enforcement is lacking because corporations exploit the State’s need for economic development. States cannot fall prey to this. They must remain grounded and not allow the economic interests of corporations to take precedence over the human rights of the potentially affected community. In this case, the consultation process is one of the first Mexico has tried to conduct. Therefore, it is crucial that the violations already identified be addressed to prevent a bad precedent from being established.

-Kacy Cuenta

PHRGE in Geneva: Concluding Observations Released

On Friday, The UN Committee on the Elimination of Racial Discrimination (CERD) released its Concluding Observations, following its review of the United States on August 13 and 14.  Northeastern Law student Hannah Adams represented PHRGE at the review and lobbied the committee on the issue of access to justice in civil cases, and the negative outcomes experienced disproportionately by people of color when unrepresented in civil matters where basic human needs are at stake.  In their Concluding Observations the Committee made strong recommendations about this issue in Paragraph 23:

Access to Legal Aid

While welcoming the steps taken by the State party to improve access to justice by indigent persons, such as the Access to Justice Initiative launched in March 2010, the Committee remains concerned at the ongoing challenges faced by indigent persons belonging to racial and ethnic minorities to effectively access legal counsel in criminal proceedings in practice. It also reiterates its concern at the lack of a generally recognized right to counsel in civil proceedings (CERD/C/USA/CO/6, para.22), which disproportionately affects indigent persons belonging to racial and ethnic minorities to seek an effective remedy in matters such as evictions, foreclosures, domestic violence, discrimination in employment, termination of subsistence income or medical assistance, loss of child custody, and deportation (art. 6).

The Committee reiterates its previous recommendation that the State party adopt all necessary measures to eliminate the disproportionate impact of systemic inadequacies in criminal defence programmes on indigent defendants belonging to racial and ethnic minorities, including by improving the quality of legal representation provided to indigent defendants and ensuring that public legal aid systems are adequately funded and supervised. It also recommends that the State party allocate sufficient resources to ensure effective access to legal representation for indigent persons belonging to racial and ethnic minorities in civil proceedings, particularly with regard to proceedings that have serious consequences for their security and stability, such as evictions, foreclosures, domestic violence, discrimination in employment, termination of subsistence income or medical assistance, loss of child custody, and deportation proceedings.

The Committee also recommended that the U.S. provide for legal assistance in all immigration-related matters in Paragraph 18.  Read the full Concluding Observations.

PHRGE in Geneva: Day 5

Today’s video blog is an update from the second and final day of the CERD (Committee on the Elimination of Racial Discrimination) review of the U.S. in Geneva where I am representing PHRGE as part of the U.S. civil society delegation.  Today the Committee again brought up concerns about access to counsel in civil cases, the issue I’ve been focused on here.  The committee also raised concerns about the racially disparate impact of the foreclosure crisis, and the criminalization of homelessness, two issues the housing group I’ve been working with were hoping would get some attention.  Here is some more media coverage and the UN’s press release about the second day of review.  This is my last post, as I am leaving tomorrow.  Thanks for tuning in- I will keep you updated on our follow-up activities, and post the Concluding Observations when they come out!

Unfortunately in this video I am sitting directly in front of the direct sunlight, so apologies for the poor quality.  Here are some better pictures of the Palais de Nations.

Palais de Nations 3Palais de Nations 1 Palais de Nations 2