lauren bartlett local human rights lawyering project director nelson mock human rights project...

L A U R E N B A RT L E TTL O C A L H U M A N R I G H T S L AW Y E R I N G P R O J E C T D I R E C T O R

N E L S O N M O C KH U M A N R I G H T S P R O J E C T D I R E C T O R , T E XA S R I O G R A N D E L E G A L A I D

Introduction to the

Human Rights in the U.S. Handbook for Legal Aid Attorneys: Housing Rights &

Domestic Violence

Background on the Handbook

• Aims to get practical and useable human rights information into the hands of legal aid attorneys

• Principles used for drafting:• Simple language• Everyday use• Repetition

• Handbook is available for download on our website: (http://www.wcl.american.edu/humright/center/locallawyering.cfm)

Handbook Overview

Part 1

Part 2

Part 3

Part 4

Part 5

Part 2

Provides Overview of:What are human

rights? What is human

rights law?How is human

rights law relevant to U.S. courts and U.S. policymakers?

Part 2 – Section 2.2 – Intl Conventions

Part 2 – Section 2.2 – Intl Conventions

Click on blue

hyperlinks

Part 3

Part 4 Human Rights Litigation in the U.S.

Part 4 - Section 4. 2 - Sample Arguments: How Human Rights Law Adds Value to Judicial

Interpretation

1. Some state constitutions may support, if not compel, looking to international law for legal interpretation of domestic law.

2. Human rights jurisprudence may offer precedent and models more on point for the case than anything in the federal system or sister states.

3. State courts should interpret U.S. law as consistent with international law whenever possible. See Murray v. The Schooner Charming Betsy, 6 U.S. 64 (1804).

4. Where there is no controlling U.S. law, state courts should look to customary international norms for guidance for its decision See Roper v. Simmons, 543 U.S. 551, 578 (2005).

5. State courts should be part of the transnational dialogue on human rights simply because it is a vital conversation that promotes universal values.

Part 5 – Specific Legal Issue Areas

5.3.1 Introduction: Housing Rights.

5.3.2 Quick Statistics & Resources for Data

5.3.3 Relevant Human Rights Law

Relevant Law cont’d

Relevant Law cont’d

Relevant Law con’td

Relevant Law cont’d

5.3.4 Sample Arguments

5.3.5 Talking Points for Oral Arguments

5.3.6 Case Studies of Legal Aid Attorneys

5.3.7 Sample Briefs & Petitions

Click on blue

hyperlinks

5.3.8 Other Resources

• Catchall section• Other human rights advocacy guides• Reports• Articles, blogs and other collections of relevant

resources

Building a Human Rights Argument

Know your forum…appropriate?

Decide why you are going to use the argument

Decide how you are going to use argument: Orally? Letter? Brief?

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Building a Human Rights Argument

Make arguments based in local, state and federal law

Explain why human rights law is relevant to this court and this case

Introduce your “hook” to human rights law

Introduce human rights law itself

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Specific Case Example

Housing case, Leo Belanger et al v. John Mulholland—tenants went 9 months without water and 5 months without functioning toilet.

Question: Does lack of water alone constitute a violation of the Warranty of Habitability Statute?

Tenants’ Argument to Supreme Judicial Court of Maine:

1. The lack of water alone violated the Warranty of Habitability Statute, because it is an essential feature of a habitable residence in Maine;

2. This standard is consistent with the national standards regarding right to adequate housing, water, and sanitation; and

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Specific Case Example

(Belanger case)3. Then, human rights argument:

Where domestic Constitutional or statutory law is vague, courts have looked to treaties and international law for interpretive guidance. [Fn] “The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” Roper v. Simmons, 125 S. Ct., 1183, 1200 (2005).

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Specific Case Example

(Belanger case)

Then, referred to: Covenant on Economic, Social, and Cultural

Rights Commentary by various U.N. committees/bodies

regarding human right to adequate housing and safe drinking water

The Universal Declaration of Human Rights (“[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family.”)

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Specific Case Example

(Belanger case)

Human rights argument, concluded:

“The right to water is an essential cornerstone for realizing the right to an adequate standard of living as well as the right to health. …. Testimony describing the Belangers’ plight demonstrates a marked decline in the Belangers’ physical and mental health as a result of losing their access to running water. [Cite omitted.] Such deplorable conditions, which are not tolerated under international human rights standards, should not be allowed by Maine laws.”

Appellants’ Brief, p 18, Belanger v. Mulholland, 2011 ME 107 (Me. 2011) (emphasis added)

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Building a HR & Domestic Violence Argument

Getting startedo Identify the potential human rights issueso Identify which materials may be relevanto Think about a possible “hook”

E.g. Implementing legislation as in refugee context

E.g. Local DV & human rights resolutions

“Hook” to Human Rights Law: DV Context

Example 1: Refugee/Asylum Lawo Domestic laws based on ratified treaties

Convention Relating to the Status of Refugees Convention Against Torture

o Congressional record makes this explicit Laws passed to bring U.S. into compliance Makes these treaties directly relevant

o Also a hook for considering other international materials Interpretations by relevant U.N. bodies Jurisprudence of sister signatories Regional treaties/cases based on the U.N. treaties Legitimates use of any international materials

“Hook” continued

Example 2: Local DV & Human Rights Resolutions

“Hook” continued

Resolutions shows that City Council recognizes: o DV is a human rights issue

o Highlights importance/severity of issueo Heightens the seriousness of the case

o Highlights governments’ role in protecting citizens’ rightso “Duty to protect women from DVo Recognizes the need to address systemic failures

that perpetuate VAW

o Citing multiple resolutions evidences growing trend in United States

Building a HR & DV argument continued

o Also think about what your goal is in using international law and human rights principleso Different possibilities

Provide additional support to domestic law Help interpret new, ambiguous or conflicting

domestic law Help analyze situation that does not perfectly fit

under existing laws Challenge existing law

HR & DV argument continued

Make arguments based in local, state and federal law

Explain why human rights law is relevant to this court and this case Introduce your “hook” to human rights law

Introduce human rights law itself

HR & DV argument continued

Laying out argumento Possible “hook”o For example: The Miami-Dade Board of

Commissioners have recognized that freedom from domestic violence is a fundamental right. The Council has further recognized that under international law governments have a duty to protect women from domestic violence, and that a breach of this duty can constitute a violation of women’s right to equality.

HR & DV argument continued

Define the rights at issueo Be expansive

Freedom from DV also tied up with rights to life, security, freedom from torture, equality, etc.

o Start with ratified treaties when possible For example: The ICCPR guarantees the right to

protection against arbitrary interference with one’s privacy, family, and home.

o In some cases, may need to start with non-binding materials to frame the argument accurately

HR & DV argument continued

State what you are asking foro Emphasize international principles in tough case

Probably want to highlight U.S. obligations or international consensus

So your ask may be: Grant FPO in order to protect Petitioner’s freedom from interference in her privacy and home life

Calm the judge’s concernso Link to domestic jurisprudence if possible

Shows that what you are asking for is not outrageous, radical, unprecedented

If no DV cases on point, analogizing to domestic materials on other issues Example: Roper v. Simmons

DV & HR argument continued

For more information on Housing Rights & Freedom from Domestic Violence

Housing Rights webinarFreedom from Domestic Violence webinarOther resources all available at http://www.wcl.american.edu/humright/center/researchtools-coordinatedinitatives-handbooks.cfm