Justiciability of the Right to Education


During this session of the UN Human Rights Council (May 27 to June 14), Kishore Singh, the UN Special Rapporteur for Right to Education, presented a report that describes the ways in which the right to education (which is characterized as an “economic, social, and cultural right” in UN treaties) is  justiciable.  In the report, he also encourages States to promote access to courts for people who claim violations of the right to education.

Many member-states supported the recommendations in his report during the Human Rights Council meeting as you can see from this video.  Portugal even introduced a resolution calling for States to create mechanisms to make education rights more justifiable.

The United States representative, however, expressed concern in regard to several aspects of the report.  The representative, for example, said “while quality of education is the highest of ideals and something we strive for in our schools daily, we do not agree with the phrasing in this report implying that existing rights include quality education.”  This statement comes at a time when we are seeing a crises in our public education system across the nation.  We essentially have a dual public school system— some schools provide quality education while others do not.  Several cities are closing schools (in many cases in minority communities).  Chicago’s Board of Education is closing over 10% of its public schools effective at the end of this school year.  Additionally, the United States representative disagreed with Mr. Singh’s interpretation of a 2003 New York Court of Appeals decision that teacher quality is justiciable.

I had an opportunity to participate in a side-event during this Human Rights Council session on promoting justiciability of the right to education by using indicators in litigation.

Sex selection abortions in India and the United States

In an article in Slate, “It’s a Trick“, I described the great care taken by the makers of “It’s A Girl,” a “documentary” on sex selection abortion in India and China to disguise connections to anti-abortion groups in the United States and to use the language of women’s equality movements.  Many feminist groups across the country and on university campuses have been screening this movie.  When I was asked to moderate a discussion after one such screening, I became curious about the financing sources for the film and the background of its director.   Through searching the ownership of several domain names, I found that Evan Davis, the director of the film worked for Harvest Media Ministries, a media company that makes anti-abortion and other videos for Church groups.  When I asked him about his financing sources, he refused to disclose them, but did admit that some donors were people he met during his tenure at Harvest Media Ministries.

The “documentary” paints a partial picture of the complexities of the situation in India.  Without  knowledge of the realities in India, some people may have been misled by the slanted portrayal to support the film and donate to charities it promotes.  The only scenario on abortion presented in the film is one where those who believe in autonomy rights of women and those who believe in the right of the fetus agree – a woman should not be forced to have an abortion because her fetus is female (or for any other reason).  To this end, the movie extensively covers Mitu Khurana, a woman who left her husband because he physically abused after she refused to abort her female fetuses.

The film, however, fails to depict the most common cases in India –- women who make the choice to abort a female fetus without physical violence or overt coercion.  Poor women in villages have told me that they do not want to bring girls into the world and do not want them to go through what they have faced.   Some might argue that these women cannot make this choice “freely” in the context of widespread “son preference.”

The other type of situation that the film fails to depict is one where a woman would face violence from her husband and in-laws if she didn’t abort the fetus, but gave birth to a girl instead.  Mitu Khurana’s family is depicted as middle class and she escaped from her husband with the financial support of her parents.  Countless poor women do not have that luxury.  Indeed, they are in a “double-bind” — they face violence at home if they do not have an abortion, and face jail if the do.

Continue reading

UN Special Rapporteur, Rashida Manjoo, will moderate a Panel Discussion & Deliver a Keynote Address at the University of Chicago Law School

You are invited to attend a panel discussion on Tuesday, May 14 from 12:15 p.m. to 2.30 p.m. in Chicago on the occasion of the public launch of a report, Women in Prison in Argentina: Causes, Conditions, and Consequences, written by Cornell Law School’s Avon Global Center for Women & Justice and International Human Rights Clinic, the Defensoría General de la Nación Argentina (Public Defender), and the University of Chicago International Human Rights Clinic.  The Report relies on empirical data from a survey developed by the authors of the Report and randomly administered to nearly 30% of all women prisoners in federal prisons in Argentina.

There has been an increase in the rate of women’s imprisonment in many countries around the world. Yet many countries fail to adequately address the unique issues raised when women are deprived of their liberty. The panelists will discuss the causes of the increase in rates of imprisonment, including the global war on drugs and drug use. They will also address the conditions of women’s imprisonment, such as lack of gender-specific healthcare, shackling during childbirth, and sexual violence in prisons. The increase in women’s imprisonment impacts children and families. The increase in women’s imprisonment impacts children and families.  To address this, some countries such as Argentina have prisons where children up to 4 years old can live with their mothers.  What are the benefits and challenges of this? What are the alternatives to this?  The panel will discuss issues relating to women’s imprisonment from an international and comparative perspective.  What can countries learn from each other’s practices?  To what extent are the Bangkok Rules recently adopted by the UN being implemented in women’s prisons around the world? The findings and recommendations from Report on Argentina will also be discussed.    

Moderator: Rashida Manjoo, UN Special Rapporteur on violence against women, its causes and consequences


• Mikhail Golichenko, Senior Policy Analyst, Canadian HIV/AIDS Legal Network

• Andrea Huber, Policy Director, Penal Reform International (London)

• Sital Kalantry, Clinical Professor of Law and Director of the International Human Rights Clinic, University of Chicago Law School

• Silvia Martinez, Director of the Prison Commission of the Public Defender’s Office in Argentina

• Gail Smith, Founder and Senior Policy Director, Chicago Legal Advocacy for Incarcerated Mothers.

Student speakers: Jullia Park, J.D. Candidate, 2014, University of Chicago Law School and Jamie Stinson, J.D. Candidate 2014, Cornell Law School

The venue is Room III at the University of Chicago Law School, 1111 East 60th Street, Chicago.  Open to the public and lunch will be provided but seats are limited.    

For special assistance or needs, please contact Aican Nguyen at 773.702.0184Image

On the Job! Human Rights Clinical Fellow at the University of Chicago Law School

logo   The University of Chicago Law School is seeking qualified applicants for a full-time position training and supervising law students as a Fellow, appointed with the rank of Lecturer, in the Law School’s International Human Rights (IHR) Clinic. The position will begin June 1, 2013, or later. The appointment is for one year, but reappointment for a second term is also possible. The IHR Clinic works for the promotion of social and economic justice globally, including in the United States. The IHR Clinic uses international human rights laws and norms as well as other substantive law and strategies to draw attention to human rights violations, develop practical solutions to those problems using interdisciplinary methodologies, and promote accountability on the part of state and non-state actors. IHR Clinic projects include litigation in domestic, foreign, and international tribunals, as well as non-litigation projects, such as documenting violations, legislative reform, drafting reports, and training manuals.

Reporting to the Director of the IHR Clinic, the successful candidate will participate in all aspects of the IHR Clinic and job responsibilities will include supervising student projects including providing feedback on written work, participating in team meetings, working with the Director to develop teaching materials and teaching in the clinic, developing and selecting clients, managing aspects of a blog and website relating to international law and the IHR Clinic, organizing and coordinating relevant events, lectures and other clinic activities, and may include international travel.

Candidates must have a J.D. and at least two to four years of work experience as a practicing lawyer, preferably including experience with international human rights litigation or advocacy. Must be a member in good standing of the bar of Illinois or another state. Prior teaching experience is highly desirable, but not required. Fluency in English is required, and another language, preferably Spanish, is strongly desired. Demonstrated ability to work with technology, including posting to a blog and website.

Each candidate should submit a cover letter, resume or curriculum vita, a certified law school transcript, a list of references, and a legal writing sample (not edited by anyone else). Candidates are required to apply online and upload all application material at the University of Chicago Academic Career Opportunities website: https://academiccareers.uchicago.edu/applicants/Central?quickFind=52797 .

To ensure full consideration of your application, all application materials should be uploaded to the referenced website by May 21, 2013. Screening will continue until the position is filled or until the application deadline of July 31, 2013. The University of Chicago is an Affirmative Action/Equal Opportunity Employer.

India’s Supreme Court Ruling: A Defeat for the Pharmaceutical Industry?

             The global pharmaceutical industry is parading its usual arguments in response to the Indian Supreme Court’s recent judgment rejecting Novartis’ patent over a new version of a  drug used to treat leukemia.   A spokesperson for an industry trade group believes that the decision is “another example of . . . a deteriorating innovation environment in India.”  A Novartis spokesman adds that the judgment “is a setback for patients that will hinder medical progress for diseases.”
             The Indian Supreme Court decision which can be found here rejected Novartis attempt to extend patent protection for the drug by tweaking certain aspects of it (known as “ever-greening”).  Until 2005, India only allowed companies to patent the process by which a drug was created, but not the actual product.  This resulted in the development of a robust indigenous pharmaceutical industry.  Succumbing to international pressure, India signed the WTO TRIPs Agreement, which required it to allow companies to patent the product itself.  When it adopted product patents, the Indian Parliament added a provision to the Indian Patent Act (section 3(d)) prohibiting patents on new forms of medicine unless it increased efficacy of the drug.   Amy Kapczynski pointed out in an article published several years ago that  the motive of this provision was to prevent “ever-greening” and the language was borrowed directly from a EU drug regulatory directive.

Protection (from rape) or Freedom (to have sex)?

The debate in India surrounding  reforms to the sexual violence laws are a reflection of the changing mores in Indian society.   With economic liberalization in 1991, a strong middle class with access to new goods, movies, and ideas has emerged.   As a result of the mass protests in the aftermath of the brutal gang rape and death of Jyoti Singh Pandey, the President signed an Ordinance reforming the sexual violence laws on February 3, 2013. (The Ordinance took some provisions from an amendment to the Indian penal code that was pending in Parliament prior to the gang rape and adopted some provisions suggested by the Verma Committee report, but rejected other important provisions from that committee.  The Verma Committee was formed by the government after international and national attention focused on the issue of gender-based violence).  Article 123 of the Indian Constitution permits the President to put into place laws that have the weight of an act of Parliament when Parliament is in recess.  But the Ordinance expires on April 4 unless Parliament adopts it or an amended version of it.  The real deadline they are racing against is March 22 because Parliament is in recess again after that.

Key areas of disagreement such as the marital rape exemption and the availability of the death penalty in some cases of rape remain.  Yesterday The New York Times India blog highlighted one issue of debate — whether the age of consent for purposes of the statutory rape provision should be 18 or 16. The Ordinance placed the age at 18 but prior to that it was 16. The new bill that is being considered seems to have lowered the age of consent to 16.

It is some prominent feminist lawyers that have argued in favor of lowering the age of consent.  Indira Jaising points out that “[i]t is quite normal for people to have sexual relations at 16 or 17 years of age. . . . How can we make illegal what is normal?”  Additionally, Flavia Agnes pointed out in an article that appeared in Asian Age on December 23, 2012 that “one-third of all rape cases are filed by parents against boys when their daughter exercises her sexual choice and elopes.”  Thus, if the age of consent was increased, it would give parents more opportunities to mis-use the law. Continue reading

“The Professor, the Bikini Model and the Suitcase Full of Trouble”


An article appeared in the New York Times Magazine yesterday about a physics professor who claims he was duped into unknowingly transporting cocaine from Argentina by a bikini model he met over the Internet.  But at his trial, prosecutors introduced text messages from the professor to the bikini model acknowledging that he knew that he was carrying drugs.   Now he is serving a 4 ½ year jail sentence in Argentina.

The real story about the transport of drugs and incarceration in Argentina is about the numerous women who transport small amounts of drugs across the Argentine border for little money (“drug mules”), face long criminal sentences, and are filling up Argentinian jails.

The International Human Rights Clinics at the University of Chicago Law School and Cornell Law School and the Avon Global Center for Women & Justice have been working with the Defensor del Pueblo de la Nacion  in Argentina on a report that will be released this May about the causes, conditions, and consequences of women’s imprisonment.  Our survey, randomly administered to over 30% of Argentina’s women prisoners in the federal prison system, showed that over 50% of women were in jail for drug-related crimes.

In the interviews we conducted of women in prison in Argentina in October 2012, we met with many women who said they did not know they were carrying drugs, including, Sharon Armstrong, the woman who is briefly mentioned in the New York Times Magazine article.  One young woman said a friend asked her to carry chocolates across the border that had drugs laced in it and another was asked to carry soap with drugs.   These women are all serving a 4 ½  year jail sentence.

Under U.S. foreign policy pressure as part of the “war on drugs”, many Latin American countries adopted harsh drug laws.  Consequently, the incarceration rate in Argentina for women increased by more than 800%, almost double the increase in incarceration for men for the same period.  It is high time that the United States and other countries such as Argentina re-think the lengthy jail sentences for people who make little profit from the drug business, but pay the price for it.