Tuesday 19 January 2016

Florida’s Death Penalty Law Ruled Unconstitutional

Last week, in an 8-1 decision, the United States Supreme Court invalidated the State of Florida’s death penalty statute. In a January 12 opinion in Hurst v. Florida, the Court held that the law violated the Sixth Amendment by allowing the trial judge, rather than the jury, to make the ultimate decision on punishment. While capital juries in Florida did render an “advisory sentence,” this did not satisfy the requirement previously set forth by the Supreme Court in Ring v. Arizona that a jury must find the facts necessary to sentence a defendant to death. In Hurst’s case, the jury’s 7-5 vote for the death penalty was only a recommendation, and did not specify aggravating facts. The Supreme Court’s opinion, available here, was authored by Associate Justice Sonia Sotomayor.
While the Hurst opinion does not touch on the bigger question of the continued constitutionality of the death penalty in the United States, it marks another restriction imposed by the federal judiciary. This comes at a time when the number of death sentences and executions is on the decline nationally, and the number of abolitionist states continues to grow. In 2015, Nebraska became the nineteenth American state to abolish the death penalty, and governors have imposed moratoriums on executions in another four. Only six states actually carried out executions in 2015. As Harvard Law Professor James Ogletree writes in a recent article in Slate, in the United States “the death penalty is collapsing under the weight of its own corruption and cruelty.”

This post was contributed by Dr. Brian Farrell, who is a Lecturer in Law and Associate Director of the Center for Human Rights at the University of Iowa College of Law. Follow him on Twitter at @IowaLawFarrell.

Wednesday 6 January 2016

Darcy: Celebrating the Four Freedoms: Freedom of Religion

“The second is freedom of every person to worship God in his own way – everywhere in the world”.
– Franklin Delano Roosevelt.
I am pleased to contribute a short essay to the University of Iowa Center of Human Rights’ celebration of the ‘Four Freedoms’ speech, delivered by United States President Roosevelt in January 1941. Those working in this field are well aware that the speech itself and the context of the Second World War in which it was made gave significant impetus to important human rights developments, including the emergence of an international system aimed at protecting and promoting human rights. That system continues to evolve, to elaborate on the substance and meaning of human rights, and to identify where responsibility lies for ensuring respect for human rights.
In considering the second of the four freedoms referred to by Roosevelt in his address, “the freedom of every person to worship God in his own way – everywhere in the world”, it is instructive to look at how this right is elaborated upon in the Universal Declaration of Human Rights. Article 18 provides that:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
But what if one’s religion and its manifestation harms the human rights of others? Today, there remain numerous examples of violations of rights and freedoms carried out in the name of religion. The International Covenant on Civil and Political Rights, which replicates the provision from the Universal Declaration, purposefully adds that freedom of religion might be subject to such limitations “as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. The Universal Declaration states that nothing in the instrument can be taken as “implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein”.
The tension that may arise between freedom of religion and the rights and freedoms of others came to the fore in a recent case from Northern Ireland. Gareth Lee took a successful claim against Asher’s Baking Company because of the refusal by the bakery to prepare a cake with a message in support of gay marriage. This constituted discrimination on the grounds of his sexual orientation and political opinion, according to Judge Brownlie of the Northern Ireland county court. According to the judge:
Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted. The law requires them to do just that, subject to the graphic being lawful and not contrary to the terms and conditions of the company. […] The defendants are entitled to continue to hold their genuine and deeply held religious beliefs and to manifest them but, in accordance with the law, not to manifest them in the commercial sphere if it is contrary to the rights of others.
The case demonstrates how freedom of worship, as Roosevelt described it, can be problematic when the manifestation of one’s religion moves from the private individual sphere to the public, such as when conducting business. Religion and belief are of course not entirely private or closed affairs for many individuals and groups and public manifestations are a common and often intrinsic part of the exercise of religious freedom “in community with others”. The Northern Ireland court drew the line, however, where such religious belief harmed the rights of others in the context of business activities. The bakery has appealed the decision.
The relationship between business and human rights has garnered considerable attention over the past decade at the United Nations. Business enterprises, in particular multinational corporations, have been the focus of concerted efforts which seek to ensure that they respect human rights throughout their operations. While this may seem a departure from the traditional State-centric approach of international human rights law, it is readily apparent today that human rights can be violated by the actions of so-called non-State actors. The United States is currently preparing a national implementation plan for the UN’s Guiding Principles on business and human rights, and in doing so, may need to grapple with the call for so-called ‘conscience clauses’ which would legally allow companies to refuse to provide services on the basis of religious belief.
In his Four Freedoms speech, Roosevelt had called for a concerted effort to meet the challenges being faced by the United States during the Second World War: “A free nation has the right to expect full cooperation from all groups. A free nation has the right to look to the leaders of business, of labor, and of agriculture to take the lead in stimulating effort.” He was referring here to the necessity of increased arms production, while looking forward to a future of reduced armaments world wide. When the United Nations adopted the Universal Declaration of Human Rights in 1948, it similarly considered that “every individual and every organ of society” had a role to play in promoting respect and securing the “universal and effective recognition and observance” of human rights. Business enterprises can contribute to both the realisation or indeed the harming of human rights, much like States themselves.

Dr. Shane Darcy is a lecturer at the Irish Centre for Human Rights and the editor of the Business and Human Rights in Ireland blog.
 This short essay is one in a series celebrating the 75th anniversary of the Four Freedoms speech, and is cross-posted from the UICHR’s Four Freedoms webpage.

Keane: Celebrating the Four Freedoms: Freedom of Speech and Expression

“The first is freedom of speech and expression – everywhere in the world.”
– Franklin Delano Roosevelt.
Should we think of the four freedoms in terms of a hierarchy? If so, then freedom of speech and expression comes top, as the first enumerated in Roosevelt’s speech, although the speech itself gives no indication beyond the numbers that some of the freedoms are of more importance than others. In contemporary international human rights law, the United Nations emphasises that “[a]ll human rights are universal, indivisible and interdependent and interrelated”, meaning that there is no ranking. For many however, freedom of speech and expression is a ‘gateway right’ essential to the realisation of all other rights. In other words, it is more important than many other rights for it underscores the conditions required for the realisation of a just domestic and world order essential to the articulation and implementation of global rights standards. Thus the 1789 French Declaration of the Rights of Man and of the Citizen, a precursor of the contemporary documents, described free communication of thoughts and opinions as “one of the most precious rights” (Article 11).
It is understood that freedom of expression is not unlimited, but the nature of limitations on freedom of expression varies from a global perspective. Firstly, there is universal agreement on the need for a free press and other essential tools of expression. But differences arise in relation to the need to protect minorities and others from harmful speech, with marked differences in global perspectives. What is considered protected speech in the United States, usually the strongest advocate at the international stage, can be a crime in Europe – both regions sharing common legal traditions. This may be amplified when contrasted with other regions of the world. The role of speech in the commission of atrocities, notably the Rwandan genocide, has played out in international criminal tribunals – the so-called ‘media trial’ of Ferdinand Nahimana and others before the International Criminal Tribunal for Rwanda focused on the use of radio to instill hatred in listeners and foster genocidal intent. The role of similar propaganda in the conditioning of the German public to turn on its Jewish minority before the militarised genocide of the Holocaust was also a feature of the Nuremberg trials of Julius Streicher and others. These extreme situations have led to the understanding that incitement to violence or atrocities cannot be protected by freedom of expression and so it does not have the absolute status at the international level of, say, the prohibition on torture.
A more problematic situation was the so-called ‘Danish cartoons’ controversy, which lasted over a decade and culminated in the shootings one year ago in Paris of the Charlie-Hebdo cartoonists. The shootings were widely depicted as an assault on freedom of expression. There were two strands to the linking of freedom of expression and the cartoons. Firstly, that the cartoons are protected by the right to freedom of expression. Secondly, that the cartoons themselves somehow represented the right to freedom of expression; that they are symbolic of this right and by desisting from drawing them, the wider right itself was under threat. On the first, European cartoonists were not prosecuted for producing the cartoons, which leads to the conclusion that they were protected by freedom of expression (although the debate is a nuanced one given the existence of laws protecting racial and religious groups in Europe). The second is much more difficult – why did these cartoons become invested with this symbolic defence of freedom of expression? And should they have been? There is no answer, but there has long been an acceptance in Europe that certain forms of speech are not tolerated. The European Court of Human Rights regularly upholds prosecutions of those who attack minorities through speech, in particular racial and religious groups. The attacks in Paris (both of them) should not impact the balancing act inherent in protecting European minorities while upholding freedom of expression and related values. These debates will continue and while everyone is agreed on the fundamental importance of freedom of expression, and its securing “everywhere in the world”, blanket articulation of freedom of expression can also lack nuance essential in finding the right balance. There is an interesting story told about freedom of expression by the South African judge, Albie Sachs:
“I once shared a platform at a Book Fair in Sweden with the Nobel Prize winning Nigerian writer, Wole Soyinka, and Nadine Strossen, a distinguished leader of the American Civil Liberties Union, an extremely articulate and persuasive defender of free speech. Nadine spoke forcefully and fluently in favour of virtually unlimited free speech. Wole then started his response in a way that I found surprising and disconcerting. ‘We have just been listening to a white middle-class woman from America’, he told us in his deep voice, ‘giving us a typical lecture of the kind we can expect from a white middle-class American woman.’ Nadine went pale. The audience was embarrassed. I felt a degree of shame that a great writer from my continent could dismiss her arguments in that shallow way. Wole paused for a moment, relaxed his stern posture, and added more quietly: ‘You see, Nadine? These were just words. And they hurt, didn’t they?’”
Wole’s speech went on to describe the role of words, speakers and broadcasters in inciting massacres in his native northern Nigeria. Sachs continues:
“Normally I’m a great defender of free speech against any form of control. Normally I am concerned about censorship and thought control, about the importance in an open society of not suppressing alternative and unpopular views. But at the same time I believe that the right to say what I like, when I like, to whom I like, has to acknowledge the demeaning and destructive impact that words may have in a particular context… In sum, the libertarian right to speak your mind has to be balanced against profound constitutional values of shared citizenship.”
Sachs defended individuals being prosecuted under apartheid laws, one of the most repressive regimes of the UN era including widespread curtailment on freedom of expression, so his balanced understanding of freedom of expression is worth noting. This is particularly so given that, technically, we are realising “freedom of speech and expression – everywhere in the world”, with the internet age. Roosevelt’s first freedom may actually, to a certain extent, have arrived. Although the extent to which the marginalised partake in this freedom is also worth reflecting on, including connectivity gaps between men and women in particular in developing countries. Similarly many of the basics remain the same as they did in Roosevelt’s time, including protection for those who criticise, as journalists, bloggers, writers, human rights defenders or citizens, balanced with the need to ensure that minorities and other groups are afforded protections as well as access.
Dr. David Keane is Associate Professor in International Human Rights Law at Middlesex University, London, UK.

This short essay is one in a series celebrating the 75th anniversary of the Four Freedoms speech, and is cross-posted from the UICHR’s Four Freedoms webpage.

Farrell: The Significance of Roosevelt's Four Freedoms speech

January 6, 2016, marks the seventy-fifth anniversary of a significant milestone in the recognition and protection of human rights. On January 6, 1941, with war raging in Europe and the Pacific, President Franklin Delano Roosevelt delivered his State of the Union address to Congress. Although the United States was not yet fighting in the Second World War, Roosevelt argued against isolationism, warning that “the future and safety of our country and of our democracy are overwhelmingly involved in events far beyond our borders.” He went on to discuss the country’s policy of national defense, support for other democratic nations, and a just peace.
Near the conclusion of the speech, the President called for a post-war world founded upon “four essential human freedoms.” The first of these was freedom of speech and expression for all people. The second was the freedom for every person to worship in his or her own way. The third was freedom from want, which Roosevelt described as meaning a healthy peacetime life for the inhabitants of every nation. The fourth was freedom from fear, which he defined as a reduction in armaments to prevent future aggression between nations. The President stressed that these four freedoms were not a vision for the distant future, but a concrete plan for a better world in the present generation, and the antithesis of the “new order of tyranny which the dictators seek to create with the crash of a bomb.”
The speech was – and is – significant. It suggested that world peace and security were inextricably tied to the protection of fundamental rights of all. In protecting these rights, it also went beyond familiar American Constitutional liberties (freedom of speech; freedom of religion) to include positive rights. Freedom from want implied that all people had a right to secure basic necessities. Freedom from fear implied all people held a right to live in a safe world.
Roosevelt’s Four Freedoms became a blueprint for a post-war international order concerned not just about nations, but also about individuals. This emphasis on the dignity of every human being was, perhaps, unsurprising in light of the atrocities perpetrated during the war. Shortly after Germany’s surrender and Roosevelt’s death, delegates from the Allied nations met in San Francisco in the summer of 1945 to establish the United Nations, whose purposed included reaffirmation of “faith in fundamental human rights.” To that end, the U.N. General Assembly promptly created a Commission on Human Rights to define, promote, and protect human rights.
The Commission, chaired by Eleanor Roosevelt, widow of the late President, worked to craft a statement of fundamental rights. On December 10, 1948, the U.N. General Assembly unanimously adopted the Universal Declaration of Human Rights, generally considered to be the foundation of the modern human rights system. Both the Declaration and the system that grew out of it were strongly influenced by Roosevelt’s Four Freedoms. The Declaration’s preamble reveals this, proclaiming that “the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.”
Of course, these four essential freedoms have not existed in reality for many of people around the globe in the post-war years. Perhaps for this very reason, it is valuable for us to remind ourselves of their roots in the dark days of early 1941 as ideals for a secure and peaceful future.
Dr. Brian Farrell is Lecturer in Law and Associate Director of the Center for Human Rights at the University of Iowa. 

This short essay is one in a series celebrating the 75th anniversary of the Four Freedoms speech, and is cross-posted from the UICHR’s Four Freedoms webpage.

Celebrating the Four Freedoms

Today marks the 75th anniversary of President Franklin Delano Roosevelt’s Four Freedoms speech, in which he identified four essential human freedoms that would become part of the foundation of the post-war international human rights system. These were: Freedom of Speech and Expression, Freedom of Religion, Freedom from Want, and Freedom from Fear. 
To celebrate the occasion, the University of Iowa Center for Human Rights is publishing a series of short essays (which will be cross-posted here) exploring the Four Freedoms written by past UICHR visiting scholars (all of whom are graduates of the Irish Centre for Human Rights). 
With special thanks to Brian Farrell