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June 27, 2017

Addressing Human and Environmental Impacts of Nuclear Weapons in New Ban Treaty

Posted by Alice Osman and Molly Doggett

Bonnie Docherty, associate director for armed conflict and civilian protection at the clinic, delivering statement to countries negotiating nuclear weapon ban treaty at the UN in New York. Photo courtesy of ICAN.

Member states of the UN General Assembly are currently engaged in historic negotiations of a treaty to ban nuclear weapons. At this point, nuclear weapons are the only weapons of mass destruction not subject to a categorical prohibition in international law. A team from the International Human Rights Clinic, which is participating in the negotiations in New York, has joined the International Campaign to Abolish Nuclear Weapons (ICAN) in urging countries to adopt a strong treaty that is focused on preventing and remediating the catastrophic humanitarian consequences of nuclear weapon use and testing.

Prohibitions on the use, production, transfer, and stockpiling of nuclear weapons are necessary but insufficient components of the new treaty. In order to address the humanitarian impact of nuclear weapons effectively, states parties must also adopt positive obligations to provide assistance to victims in their territory and to remediate environmental contamination caused by nuclear weapon use and testing. In partnership with London-based NGO Article 36, our clinical team has released papers arguing for the inclusion of victim assistance and environmental remediation treaty provisions.

We have been encouraged to see that the draft text of the treaty contains provisions on victim assistance and environmental remediation. However, stronger and more comprehensive provisions are necessary to ensure that the needs of victims and the environment are effectively met. We are advocating for a clear obligation on affected states parties to remediate contaminated areas; currently environmental remediation measures are merely optional. In addition, the draft text does not require all affected states parties to assist victims in their territory, and thus is inconsistent with human rights law. We are calling for strong obligations on other states parties to help affected countries meet their positive obligations.

Many countries have agreed on the need for victim assistance and environmental remediation. The main point of debate has centered on the question of who should bear the responsibility for these obligations. Some delegations have suggested that states that use or test nuclear weapons (“user states”) should bear primary responsibility for providing assistance to victims and remediating the environment. By contrast, a number of other states, the International Committee of the Red Cross (ICRC), and ICAN have argued for placing primary responsibility for these activities on affected states.

We believe that responsibility for positive obligations must lie with affected states for both legal and practical reasons. First, victim assistance and environmental remediation obligations aim to ensure that the rights of people living in affected areas are protected and realized. It is a basic premise of international human rights law that each state is responsible for protecting and fulfilling the rights of individuals within its own territory. This allocation of responsibility also respects the sovereignty of affected states parties, who can set priorities and develop plans for victim assistance and environmental remediation within their territories.

Second, because of their proximity and access to victims and contaminated areas, affected states are in the best position to deliver aid to victims and to undertake environmental remediation. Moreover, there is a serious risk that placing the primary responsibility on user states, which are unlikely to join the treaty in the immediate future, will leave the needs of victims and the environment unaddressed.

Alice Osman, LLM ’17, and Molly Doggett, JD ’17, working hard at the nuclear weapon ban negotiations. Photo by Bonnie Docherty.

Finally, affected state responsibility for victim assistance and environmental remediation follows the precedent of other humanitarian disarmament treaties, such as the Convention on Cluster Munitions and the Mine Ban Treaty.

Some countries have expressed concerns that heavily affected states with limited resources would be unable to meet their positive obligations. But affected states should not face the task of implementation alone. The strong international cooperation and assistance provision for which we are advocating would require other countries party to the treaty (including user states) to contribute to victim assistance and environmental remediation efforts. This arrangement would ensure that the treaty does not place an undue burden on affected states, while guaranteeing that the needs of the victims are in fact met.

Only seven days of negotiations remain. We will continue to engage with delegates to ensure that states fully understand the importance of positive obligations and that international assistance can decrease the burden on affected states. We are hopeful that the next version of the text will address these issues and better meet the humanitarian goals of the convention.

The Clinic’s nuclear weapons team includes: Carina Bentata Gryting, JD ’18, Molly Doggett, JD ’17, Lan Mei, JD ’17, and Alice Osman, LLM ’17. The team was supervised by Bonnie Docherty, Associate Director for Armed Conflict and Civilian Protection, and Clinical Instructor Anna Crowe.

For a full discussion of victim assistance and environmental remediation obligations, see:

Victim Assistance in the Nuclear Weapon Ban Treaty: A Comprehensive and Detailed Approach
(June 2017, Briefing paper)

Environmental Remediation in the Nuclear Weapon Ban Treaty: A Comprehensive and Detailed Approach (June 2017, Briefing paper)

For a summary of our arguments and recommendations:

Key Points: Victim Assistance in the Nuclear Weapon Ban Treaty (June 2017, Working paper)

Key Points: Environmental Remediation in the Nuclear Weapon Ban Treaty (June 2017, Working paper)

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June 16, 2017

Neither Facially Legitimate Nor Bona Fide–Why the Very Text of the Travel Ban Shows It’s Unconstitutional

Posted by Gerald Neuman

This article was first published on Just Security.

As the litigation over the travel ban moves to the Supreme Court, the most important passage in the Fourth Circuit’s en banc opinion may be a tangential footnote finding “yet another marker” of illegitimate purpose in the text of the Executive Order. Both the first version of the Executive Order (of January 27) and the second version (of March 6) include language that any informed observer would recognize as evidence that the purpose of the travel ban is to gratify and further incite hostility against Muslims.

Advocates seeking to persuade doubting Justices should not be distracted by the voluminous debates about whether candidate Trump’s statements count against the constitutionality of President Trump’s actions. For Justices inclined to interpret narrowly the standard of review in immigration cases, the explicit statement of purpose in the first EO, and the residual markers in section 11 of the revised EO, should provide the starting point.

In the first EO, the final paragraph of section 1 explained the EO’s purpose as follows:

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

As the Fourth Circuit noted, “Numerous amici explain that invoking the specter of ‘honor killings’ is a well-known tactic for stigmatizing and demeaning Islam and painting this religion, and its men, as violent and barbaric.” The thinly coded incitement throughout this purpose paragraph is perhaps best explained in Aziz Huq’s amicus brief for Muslim Rights, Professional and Public Health Organizations.

Consistent with that goal, section 10(iii) of the first EO directed the Secretary of Homeland Security to collect and publish “information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals…” The mandate to publish enlists the department in nothing short of an ongoing campaign of anti-Muslim agitation.

The March 6 EO, which President Trump has now dismissed in a tweet as a “politically correct” version of his real policy, deletes the explanation of purpose, but retains the collection and dissemination of data on “types of acts of gender-based violence against women, including so-called ‘honor killings,’” in section 11(iii). That directive has no conceivable relation to the alleged national security purpose of the travel ban, and it continues to reveal the true underlying purpose of both orders.

This facial evidence of illegitimate purpose has particular salience because the dispute involves immigration policy, and the Justices are likely to view it through the lens of specialized precedents that have operated in relation to substantive immigration restrictions. In the 1970s, when the Supreme Court abandoned an earlier doctrine that had made constitutional challenges to criteria for grant or denial of admission nonjusticiable, it articulated instead a diluted test of constitutionality. Kleindienst v Mandel (1972) and Fiallo v Bell (1977) required the government to show that the restriction was based on a “facially legitimate and bona fide reason.” The time may have come to move beyond this standard, but the Justices might not – and need not — make the case of Trump’s EO the occasion to do so.

The opinion of Justices Kennedy and Alito, concurring in the judgment in Kerry v Din (2015), sheds light on the meaning of the standard, explaining that the government’s reason must be legitimate on its face and the government must be acting in good faith. If the challenger makes an affirmative showing of bad faith, the court may look to additional factual details that determine the constitutionality of the government action.

While both elements are required to uphold a government restriction, it may be safer for advocates to point to indications of unlawful purpose on the face of the orders before turning to extrinsic evidence of bad faith. The January 27 version of the order is so obviously the context of the March 6 version that both should be examined together, yet even viewing the March 6 EO in isolation, the incongruous attention to honor killings cries out for further inquiry.

The Fourth Circuit rightly asserted that “we cannot shut our eyes” when evidence “stares us in the face.” The religious animus that underlies the Executive Orders is already visible in the text, and the less formal statements merely provide confirmation. That point deserves more emphasis.


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June 1, 2017

The Clinic hires human rights advocates Yee Htun and Salma Waheedi as clinical instructors

We are thrilled to announce today that the Human Rights Program has hired Yee Htun and Salma Waheedi as clinical instructors in our International Human Rights Clinic.

For the past year, Yee and Salma have worked with us as clinical advocacy fellows, supervising projects on everything from land rights and telecommunications policies in Myanmar to torture in Iraq. They also share a strong focus on gender justice.

For Yee, that focus comes from a personal place. She’s spent most of her career as an attorney working on women’s rights, often with refugee and migrant communities. Yee herself was born in Myanmar and immigrated to Canada as a government-sponsored refugee.

“Women’s rights for me is not an abstract concept but a cause to which I have dedicated most of my life’s work to,” said Yee. “Whether it is coordinating and launching the first ever global campaign with Nobel Peace Laureates to stop sexual violence in conflict or offering legal counsel to women’s organizations seeking to enact a prevention of violence against women law, I have done it out of the belief that only when we give power to women and girls do we advance the human rights for all.”

Until recently, Yee was the Myanmar Program Director for Justice Trust, a Yangon-based international legal non-profit organization that provides support to communities. This year, she worked with clinical students to elevate the voices of women human rights advocates in the country; convene workshops on law reform in Myanmar with LGBTQI activists, human rights defenders, journalists, and lawyers; document land policy that discriminates against women; and examine the country’s new telecommunications law, which has had a chilling effect on free speech.

Salma came to the Clinic this year as a joint fellow with the Islamic Legal Studies Program: Law and Social Change, where she focused on women’s rights in Islamic legal systems and issues of legal reform and gender justice in Muslim family laws. This past year, she and her students worked with women’s rights lawyers and advocates across different Muslim countries, documenting legal obstacles to women’s equality, advocating for an end to discriminatory policies and practices, and engaging with the committee of the Convention on All Forms of Discrimination against Women (CEDAW) to foster deeper and more productive dialogues with the states.

In the Clinic, Salma also plans to focus on business and human rights concerns in the Middle East, particularly with respect to issues of corporate accountability and economic justice. Before entering the legal profession, Salma worked in her native country of Bahrain as Economic Planning and Development Director at Bahrain’s Economic Development Board, and later served as a consultant on economic policy and international development around the world.

As a lawyer, she continued to advocate for social and economic justice through community development and legal assistance programs in the United States and abroad.


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