Latest Blog Entries

The IHR Clinic blog is written and edited by students and recent alums of the University of Chicago Law School. Now featured on Medium (formerly on the Huffington Post), the IHR Clinic blog examines contemporary issues in human rights, as well as social, political and cultural events viewed through the lens of human rights. 

Is the Glass Half Empty? The Murky Future of the Right to Water in International Law

by Carly Gibbs, University of Chicago Law School ‘18

Water is unquestionably the essential building block of life. We divert rivers to grow crops and provide electricity. We can’t last more than a few days without a drink of the stuff. But in an era of climate change, resource competition, and continued population growth, our access to freshwater as a species has never been more at risk. According to the United Nations Office of the High Commissioner for Human Rights, more than 884 million people lack access to improved sources of drinking water and a whopping 2.6 billion of us don’t have access to improved sanitation facilities as of 2015. But even the United States worries about having access to water — take California’s recent drought as an example. Protecting access to water is critical for every person.

But is there actually a right to protect? After all, there’s nothing about protecting a right to water in the United States Constitution or that of many other countries. International law, however, may provide the answer. In 2010, the United Nations General Assembly recognized the “right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.” As far as the UN is concerned, human rights treaties protect the right to water in a way that is “legally binding.” So while there is support for the claim that the right to water is protected by international law, many questions remain about the exact nature of the right, the available remedies, and the ways in which legal tools can be made to fit the complex reality of how people and states access water.

What treaties protect this right? Articles 11 and 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), ratified by many countries (though not by the United States), provides for the right to an adequate standard of living and enjoyment of the highest attainable standard of mental and physical health. Since access to water is crucial to developing agriculture, providing adequate sanitation, and otherwise leading a life in human dignity, some have argued that the UN Committee on Economics, Social, and Cultural Rights (CESCR) has read into the treaty an implied right to water. And what about the right to life as protected by the International Covenant on Civil and Political Rights (ICCPR)? While the treaty does not explicitly define the right to water, both the UN and the International Court of Justice have suggested that “violations of certain economic, social and cultural rights may amount to violations of the right to life.” And signatories of the ICCPR can’t derogate, or refuse to comply with the provision for the right to life. There’s a strong argument that international human rights law protects our right to water.

Recognizing that right matters more now than ever. Underground water resources in the form of freshwater aquifers are quietly vanishing. In the United States, farmers are drawing down water from the Ogallala Aquifer at an unsustainable rate despite being aware of the risk of depletion for more than six decades. Cities around the world are sinking as soil collapses into empty spaces left by depleted groundwater. Multiple years of drought in Syriawiped out many farmers’ livelihoods and may have helped spur the conflict that began in 2011. As population growth and climate change draw down freshwater resources, the value of recognizing a right to water becomes ever more important.

The problem gets even thornier when we realize that many of these are sharedwater resources in the form of rivers crossing from country to country or aquifers straddling international borders. Divvying up access to such water sources is already problematic. The mountain aquifer underneath the West Bank, for instance, is entirely controlled by Israel. Israel allocates about 80% of the flowing water to Israel and Israeli settlements and only 20% to Palestinians, sparking anger among Palestinians who claim the unequal share has crippled their agriculture. International law is a bit less clear on the issue of shared access to water sources. Some conventions on waterways, like the 2004 Berlin Conference and the 1997 Watercourses Convention, suggest that states are bound by customary international law to take measures to prevent significant harm from coming to neighbor states. Does that translate into a requirement that states refrain from drawing down on shared resources at an unsustainable rate? What do we do if one state takes more than its fair share of such a resource? And how do we determine what makes a “fair share” in the first place?

Even if we can point to a consensus about what should happen under international law, how do we make sure countries actually follow through on their promises? One way is for countries to bind themselves by signing treaties that proscribe certain consequences for violations. Countries may allow for the International Court of Justice to be responsible for settling water disputes based on international law and agree to abide by any orders. Another way is international pressure. Many countries care about their international reputation. If we create an international norm requiring respect and the equal allotment of shared resources, countries may bind themselves to avoid shame.

Declaring that water should be a human right is simple. The logistics of actually enforcing that right are much more complicated. But in an era of depleting water resources, we can’t just bury our heads in the sand. Countries need to step up to the plate and take an active role in safeguarding everyone’s access to water resources.

Pursuing Humane Prison Practices: Solitary Confinement Reform in the United States

by Megan Coggeshall, University of Chicago Law School Class of 2019

In the United States alone, there are an estimated 80,000 inmates held in solitary confinement. These people are kept alone in their cells for an average of 23 hours per day and have very little opportunity for human contact. The cells where inmates are isolated are small—on average 85 square feet—and contain a bed and desk, sometimes both made of concrete, as well as a metal toilet-sink combination. Most cells don’t separate the toilet from the rest of the cell, leaving inmates to eat within close proximity to it. Inmates generally spend the one hour outside their cell exercising alone in a small, sometimes caged-in area, that isn’t always outdoors. When these inmates are allowed visits, they are separated from their families by a partition, so they may go years without any meaningful human contact.

There isn’t a clear explanation for the starkness of conditions in American solitary confinement units. However, there is a higher public demand for punitive treatment of prisoners in the United States than in many other countries. This public sentiment is exacerbated by the proliferation of for-profit prisons that try to cut whichever services they can to reduce costs, and the predominant view in politics that “imprisonment is not an appropriate means of promoting correction and rehabilitation.”

Two things, however, are clear: time spent in solitary confinement is deeply harmful to both the mental and physical health of inmates, and one struggles to identify a real benefit of the practice that could justify the cost. Many inmates experience panic, anxiety, rage, depression, and hallucinations in response to solitary confinement. Inmates in solitary confinement also engage in disproportionately high rates of self-harm and suicide compared to the general prison population. Common physical harms of prolonged solitary confinement include headaches, hypertension, heart palpitations, digestive problems, and weight loss. These harmful effects can become permanent within 15 days, making reintegration into the general prison population and release from prison difficult. Studies suggest that time spent in solitary confinement increases recidivism, especially when prisoners are released into the community directly from solitary confinement.

According to international human rights standards, the American status quo isn’t compatible with basic principles of human dignity. Indeed, the Office of the UN High Commissioner for Human Rights recommends abolishing or strictly restricting the use of solitary confinement. Even without eliminating solitary confinement, there is much that the United States can do to ensure more sincere compliance with Article 10 of the International Covenant on Civil and Political Rights, which guarantees the right of all inmates to be treated with humanity and respect for their inherent dignity. Part of this requires recognition that, under some circumstances, the use of solitary confinement can be considered torture, or other cruel, inhuman, or degrading treatment or punishment (CIDT). Imprisonment—the loss of freedom—is itself a profound punishment, and prison conditions should not aggravate inmates’ suffering.

Mindful of these considerations, the United Nations created prison standards to guide countries’ prison policies and ensure they do not subject inmates to conditions amounting to torture or CIDT. The latest version of the Standard Minimum Rules for the Treatment of Prisoners was published in 2015 (known as the Mandela Rules). Many of the United States written policies for federal prisons conform to these guidelines. However, there are also many situations where the Mandela Rules go further to protect the health and well-being of inmates, particularly when considering the amount of discretion American prison officials have over prison operation in practice. For example, unlike in the United States, the Mandela Rules require that prisoners have access to at least one hour of outdoor exercise per day. The Rules also require more human contact by prohibiting limitations on family visits as a disciplinary sanction and allowing for social contact among prisoners. Additionally, and perhaps most importantly, the Mandela Rules limit the number of consecutive days a prisoner can be in solitary confinement. In fact, the UN considers indefinite solitary confinement and, in most cases, solitary confinement exceeding 15 continuous days, to be torture or CIDT due to the potentially permanent health effects described earlier.

This is not to say, however, that change is not possible in American prisons. In fact, the past few years have seen many reforms at the state and federal levels that are bringing the United States closer to compliance with the Mandela Rules and to ensuring humane treatment of inmates in solitary confinement.

For example, in 2016, then president Obama issued an executive order banning solitary confinement for juvenile offenders in the federal prison system. This executive action also prohibited solitary confinement as a disciplinary measure for prisoners who commit low-level infractions. When solitary confinement is used, the new policies implement a Department of Justice report which suggested increasing out of cell time to improve mental health, and discouraged placement in solitary confinement during the last 180 days of inmates’ terms to facilitate the transition back to the community. Additionally, the rules now limit solitary confinement as punishment for a first offense to 60 days. This is an improvement from the previously permitted 365 days, but still fails to conform to international standards both in duration and in purpose since international standards discourage the use of solitary confinement as punishment.

One recent reform at the state level is the implementation of “step-down” programs that allow inmates in solitary confinement to gain more out of cell time and access to programming as they move down security classifications through good behavior. Additional activities include sports equipment during recreation, in-cell televisions, or more phone calls and visits. Again, while this is an improvement, some of these earned privileges, like adequate visits, are considered the minimum under international human rights law. Additionally, many inmates in solitary confinement struggle with mental illnesses that may make effective participation in these programs difficult unless prison officials are trained to identify symptoms of mental illness.

Lawsuits alleging violations of the Eighth Amendment’s prohibition on cruel and unusual punishment have also led to reforms at the state level. For example, because of a settlement in Delaware, inmates who need mental health services now have access to them. Delaware inmates now must have their mental health considered prior to placement in solitary confinement, they must spend at least 17.5 hours per week out of their cells, and prisons must create individualized mental health treatment plans.

Colorado has become a leader among the states in voluntarily setting humane solitary confinement standards. In 2013, the state prohibited the use of prolonged solitary confinement for seriously mentally ill prisoners. It also recently passed a law banning the use of solitary confinement for more than 15 consecutive days for all inmates, becoming the only state to meet international standards on duration of solitary confinement. Colorado’s changes were inspired by the Head of Corrections’ participation in drafting the Mandela Rules. He became convinced that prolonged solitary confinement is unethical since it manufactures and aggravates mental illnesses. After implementing these reforms and others, Colorado’s solitary confinement population decreased from 1,500 in 2011 to 18 in 2017.

These reforms are a step in the right direction toward ensuring more humane conditions of solitary confinement in the United States. However, since the reforms are largely proceeding state-by-state, the country has a patchwork of laws that provide prisoners with varying levels of protection. For example, many states still allow solitary confinement for people with serious mental illnesses and minors, or permit indefinite solitary confinement. To ensure that every prisoner is treated with dignity and respect, the United States must continue to reform its solitary confinement practices. Turning to international human rights standards for guidance, as Colorado has done, is a good place to start.

For more information about efforts to reform solitary confinement practices in the United States see: the ACLU solitary confinement projectSolitary Watch, the Vera Institute of Justice, and Amnesty International.

Human Rights as a Template for a Better Future

by Alli Hugi, Class of 2018

Working with the International Human Rights Clinic, I’ve had the opportunity to discuss pressing human rights issues with people from Pakistan and Myanmar to Mexico and the United States. Some similarities connect these conversations. These range from shared guiding principles (in the end, everyone is trying to make the world better for their children) to explanations that distract from the real issues (across cultural borders, people are quick to blame society’s woes on the sins of the new generation).

These conversations have been interesting for many reasons but one has stood out: how they’ve revealed an important disagreement over what it means for something to be a “human right” and the proper approaches for guaranteeing a right.

As part of our clinic work, my peers and I discussed the United Nations guidance that militates against ever using mediation in domestic abuse cases with Pakistanis who stressed that such an approach was simply incompatible with their cultural norms, which emphasize community-based, mediated solutions. During interviews in Yangon, we talked about the importance of compensation for seized land to allow individuals to gain ground economically. Some locals, however, informed us that at least some people in Myanmar were likely to donate any money received to their local pagoda, rather than invest it in new property. While human rights standards counseled against mediation in the domestic violence context and favored monetary compensation for government land seizures, our colleagues did not view these as appropriate steps to take to guarantee the underlying rights.    

The heated ongoing debate on healthcare in the US raises even more fundamental questions about what we mean by labeling something a “human right.” The debate is marked by fundamental disagreement over whether or not healthcare is a human right.  

This debate demonstrates how, even within the US, it is incredibly hard to reach consensus on what we mean by a “human right” and, even then, what is the best approach to fulfilling that right. 

And that probably should not come as a surprise. After all, human rights can be as fundamental as the prohibition of slavery and as contemporary as the right to internet access. They are referred to as universal and inviolable—and yet are widely and egregiously violated. And it often seems that other countries respond to these violations with little more than muted criticism. The shamefully lethargic response to the ongoing open-air slave trade in Libya has highlighted this very tension.

So why laud something as a “human right” if the global response to its violation is too often angry inaction? How is designating something a “human right” ultimately helpful or useful?

To answer this question, we have to think about what human rights add to the other categories of rights invoked in popular discourse. In particular, constitutional rights are codified principles considered central to the values of a given country. Civil and statutory rights (and, to some extent, constitutional rights as well) build on those foundations to enumerate specific legal rights that generate from broad principles.

One accepted way to understand the category of human rights is that it transcends these other types of rights—all cabined by national borders—and describes those rights innate to mankind regardless of nationality. Historically, however, the concept of natural rights, crafted by luminaries such as John Locke, has filled this philosophical niche. Natural rights too are a set of basic rights considered essential to us as human beings; rights which cannot be given to us or taken from us by governments. The Universal Declaration of Human Rights, which is seen as the foundational text of human rights, is often understood as a codification of such natural rights.

Critics of human rights as a category sometimes point to this conflation with natural rights to accuse human rights of redundancy. The obvious counterargument is that human rights took natural rights a step further: the codification of human rights into treaties and other international instruments makes these rights legally enforceable, rather than purely a tool for discourse.

But the project of human rights is about more than codifying natural rights. Recent UN guidance under the Universal Declaration of Human Rights states that all people have the right to internet access. Locke certainly wouldn’t accept that as one of his natural rights.

Defining human rights as legally enforceable natural rights is imperfect for another reason. Human rights are only enforceable once they have been incorporated into countries’ domestic legal systems. In other words, human rights are by nature not enforceable rights until they become constitutional, civil, or statutory rights. If we ground the definition of human rights in their enforceability, then they appear to provide nothing new; natural rights provide a philosophical framework for universal rights that can be translated into domestically enforceable ones. Does this render human rights a superfluous middleman category?

As a participant in the International Human Rights Clinic for the last two years, I do not think human rights are redundant or unhelpful. But I do think that we are not often explicit enough about why that is.

Human rights insert a specific—and worthy—set of values to the world of rights: an aspiration to comprehensiveness. They start with the basic entitlements enshrined in the concept of natural rights, and move beyond that. By not expecting immediate compliance with all rights, international human rights laws need not compromise on which rights to protect to the same extent as domestic legislation. Human rights can be dynamic and responsive to changes in the world—by adopting new rights that deal with the internet, cell phones, and climate change—without demanding that society immediately figure out how to absolutely protect those rights.

The category of human rights provides a blueprint for a better world—with some breathing room.

In other words, in a Venn diagram, human rights intend to fully encompass the other categories of rights (basic, immediately realized rights such as the prohibition on torture)—and then intentionally expand beyond that. They push the conversation. They aim to influence discourse and norms. They encourage debate over whether healthcare in the US is a right, as well as prompting conversations about ways to fully effectuate rights like the ones we had with people in Pakistan and Myanmar.

This difference is embodied in the principle of progressive realization, most notably invoked in the International Covenant on Economic, Social and Cultural Rights. Under progressive realization, a signatory to a treaty is obligated not to protect a right, but to take steps to protect it. The principle explicitly recognizes that some human rights cannot be fulfilled right now. Minimal progress is required, but a country will get an A for effort.

While most treaties do not explicitly recognize this principle, it is implicit in many discussions about some human rights. Why else let Saudi Arabia sign on to the Convention on the Elimination of All Forms of Discrimination Against Women when women in the country can do little without the permission of their male guardians? Or allow Nigeria, which has recently increased its use of torture, and the US for that matter, which has consistently refused recourse to victims of torture at the hands of the US government, to participate in the Convention Against Torture? And surely no country has provided all of its citizens with internet access.

I see these apparent hypocrisies as, at base, driven by a different understanding of what a “right” means in the human rights context. It is not that the member states of the UN do not realize these countries are abusing the human rights they commit to protect in these treaties. It is not that they do not care.

It is that the project of human rights is not merely about creating an enforceable floor for rights. It is about trying to look at what is right in the world, what is working, and saying that, in the future, it would be best for everyone to be able to live like that. Under this understanding, even when a country is failing to fully comply right now, welcoming that country into the project of human rights has value. It is an aspirational move grounded in the belief that the discourse surrounding human rights will move that country towards compliance, just as it has progressed the global conversation during the past century over what humans can and should expect in their future.