Foreign Practice Sheds Light in Blind Case

Diane Marie Amann — Sat, 24 May 2008 10:03:00 GMT

Was struck by something in this week's decision by the U.S. Court of Appeals for the District of Columbia Circuit in The American Council of the Blind v. Paulson (judgment available here).

It was not the court's 2-1 holding that, by refusing to design and issue paper money so that visually impaired persons can readily distinguish among denominations, the U.S. Treasury Department violated this statute:

No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency. ...

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

What was striking, rather, was that the court based its conclusion that Treasury had not made requisite accommodations on the fact that other countries had made such accommodations. "Of the 171 authorities issuing currency," Judge Judith W. Rogers wrote (Page 8), referring to a 1995 report, "only the United States prints bills that are identical in size and color in all denominations." She noted that Canada adopted accommodations in 1995, adding that such accommodations are part of the euro currency adopted in 2002. Judge A. Raymond Randolph dissented on the ground that the interlocutory decision was premature. His discussion also accepted foreign examples as relevant points of comparison—as did media accounts of the decision (here and here).

The case seems a classic example of how consultation of foreign practice may aid interpretation of U.S. law—the "comparable questions" example about which I've written here (Pages 1340-41) and here (Pages 605-06). Given objections to foreign consultation in other contexts, the fact that judicial use of a foreign yardstick in this case went unremarked is itself worthy of remark.

(Cross-posted at IntLawGrrls blog.)

Shame Games

Diane Marie Amann — Mon, 17 Mar 2008 15:18:00 GMT

For three decades now the U.S. Department of State each year has issued a report on the human rights practices of other countries throughout the world. It does so to comply with the Foreign Assistance Act of 1961, §§ 116(d), 502B(b); that is, at the behest of Congress.

Last week State issued its 2007 Country Reports, assessing the promotion of human rights, or the lack thereof. The reports range from A to Z—Afghanistan to Zimbabwe, with 194 nation-states in between.

"Countries in which power was concentrated in the hands of unaccountable rulers remained the world’s most systematic human rights violators," State's introduction declared. Succeeding paragraphs then cited North Korea, Burma/Myanmar, Iran, Syria, Cuba, Belarus, Uzbekistan, Eritrea, and Sudan as the worst-of-the-worst.

Duly raising eyebrows: the absence of China from this list.

Far from complimentary, the introduction's account of China's behavior included mention of interference with religious freedom and the imprisonment of activists, writers, and lawyers. Still, China was not listed among the worst-of-the-worst, but rather immediately after reference to "authoritarian countries that are undergoing economic reform" and "have experienced rapid social change but have not undertaken democratic political reform and continue to deny their citizens basic human rights and fundamental freedoms."

Among those criticizing this human-rights-upgrade-of-sorts was Sophie Richardson, Asia Advocacy Director, Human Rights Watch. According to Agence France-Presse, she urged that the Country Reports ought to be complete and sufficiently critical of the full spectrum of human rights violations, and adding that

if this decision 'signifiies that the State Department is paying less attention to chronic violations of human rights in China, yes, that is a problem.'

Also a problem: what some might surmise are the reasons for the differential treatment.

The worst-of-the-worst list includes those members of the international community with which the United States has its most tense relations. China has a different status. (See posts here and here and here.) It's a huge trading partner and a potential hegemon in its own region and those as farflung as Africa.

Indeed, unlike the United States or Europe, for that matter, China's policy is not to tie human-rights-compliance strings to the considerable foreign aid it hands out; what's more, China lashes out at the United States every year that it's called on America's human-rights-compliance carpet. This year in particular, it's host to the Summer Olympic Games, an Olympics that U.S. President George W. Bush has pledged to attend.

A realist understands that U.S. officials might feel a tension between Congress' human rights command and China's unique status. And yet, with yesterday's post from IntLawGrrl Naomi Norberg, and with headlines like this one in Sunday's Times of London—"Fears of another Tienanmen as Tibet explodes in hatred"—even a realist has cause to question the choice that the United States appears to have made.

(cross-posted at IntLawGrrls blog.)

Convictions : United States

Foreign Practice Sheds Light in Blind Case

Shame Games