Washington Lawyer - May 2020 - 28

FEATURE

The link between human rights
and environmental protection
has been at the forefront of
UN efforts now for a number
of years.

Mario López Garelli

DINAH SHELTON
George Washington University Law School

Daughters v. Chile, a child custody case involving LGBT rights. At the center
of the case was Chilean jurist Karen Atala, who was denied custody of her
three daughters because she affirmed her lesbian identity. The case went
to the Chilean Supreme Court, which held, in effect, that Atala could
either be a lesbian or a mother but not both.
Sáez, director of the Center for Human Rights and Humanitarian Law at
AU and a fellow in its International Legal Studies Program, says the case
was difficult to strategize because LGBT activism was not as strong across
the hemisphere when the case began, and because it involved family law
and entrenched idealizations of what a mother should be like.
"It was not only about sexual orientation, but it was also really a case
about children's rights and the right of children to have the parents that
they have and not the parents that society or the government wants
them to have," Sáez says.
With the help of a few of her law students, Sáez and co-counsel argued
the case before the Inter-American Court of Human Rights, which
decided that the Chilean court's decision contravened the equal protection safeguards of the American Convention on Human Rights. Sáez also
received help from U.S. lawyers in organizations such as the Cyrus R.
Vance Center for International Justice at the New York City Bar.
Sáez views international human rights law, which emerged most clearly
after World War II with the promulgation of the UN Universal Declaration of
Human Rights and subsequent international and regional treaties, as a bold
break from the past when international law was primarily used as a means
for nations to resolve their political, territorial, and economic disputes.
"What is very innovative of international human rights as a system of laws
is that it puts the individual at the level of the government with a neutral
observer to decide whether that government has violated his or her
rights," says Sáez.

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MAY 2020

Sáez grew up in Pinochet's Chile - "the daughter of a dictatorship" -
and that planted in her mind an early interest in human rights. She recalls
being inspired by Chilean human rights lawyers who were courageously
"submitting habeas corpus briefs on behalf of people arbitrarily detained
and who then disappeared." According to Sáez, human rights litigation is
intrinsic to this system of rights because it is "the space that has enabled
the leveling of the playing field for those marginalized groups in the political sphere."

RESTORATIVE JUSTICE EFFORTS
Another frontier for international human rights law is in the implementation of transitional justice, which has an iconic representation in South
Africa's Truth and Reconciliation Commission.
"After a period of unrest or conflict - in the case of South Africa, after
apartheid - a society needs to find a way to come to terms with its past,"
says Farbstein of Harvard Law. "There needs to be some kind of accountability, but that doesn't necessarily have to be the kind of accountability
that comes through courts."
Farbstein says open recounting of history, truth and reconciliation
hearings, and memorialization initiatives can also be indispensably helpful
for people who have been harmed to "feel that they have been acknowledged and made whole in some way," and for society to securely and
safely move forward.
Yet, there's always been an understanding that judicial remedies remain
an option. In 2008 Farbstein, with Harvard's International Human Rights
Clinic, joined an ongoing effort by U.S. and South African lawyers on
behalf of South African plaintiffs to hold U.S. corporations Ford and IBM
liable for helping to facilitate apartheid-era human rights violations. In re
South African Apartheid Litigation was filed under the Alien Tort Statute
granting non-U.S. citizens standing in U.S. courts for certain violations of

Washington Lawyer - May 2020

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