Rights Wire

The Human Rights Blog of the Leitner Center for International Law and Justice


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Russia’s legislature, prosecutors tighten the screws on online expression

By Thomas Callahan

With a Constitution that codifies restrictions on certain types of expression, and a storied history of targeting alternative political voices, it is unsurprising that Russia is currently in the midst of a campaign to silence inconvenient speech on the Internet.

This summer, I returned to Moscow to conduct legal research and reporting with a large international human rights organization (which I will not name due to the organization’s security concerns) as a Leitner Center Summer Fellow. I was tasked with researching and writing a report documenting this recent free speech crackdown in Russian legislation. This included reading Russian laws, tracking down copies of bills, and interviewing targeted activists across the country.

INCREASING SPEECH RESTRICTIONS

Having worked in Russia for years, and having been here when members of Pussy Riot were thrown in remote prisons on “extremist hooliganism” charges, I find no limits on freedom of expression really shocking anymore. But practically speaking, the sheer number of recent legislative restrictions to online speech means that human rights and free speech advocates in Russia are increasingly unsure about what could bankrupt an organization via administrative fine, or land people in jail. Although some of these restrictions identify concepts like “separatism” and “extremism” as general considerations, in practice, prosecutors increasingly conflate criticism of Kremlin policy in Ukraine, for example, with “threats to the territorial integrity” of the Russian Federation. These laws can also allow Facebook invitations to civil society events to be taken as incitement to rioting. Application of these laws is used mostly to harass political activists.

With many more such legislative proposals in the pipeline, it’s no wonder the old Soviet saying about living on top of a volcano – essentially, waiting for a governmental or societal eruption at any moment – has come back into vogue. The situation is so dire that since March 2014, Russia has been included in a group of only 19 governments in the world to be classified as “Enemies of the Internet” by Reporters Without Borders.

And while the main threat to freedom of expression comes from censorship laws, Russia’s legislature has been hard at work creating various other kinds of new rules for the Internet. These include – but are definitely not limited to – a new provision passed in May 2014 to Russia’s Law On Information that regulates blogs. Dubbed the “Bloggers Law,” it subjects any blog that gets 3,000 or more unique hits in a 24-hour period to many of the same federal regulations as national media conglomerates. The United Nations Human Rights Committee called this law both “vague” and “burdensome.” Indeed, it not only increases legal scrutiny, but also liability for charges like “incitement to rioting,” which is how prosecutors often refer to invitations to “unsanctioned” demonstrations. For these “mass media bloggers,” some types of speech carry a fine totaling 500,000 rubles – about 60 percent of the average annual income in Russia. In other cases, liability may reach one million rubles. With about 65 percent of Russians using the Internet regularly, these laws have real implications on the ability to access information.

Meanwhile, Russia’s prosecutors have been relying on the same, troubling old “extremism” sections of the Criminal Code to harass activists for what they say, or even share, online. In a country compliance review for the International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee warned that the “extremism” sections of Russian criminal law could be used “silence individuals critical of the State party’s foreign policy[.]” One of the higher-profile cases this summer centered on exactly that fact set. Recent use of one “anti-extremism” provision that threatens speech online has included the conflation of harmless criticism of Russia’s annexation of Crimea with a “threat to the territorial integrity” of the Russian Federation.

It is generally accepted that governments can restrict certain types of harmful speech, such as hate speech. But Russia’s restrictions on online expression are blatantly used to silence unorthodox political voices, which is illegal under international human rights law. While case-by-case restrictions on free speech in specific instances, such as tangible threats to public or individual safety, could be legal, such a process is rarely used in Russia.

CONTROLLING THE FLOW OF INFORMATION

Aside from restricting individual voices online, Russia is creating new controls on how online information flows and is accessed. Since November 2012, Roskomnadzor (the federal media and telecom oversight agency) has maintained a list of banned websites. In its March 2015 review of Russia’s compliance with the ICCPR, the U.N. Human Rights Committee noted that the Internet black list is part of “a number of developments that create separately and jointly a substantial chilling effect on freedom of speech and expression of dissenting political opinions.”

Although a searchable database allows users to find out whether a single website has been blocked, the full list is not made public. We do know that, as of this summer, about 30,000 websites are blocked within Russia. Many of these are child pornography sites and online narcotics markets. However, many of them are also websites linked to prominent political activists. With the recent passage of a law restricting the activities of “undesirable organizations,” many international human rights groups could end up blacklisted online in Russia as well. No court order is necessary; if an official in one of a few federal agencies – or a court finds that a website has published some sort of “banned” information – Roskomnadzor will order Internet Service Providers to block access to it within Russia. Prosecutors and other federal authorities will generally point to information that would be subjected to Russia’s notoriously problematic “anti-extremism” laws when attempting to block a website.

One of many examples of unjustified interference with free speech is the Prosecutor General’s targeting this June of OZPP, a consumer protection group, after it published a legal memo advising Russian citizens against traveling to Crimea, which it called an “occupied territory.” In Russia, such an opinion may constitute a “threat to territorial integrity,” which is why the Prosecutor ordered Roskomnadzor to block parts of the organization’s website, and called on federal investigators to begin an inquiry under an “extremist” provision of the Criminal Code. OZPP could be tried under the “separatism” provision, which carries a five-year prison term. In an obvious due process violation, OZPP only learned that a case against it was already underway days later, after clients reported that they were having trouble getting its website to load.

Regulation of well-trafficked websites remains in flux, as legislative discussion opened in June on a set of amendments to the Law On Mass Media. Proposed changes would introduce the concept of “online publisher” to the law, and this is not a good thing. The bill is vague, but it would appear to subject any host website to mass media regulations if any single one of its pages gets three thousand or more unique visitors in one day. News aggregator websites, the websites of political movements and message boards are some of the main targets of this proposal.

WHAT SHOULD RUSSIA DO?

There is no place for such broad and obvious restrictions to political speech in the year 2015, especially in a country like Russia, whose actions at home and abroad have the power to sway a whole cabal of governments in its large sphere of influence. It is also not too attenuated from these developments to note Russian prosecutors’ congenital conflation of unsanctioned civil events with “mass rioting.” This peculiarity of Russian law enforcement’s relationship with society is a metaphor for the general lack of case-by-case investigation and due process broadly in the Russian legal system. Russia must enter the twenty-first century on these issues in addition to the due process questions regarding speech specifically.

Moreover, Russia is party to both the main international regional treaties that codify freedom of expression: the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights. Russia has an obligation to conduct case-by-case examinations of restrictions to speech, and not to create functionally blanket bans on some political questions. These types of restrictions are illegal no matter what. Under the European Convention, if a State party restricts expression, it must establish and disclose a purpose that relies on a security or other concerns commensurate with the degree of censorship. Russia fails to do this all too often, a practice that must end.

Furthermore, Article 29 of the Russian Constitution absolutely bars censorship (though this is incongruous with other sections of the constitution). Article 17 of the country’s Constitution also establishes international treaty obligations as an extrafederal basis for domestic legislative and jurisprudential practice. Under its own laws, Russia must bring its legislative and law enforcement practices into compliance with the international obligations it chose and claims to recognize.

Thomas Callahan was a 2015 Leitner Center Summer Fellow. He interned with an international human rights organization in Russia.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo courtesy of Thomas Callahan.


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A victims-based approach in the Inter-American human rights system

By Hannah Jane Ahern

This summer, I interned at the Inter-American Court of Human Rights in San José, Costa Rica. I had a chance to observe the court in session, conduct legal research, and work on publications, press releases and speeches. My work this summer was my first exposure to legal work in international human rights, and it was also a crash course in the Inter-American System for human rights protection. I found the public hearings at the Court, and the Court’s system for ordering and monitoring reparations, to be especially compelling and effective means of promoting human rights.

BACKGROUND

The Inter-American Court of Human Rights is one of two bodies created by the American Convention on Human Rights to ensure the promotion and protection of human rights in the region (the other is the Inter-American Commission on Human Rights, based in Washington, DC). The American Convention is an international treaty outlining the rights and freedoms that must be respected by States; it was adopted by the Organization of American States (OAS) in 1969 and went into effect in 1979. The Court hears cases of human rights violations committed by member states that have ratified the Convention and accepted the contentious jurisdiction of the Court. Those countries are Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Surinam and Uruguay.

The Court is made up of seven judges, all of whom are citizens of member States of the OAS, and serve a term of six years. States submit a list of nominees to the Secretary General, and each judge is elected by representatives of the member states. They can each be reelected for a second term. The Court convenes for four regular sessions a year at the headquarters in Costa Rica, and two special sessions in other countries. During the rest of the year while the Court is not in session, there is a permanent Secretariat in San José made up of lawyers, interns and other who work on investigations, resolutions and sentences.

PUBLIC HEARINGS AT THE 109th REGULAR SESSION

There were three public hearings during the 109th session that I was present for, two for contentious cases and one related to an advisory opinion. I attended the entire hearing for the first case, Chinchilla Sandoval y otros Vs. Guatemala, which involved the violation of multiple human rights of a diabetic woman with disabilities in a Guatemalan women’s prison. Among the rights violations alleged were the right to life, the right to personal integrity, the right to a fair trial and the right to judicial protection. Due to both acts and omissions on the part of the State, the victim received grossly inadequate medical care and suffered horrible pain and abuses while a prisoner. Her diabetes worsened because of lack of adequate treatment, resulting in the amputation of her leg. On the day she was scheduled to be released from prison, she was found dead, her daughter said.

During the first part of the hearing, we heard over an hour of testimony from the victim’s daughter, detailing the steady decline in health and worsening of conditions that her mother suffered over the course of nearly a decade in prison. She also discussed the mysterious circumstances surrounding her death. It was heartbreaking to hear the allegations of what this woman suffered, and to know that this was a single case among thousands of similar ones of prisoners being denied healthcare and access to justice around the world. At the same time, it was such a powerful experience to be in that courtroom, everyone listening with rapt attention, hearing the victim’s story as told by her family.

After the victim’s daughter testified, we heard from an expert witness who was a lawyer and expert in disability rights. The representatives for Guatemala gave him a particularly hard time, challenging his ability to discuss certain things. For example, they argued that he was not qualified to discuss the medical treatment received because he wasn’t a doctor. The Court rejected this argument completely, saying that medical treatment for a person with disabilities who is in the custody of the State was relevant, and they allowed him to continue. It was gripping and moving to hear from the expert witness about the legal obligations of the State in the case of people with disabilities and, in particular, those deprived of their liberty while imprisoned. While the basic facts of the case were related by the victim’s daughter, the expert witness put them in the context of the State’s internal and international legal obligations.

I also deeply appreciated the focus that the expert witness, and the Court as a whole, put on the intersectional nature of the discrimination suffered by the victim as a woman with disabilities, who is imprisoned. More judicial bodies should appreciate and emphasize the fact that so many abuses stem from multiple and overlapping forms of discrimination. Having had the opportunity to read a great deal of the Court’s jurisprudence, in addition to observing the public hearings, I have been consistently struck by the astute recognition on the part of the Court of this kind of intersectionality and the consequences that it has for so many victims of human rights violations.

REPARATIONS

After the hearings are completed, cases enter the merits phase, the stage at which Chinchilla Sandoval y otros Vs. Guatemala is at now. At this stage of the judicial process, the judges deliberate on the merits of the case, weighing the evidence of each alleged violation. The final judgment includes their decision regarding every violation, as well as an order to make reparations. The reparations ordered by the Court are intended to make the victims whole, or as close to whole as possible, as well as ensure that the violations that occurred are not repeated. Reparations always include some kind of public and permanent commemoration of the victims, as well as publication of the judgment in national newspapers or other media that will get widespread attention. They also often include orders for States to amend their internal legislation so that the violations that occurred are formally criminalized within their internal legal systems. Following the judgment and order of reparations, the Court continues to monitor compliance with the reparations until all of the measures ordered have been completed. It is a radical and comprehensive way of ensuring that States conform to the standards of the American Convention, and providing justice to victims and their families.

Working at the Court, witnessing the victims’ stories being told in a legal, international and public forum, and having the opportunity to see through some kind of justice in the form of reparations decided by the Court is the most fulfilling experience I have ever had. We hear about human rights abuses across the world all of the time in the newspaper and on the news; however, it is a completely different experience to see and hear actual victims telling their story in their own words, having a judicial body give credence to what they are saying, and working to figure out a way to right some of the horrific wrongs they have suffered.

Hannah Jane Ahern was a 2015 Leitner Center Summer Fellow. She interned at the Inter-American Court of Human Rights.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit: Eli NW/Creative Commons


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The case for corporate social responsibility (CSR): a report back from the Leitner Center’s CSR Leadership Course

By Takahisa Juba

Situated in the one of the largest business districts in the U.S.—Midtown Manhattan—the Leitner Center for International Law and Justice at Fordham Law School hosted their second annual Corporate Social Responsibility Leadership Course on June 11-12, 2015. The large number of participants and their diversity denotes the growing importance of corporate social responsibility (CSR) and demand for education on the topic. As the world continues to become more interdependent and integrated because of globalization, businesses have been the primary driver of this inevitable trend as they seek new markets and resources. Acknowledging their vital role in development and poverty alleviation, businesses’ growing power and presence have also raised concerns about the negative impact they may have on society. Since the 1960s, CSR has garnered attention and spurred action, evolving from a public relations catch phrase to an issue that is of growing focus and legitimate concern to companies both from a business and legal perspective. With panelists ranging from business executives to general counsels, attorneys, accountants, financiers, academics and a UN representative, the CSR Leadership Course explored some of the most pressing questions and issues in the field.

GROWING IMPORTANCE AND ROLE OF CSR

Despite the importance of CSR, companies face challenges in implementing CSR initiatives both internally and externally because the financial impact of CSR may not be immediately evident or quantifiable. However, investors are growing more concerned with a company’s CSR performance and this trend will likely continue. Moreover, the Rana Plaza building collapse in Bangladesh, which killed over a thousand garment workers, was a game changer. Businesses can no longer ignore such risks, and integrating CSR into their business approach is one way for companies to minimize reputational risk and conform to millenials’ demands for companies to become more socially responsible.

A key part of practicing CSR is making ethical commitments and choices, such as pledging to end human trafficking in a company’s supply chain, which can be a lengthy and conflicted process. What seems to distinguish ethical companies is the atmosphere established from the top down. However, the economic realities of slowing revenue can put pressure on maintaining ethical commitments. In many cases ethical choices may give way to economic considerations. For example, the nature of multinationals (companies based in one home country but manufacturing in a range of countries along their supply chain, and selling in many more) may pose ethical problems as a company may choose to abide by regulations that establish high ethical standards in one country but lower their standards in another as the regulations are less restrictive allowing for less ethical or more predatory practices.

AFFECTING SOCIAL CHANGE

Businesses, undoubtedly, influence a broad variety of social issues. How they impact these issues depends on the company’s policies and priorities. With regard to the environment, some financial institutions have adopted project financing guidelines to regulate environmental and social impacts of financed projects such as the Equator Principles, which establish requirements for environmental and social assessment, performance and reporting. Companies can hold themselves accountable for their environmental impact by voluntarily reporting their impact through the Global Reporting Initiative or the Carbon Disclosure Project. In general, however, sustainability reporting is still evolving as stakeholders determine what issues are important and how impacts are measured, the panel on sustainability reporting pointed out.

Companies also play a major role in women’s empowerment. In general, women have been underrepresented in positions of power in companies and certain industries like tech. But innovative initiatives, like scholarships, training programs, and flexible guidelines, can provide a more supportive environment for women in the workplace.

In contrast to the private initiatives addressing environment and women’s empowerment, the role of legislation has been instrumental in combating human trafficking. U.S. Federal regulations prohibit any contracts with the federal government that involve human trafficking. In addition, state laws such as the California Transparency in Supply Chains Act requires disclosure of efforts by companies to eradicate human trafficking from their supply chain.

LEGAL OBLIGATIONS

Domestic laws and regulations can play an important role in holding businesses accountable and ensuring that their businesses are conducted in a sustainable manner. However, international law does not directly regulate private businesses. The traditional view is that international law governs states and they have the responsibility to enforce the law against companies and individuals. It is uncertain if binding international law directly regulating multinational corporations will be adopted in the near future. However, there are “soft laws” that apply to businesses internationally such as the UN Guiding Principles on Business and Human Rights.

Under the Guiding Principles, states have the duty to protect human rights and businesses have the responsibility to respect human rights while both have the responsibility to provide remedies for negative human rights impacts. This can be complex and daunting for certain businesses. For example, a law firm’s responsibility to protect human rights can conflict with an individual’s right to representation, even those who may be guilty of a crime or human rights violation. In those cases, the lawyer or law firm must make a decision, but a human rights policy for the firm may be a good starting point to establish a proper decision making framework. In another instance, those who perform human rights due diligence for a private company—a responsibility under the Guiding Principles—may also face a difficult decision in helping a company that has committed human rights violations. The question that some may ask is if engagement with companies that have committed abuses could improve human rights conditions in the country and company’s operations.

LOOKING FORWARD

The trend toward an increasing focus on CSR is a welcome development, especially for human rights. The Leitner Center’s course emphasized the important role and impact of CSR to business and society. It not only identified challenges in implementing CSR but importantly, how to address them through real life examples, case studies and legal expertise. There is no one model for CSR, but there is no doubt that businesses must strive to conduct themselves in a socially responsible manner.

Takahisa Juba is a Leitner Center and Fordham Law School alumnus. He attended the 2015 Corporate Social Responsibility Leadership Course.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.