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Human and labor rights violations in the global seafood supply chain and the rise of third party certification schemes (part 1 of 2)

By Sreelatha Babu, Denis Nolasco and E. Constantinos Pappas

While browsing the seafood aisle of the local supermarket, few consumers think about the course that products take before they arrive on the shelf. Even fewer consumers imagine that the seafood that ends up on their plate might have come from exploited, abused or even enslaved workers half a world away. Nonetheless, this exact scenario is playing out on fishing vessels and in factories, hatcheries and fisheries throughout the seafood industry in developing countries such as Thailand. Often times, these abuses occur at the acquiescence of or with the involvement of state and local authorities. Worse still, this seafood ends up in supply chains used by some of the most prominent brands in the world, leaving consumers and investors in developed economies as unwitting bankrollers of egregious labor and human rights violations.

Despite the existence of international labor rights standards, many national governments either fail to enact laws that adequately protect workers or fail to enforce existing laws that do. In the face of this impunity and lack of action, there are a number of approaches that retailers can take to prevent or mitigate harmful labor practices that take place within their supply chains, including using their leverage to work with governments to improve regulation and enforcement. One of the approaches taken by multinational companies has been to adopt and comply with third party certification schemes. These certification schemes help companies to identify and remove such violations from within their supply chains while signaling to consumers that the product they are purchasing is “sustainable.” Unfortunately, because of a litany of issues ranging from lax standards and auditing requirements to business influence over the formulation of the standards themselves, these certification schemes are generally insufficient in preventing the worst kinds of human rights abuses, as evidenced by their continued practice.

This two-part series will explore some of the human rights violations plaguing global supply chains and the role that third party certification schemes can play in helping prevent or curb these abuses. The first part of this series will discuss human rights violations in global supply chains, with the Thai seafood industry as a specific example of how trafficking of undocumented migrants, forced labor, debt bondage and child labor can be used to produce items sold all over the world. It will also examine how voluntary third party certification schemes have developed to help companies understand and address human rights violations within their supply chains. The second part of this article series will delve into the major criticisms of these third party certification schemes and propose some reforms to strengthen their efficacy in preventing human rights and labor violations. This research and the reforms that will be proposed in the second article stem from the work of the Spring 2016 Corporate Social Responsibility Clinic in partnership with the International Labor Rights Forum.

HUMAN RIGHTS AND LABOR VIOLATIONS IN THE THAI SEAFOOD INDUSTRY

The globalization of supply chains has caused competition among developing countries to attract investment. In 2007, multinational corporations contributed $3 trillion in foreign direct investment. As a result, national labor laws often fall short of internationally recognized standards, providing little protection to workers. Further, the enforcement of labor laws is often weak, sometimes as a result of political unwillingness or due to corruption or bribery. In the case of Thailand, a combination of these factors has resulted in reports of trafficking of undocumented migrants, forced labor, debt bondage and child labor throughout its seafood industry.

In 2009, the U.S. imported 552,206 metric tons of shrimp, which totaled $3.8 billion, with Thailand making up 35 percent of that supply. In 2015, shrimp imported to the U.S. increased to 587,185 metric tons of shrimp worth $5.3 billion, out of which 11.4 percent was from Thailand. These imports are destined for U.S. food stores such as Whole Foods, Costco and Wal-Mart, as well as prominent restaurants, including Red Lobster and Olive Garden. In fact, an Associated Press investigation found 150 stores across the U.S. selling shrimp associated with human and labor rights violations.

The Thai seafood industry is currently thriving, with the most recent year of exports bringing in approximately $7 billion dollars in revenue. This growth is primarily due to the industry’s ability to maintain low production and processing costs, often through the employment of undocumented migrant workers. In 2011, the International Labor Organization (ILO) estimated that approximately 193,600 migrants from Burma, Cambodia and Laos worked in fishing and fish processing factories, toiling in inhumane working conditions. In the case of shrimp, currently 80 percent of the 700,000 shrimp workers are migrants. Given that many unregistered migrants workers live in the shadows out of fear of deportation, it is difficult to accurately assess the amount of undocumented workers in this industry. However, in Samut Sakhon, the most prominent province in shrimp processing facilities, only 70,000 of approximately 400,000 migrant workers were legally registered, implying a large rate of undocumented migrants in this industry as well.

Thailand’s harsh penal laws for undocumented migrant workers make them especially vulnerable to abuse by their employers due to fear of being reported to authorities, being deported or even facing imprisonment for terms upwards of five years. This gives employers substantial leverage, often culminating in conditions of forced labor. In fact, government officials themselves are often directly responsible for the precarious situation of undocumented migrants. A 2015 U.S. State Department report found that officials “on both sides of land borders accept payment from smugglers involved in the movement of migrants between Thailand and some neighboring countries,” with these migrants often becoming the victim of human rights violations.

In addition to the fear of deportation, most workers are hired in their countries of origin (including Burma, Cambodia and Laos) through labor brokers that charge a recruitment fee ranging in the hundreds to thousands of Baht (between $270 and $570). The workers arrive believing they will pay back their fee with the money they make from working. However, they are often paid meager wages. Laborers in Thai shrimp processing factories peel 175 pounds of shrimp for just $4 a day, far too little to cover their recruitment fee and additional debts charged by their employers for food and equipment. Before long, workers’ debts far outpace their income. But with no alternative to meet their obligations, they must continue to work, resulting in situations of debt bondage.

Moreover, workers are often coerced or forced into enduring inhumane working conditions. Laborers in shrimp factories can spend up to 16 hours a day with their hands in ice water peeling shrimps.  They are not given adequate time to rest and are often forced to work while ill or are denied adequate medical attention. Beyond this, many factories are woefully inadequate with respect to safety and living conditions, often with 50 to 100 workers crammed into tiny sheds. Workers are threatened with violence (to themselves or their families) or with arrest and deportation (for their undocumented status or outstanding debts) to prevent them from leaving. For those who do manage to escape, they are often caught and returned by complicit local authorities, according to reports, or are sold or forced into a neighboring operation by owners competing for labor.

Furthermore, many reports document child labor in these factories. According to the International Labor Organization report, “Child Labor in the Value Chain of the Shrimp Industry in Thailand,” in Samutsakhon—one of the main Provinces dedicated to shrimp exportation—most children employed in this industry started working before their 15th birthday. In at least one reported case, a worker at a shrimp peeling factory was so tiny that she had to stand on a stool in order to reach the peeling station.

These violations are not limited to the shrimp industry, but are issues throughout the Thai seafood supply chain. Many ILO reports detail how migrant workers in the fishing industry are often tricked into inhumane working conditions. An article by the Guardian also recently found egregious human rights violations aboard fishing vessels operating in and out of Thailand. And until the recent Trade Facilitation and Trade Enforcement Act amended the law, U.S. officials were often powerless to exclude these seafood exports pursuant to their power to exclude goods procured as a result of egregious human rights violations, due to an anachronistic exception for goods that cannot be procured by another source.

THE PRIVATE SECTOR RESPONSE: THIRD-PARTY CERTIFICATION SCHEMES ON HUMAN RIGHTS AND LABOR RIGHTS

In the face of government inaction and impunity, the private sector has turned to third party certification schemes as a tool to ensure that human rights and environmental concerns are addressed within their global supply chains. These schemes seek to reassure retailers, restaurants, suppliers and consumers that certain labor rights protections and sustainability standards are being met. By enabling companies to identify and remove violations that occur within their supply chain, these schemes in turn help companies avoid negative publicity associated with being linked to those practices.

In a third party certification scheme, an independent organization works with stakeholders such as NGO representatives, trade unions, key retailers, academics and the general public to formulate a set of standards that certified companies must meet. A company wishing to gain certification must agree to have their supply chains audited to ensure compliance and follow-up audits are often mandated. Once the company is certified, it receives a license to use the certification mark on all goods it sells. A retailer may also require certification from a certain scheme as a condition for its suppliers, so applicants must be certified to retain access to the most profitable markets.

In the seafood industry, the major certifications for human rights and labor rights compliance include, among others, Social Accountability International 8000 (SA8000), Best Aquaculture Practices (BAP), Marine Stewardship Council (MSC), Aquaculture Stewardship Council (ASC) and Friends of the Sea (FOS). These certifications are voluntarily adopted by both retailers and participants in their supply chains and rely on basic international human and labor rights standards such as those established by the International Labor Organization (ILO) and the Food and Agricultural Organization (FAO). The standards set by these certifications address issues such as forced labor, child labor, traceability and transparency of production processes.

While each of these certifications more or less protects foundational human rights in the same way, there are some differences in how they protect other labor rights. Many certifications differ in the extent to which they require adherence to core ILO conventions or merely defer to national standards.  There are also differences in their organizational governance and the rigor of their audit procedures. With governance for instance, the standards of some certifications are formulated by an independent technical committee, as in the case of FOS and MSC. Others, such as BAP, rely on such committees, but have the discretion to adopt or reject proposals. Similarly, with audit procedures, there are disparity in the manner of auditing and level of scrutiny, with some providing more protection than others. These variances in protections, governance and auditing can determine the success or failure of a scheme in ensuring that companies uphold basic human and labor rights.

After the Associated Press and several other media sources reported on widespread slave labor and human rights abuses in the Thai seafood industry, new attention has been focused on the practice of adopting third party certification schemes as a way to prevent such abuses from occurring in the future. While these certification schemes are certainly a step in the right direction, their efficacy will be limited unless reforms are made. In the second part of this series, we will discuss the shortfalls of third party certification schemes and possible changes to benefit workers, corporations and consumers.

Sreelatha Babu is an LLM student at Fordham Law School. Denis Nolasco is a 2L at Fordham Law School. E. Constantinos Pappas is a 3L student at Fordham Law School. They all participated in the Spring 2016 Corporate Social Responsibility Clinic at the Leitner Center for International Law and Justice.

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: Rienk Nadema/Marine Stewardship Council/Creative Commons

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Fighting forced labor in Europe

By Miriam Quarticelli

Despite common (mis-)conceptions, forced labor is one of the most urgent issues affecting Europe in recent years. Although forced labor is often seen as a problem in developing countries, the International Labor Organization (ILO) estimates that 880,000 women, men and children are victims of forced labor in the European Union. In 2012, an outrageous number of 20.9 million women, men and children were trapped in jobs into which they were coerced or deceived, meaning that around three out of every 1,000 persons worldwide are victims of forced labor, according to the ILO.

THE SITUATION IN EUROPE

Forced labor is defined by the ILO as workers who are “coerced to work through the use of violence or intimidation, or by more subtle means such as accumulated debt, retention of identity papers or threats of denunciation to immigration authorities.” Fifty-eight percent of victims of forced labor in the EU are women, according to the ILO. Data also shows that domestic work, agriculture, manufacturing, construction, hospitality, cleaning, food manufacturing and processing and textiles and clothing are the main sectors employing victims of forced labor. Often, forced labor is accompanied by other forms of labor abuse and exploitation. Victims are coerced or forced to work long hours in dangerous conditions. They face physical, sexual and psychological abuse in the workplace and are unable to leave due to threats of violence, confinement, outstanding debt or other consequences. For example, a report by Human Rights Watch documented how some migrant domestic workers in the United Kingdom were coerced to work through low payments, physical and psychological abuse and the withholding of travel documents such as passports. “In London they just locked me at home … I ate after they finished, the leftovers … When I ran away I was sleeping in the park because I didn’t know anybody here … I felt like a beggar,” one domestic worker told HRW.

In Europe, forced labor is also associated with human trafficking and illegal cross-border migration, as irregular migrants are often vulnerable to forced labor. In some instances, migrants may agree to be trafficked, placing their trust in worker recruitment agencies, only to find themselves with no way to return home and forced to work in sub-standard conditions or in a position they had not agreed to. Migrants from inside the EU (Bulgaria, Poland and Romania) and from outside the EU (China, Morocco and Turkey) are often affected. However, migrants are not the only source of forced labor.

In fact, a report by the Joseph Rowntree Foundation on forced labor in nine European countries documented that many people affected by forced labor are EU citizens. Despite this, EU governments continue to view and tackle forced labor as an immigration, human trafficking and border-control issue. European governments focus mostly on immigration regulation rather than ensuring protections in the workplace because it is easier to believe that tougher border controls will lead to a decrease in forced labor. This narrow conception of how to fight forced labor overlooks how many individuals may be trapped in conditions of forced labor within their own countries or in countries where they are present legally.

LEGAL OBLIGATIONS OF EUROPEAN COUNTRIES

At the international level, Article 4 of the Universal Declaration of Human Rights (UDHR) establishes that “no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) prohibit slavery, servitude and forced labor, and guarantees the freedom of movement and the right to determine where to work. This means that all workers have the right to work in favorable conditions which include fair wages, safe and healthy working conditions, rest, reasonable limitation of working hours and periodic holidays with pay.

Furthermore, laws created within the framework of the ILO are of crucial importance, including the Forced Labour Convention of 1930 and the Domestic Workers Convention of 2011, which establishes the rights of domestic workers, including standards for minimum age of employment, protection against abuses and violence, adequate salary and working conditions. At the European level, Article 5 of the EU Charter of Fundamental Rights prohibits slavery and forced labor. These treaties place an obligation on states to protect people from rights violations. In fact, according to Article 45 of the Treaty on the Functioning of the European Union (TFEU), member states must guarantee the right to move freely within the EU and to be protected from discrimination on the ground of their nationality in labor situations. Moreover, Article 15 of the Charter of Fundamental Rights allows every EU citizen the right to seek employment and to work in any EU Member State without being exploited.

ENSURING FREEDOM AND RIGHTS

Despite international laws and regulations seeking to eliminate forced labor, many labor rights violations still exist in Europe and most responses to forced labor are ad hoc rather than systematic. For example, some non-governmental organizations (NGOs) have set up programs to assist victims of forced labor who are also migrants or undocumented workers. While this is beneficial for irregular migrants, such initiatives are less likely to reach and aid EU migrants or citizens who have experienced forced labor. Moreover, once a case of forced labor is identified, there is a high burden of proof for legal action. With this in mind, the practice of pursuing several legal routes at the same time (e.g. employment and criminal cases) may offer the best option for those who have experienced forced labor.

To better prevent forced labor, EU states should work to raise awareness about the indicators of forced labor within government agencies, labor inspectors and civil society. They should also reinforce labor market regulations and associate these regulations with inspection and enforcement powers. Furthermore, it is essential to combat human trafficking and to implement stronger immigration laws to protect migrants who are vulnerable to forced labor. Finally, EU states should sign onto a legally-binding treaty on forced labor, which should include updated standards on preventing forced labor and compensating victims.

As the EU investigates reports of slave labor on Thai fishing vessels that supply seafood in European markets and considers a ban of imports produced by forced labor, the EU should not forget that these same types of violations are occurring within its own borders. Most recently, human rights groups and news organizations have documented forced labor in Poland, Malta and Greece. The EU must practice what is preaches and set a strong example for the elimination of forced labor and in achieving justice for victims of these abuses.

Miriam Quarticelli is a Staff Writer for Rights Wire.

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: AnaManzar08/Creative Commons


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How the Trans-Pacific Partnership fails human rights

By Rodrigo Bacus

On Nov. 5, 2015, the Obama administration released the full text of the Trans Pacific Partnership Agreement (TPP), triggering a three-month Congressional review for approval. The TPP was negotiated between Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States, representing around 40 percent of the world economy. The TPP covers a broad range of topics including patents, intellectual property, labor trade, free trade, investments and the environment. Since 2008, the TPP has been negotiated in secret, attended mostly by large corporations and their lawyers, prompting criticism from various groups that were concerned over the effects of the agreement’s provisions. These concerns were exacerbated when WikiLeaks released some draft provisions of the agreement in 2013, confirming many groups’ fears over human rights protections in the agreement. The full 2015 text of the TPP has not made much of an improvement in its rights protection language since 2013, notably lacking any reference to the term “human rights” in any of its chapters. The TPP’s controversial provisions have prompted different rights organizations to actively campaign against the agreement, highlighting various issues relating to labor, the environment and healthcare. What’s worse is that the TPP’s primary enforcement mechanism, which prioritizes the rights of corporations, pulverizes national sovereignty in the interest of profit. Given these provisions, the TPP is deliberately set up to benefit private corporations and the global elite.

INADEQUATE LABOR RIGHTS 

The Office of the United States Trade Representative, among other supporters of TPP, promises that the agreement will “level the playing field” of labor rights and standards. Yet, the actual provisions of the TPP belie modest improvements to labor rights that do not address other important concerns of labor organizations around the world. The TPP does not reference the fundamental conventions of the International Labor Organization (ILO), which protect the right to organize, collective bargaining and equal remuneration, and also prohibit child labor, forced labor and discrimination. The agreement refers only to core labor rights in the ILO Declaration of 1998 and completely omits the core right to equal remuneration (sometimes referred to as “equal pay for men and women”). Lacking a reference to ILO Conventions limits the ability to hold state governments and corporations accountable to labor rights to the TPP’s enforcement mechanism. Failing to include the core right to equal remuneration ignores the impact that globalization and free trade has had on the welfare of women laborers around the world.

Moreover, the TPP allows for derogations from “acceptable conditions of work” if the company’s lowered standards do not otherwise impose forced labor, child labor, discrimination, or restrictions on collective bargaining and unionization. This means that a company does not have to meet minimum wage, work hours or health and safety standards so long as their conditions do not violate core labor rights, except for equal remuneration, and the company is outside of export processing zones or other special zones. As a result, most laborers are more vulnerable to violations of labor rights under the TPP.

Not to mention, the TPP omits reference to or protections related to other contemporary labor issues championed by labor organizations around the world. Many labor organizations have been pushing for the creation of a living wage standard, which takes into account the needs of laborers around the world as it is tied to their welfare and conditions inside and outside of work. The language suggested by labor rights organizations is reflected in the ILO’s Minimum Wage Fixing Recommendation, which makes the goal of the living wage standard “to overcome poverty and to ensure the satisfaction of the needs of all workers and their families.” In comparison, the TPP’s provision of adopting and maintaining “acceptable conditions of work” is weak, omitting the goal of standards of wage and labor conditions to address poverty and limiting the interpretation of “acceptable” to TPP’s self-contained enforcement mechanism.

WEAK ENVIRONMENTAL STANDARDS

There are similar concerns that the TPP’s provisions on environmental preservation are noncommittal, and trump actual obligations by nation-states under multilateral environmental conventions. The TPP does not prohibit the trade of lumber and wildlife products acquired through means that violate environmental laws, obligate countries to abide by trade-related provisions related to conservation or ban certain forms of industries that affect wildlife and environmental conservation. Instead, it asks countries “to combat” illegal trade, “endeavor not to undermine” country obligations to the conservation of fish and other industries and only “promote” the conservation of sharks and other species. The TPP’s language on environmental issues is essentially retrogressive of many multilateral environmental conventions that have been made in the past. Moreover, it only mentions one such multilateral environmental convention, the Convention on International Trade in Endangered Species of Wild Flora and Fauna, binding only the TPP signatories who are also parties to that convention.

Despite a global message from people’s movements fighting against climate change, the TPP makes no mention of “climate change” in its chapter on the environment. What it does have are weak provisions on emissions and the protection of the ozone layer. The low emissions provision only “acknowledges” a “transition” to a low emission economy. The provisions on the ozone layer only control the production, consumption and trade of substances in the Montreal Protocol on Substances that Deplete the Ozone Layer. The Montreal Protocol only lists various fluorocarbon gases known to deplete the ozone layer (CFCs, HCFCs and HFCs); it does not cover a wide range of other products that directly impact climate change, such as fossil fuels. The TPP does give corporations the ability to enforce their expectations of profit on fossil fuel extraction on signatory states through the TPP’s self-contained enforcement mechanism. Looking at analogous trade agreements suggests that such a mechanism will have a chilling and damaging effect on efforts to protect the environment. As an example, El Salvador’s choice to listen to its people and hold off on resource exploration to preserve the environment was met with an arbitration case with damage claims far exceeding the country’s GDP.

INADEQUATE ACCESS TO AND AVAILABILITY OF LIFESAVING MEDICINE 

The TPP’s provisions on intellectual property also raise concerns about healthcare and the access and availability of affordable lifesaving medication. Modeled after the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, the TPP’s patent provisions significantly strengthen the ability of pharmaceutical companies to easily acquire patents over newly developed medication and, in most cases, extend the monopoly period of such medication after the patent is acquired. In return, the TPP includes some “understandings” that merely “affirm” the signatories’ commitment to public health and provides for a limited option for countries to protect public health during health crisis situations. Countries may take other measures, but they are not otherwise obligated and are still subject to the TPP’s self-contained enforcement mechanisms when taking such measures, which will be discussed later.

The concerns related to access and availability of medication under TRIPS and similar agreements (generally known as TRIPS plus agreements) are well-known. The traditional intellectual property rights regime creates two problems when it comes to lifesaving medication. On the one hand, pharmaceutical companies are incentivized purely through sales profits when inventing medication, thus leaving inadequate incentive to research and develop products that save the lives of poor people. In addition, even if a company has created a particular medicine, the monopoly provisions of a traditional intellectual property regime allows the company to raise the drug prices for maximum profit, which makes it difficult, if not impossible, for the poor to afford the available medication. The provisions in the TPP do not address either problem of access to and availability of lifesaving medication, leaving states to address public health crises, such as HIV/AIDS, malaria and Ebola, with whatever methods or devices they had in the past. Yet, such practices could come under attack due to the private enforcement mechanism that is available only for corporations under the TPP, which will be discussed in-depth in the next section.

PROBLEMS WITH THE INVESTOR-STATE DISPUTE MECHANISM IN THE TPP 

The biggest problem with the TPP’s provisions is its overarching enforcement mechanism that uses private arbitration tribunals to resolve disputes between companies and states. Even if the TPP’s provisions on labor, environment, and health care were more rights-respecting, such an enforcement mechanism still highly favors companies over the interests of the signatory governments, let alone the people of those countries. An arbitration tribunal comprises of a panel of arbitrators, usually three individuals, who make decisions over a dispute between two parties. Because the arbitration is private, the parties are often under contract not to disclose the details of the case. However, unlike companies, states have to be accountable to their constituents, particularly relating to their obligations under human rights law. Investor-state arbitrations are still generally private affairs, with some cases released to the public under mounting pressure from people directly affected by them.

Investor-state disputes have also historically favored corporate interests over state interests. When analyzing disputes based on their merits, corporations win a favorable decision 60 percent of the time. Arbitration panels also tend to comprise of a small group of career arbitrators, with an “elite 15” making decisions in 55 percent of investment treaty cases. This essentially creates an oligarchy of arbitrators that favor corporate interests over the state or its people. Meanwhile, the interests of the people, including their human rights and dignity, are generally left out of such a dispute. In particular, under the TPP, states are unable to uphold human rights and other obligations because they are explicitly left out of the TPP’s provisions.

The most egregious issue with investor-state dispute arbitration is that only companies have a right of action against states. States do not have a right of action against companies under the TPP, although it provides for a right of action against other states. This means that while states cannot sue or take action against companies using the TPP’s mechanisms, companies can sue countries over the loss of their expected profits, even if these profits were lost due to regulations or actions in the public’s interest. This is of particular concern for indigenous peoples, who are not adequately protected under the TPP. The TPP does not include the concept of free, prior, and informed consent, one of the foremost protections that indigenous people have to protect and retain their land and resources. With such strong protections for corporations under the TPP enforcement mechanism, corporations will be free to exploit the ancestral lands of indigenous groups for gold, timber and other natural resources.

JUNK THE TPP

Right now, if the TPP is ratified, it will only bind signatory countries. However, more countries will be able to join the TPP once it comes into force. Members of the Asia Pacific Economic Cooperation (APEC), for example, have already expressed optimism about the TPP and their interest in creating a regional market hub after its passage. This means that the TPP has the potential to drastically alter the global economy and conditions for millions of people. The fact that corporations can act with impunity within the TPP framework while benefiting their bottom line tremendously has sparked condemnation and action from human rights organizations in opposition to the agreement. Many are concerned over the effects of TPP in the long term.

In the face of water cannons, tear gas, and other forms of severe state repression, protesters of the APEC Summit, held in the Philippines, protested the summit and the unveiling of the TPP. In the U.S., over 1,500 advocacy groups signed a letter opposing the TPP. And from Malaysia to Peru, protesters have gathered to urge their governments to not sign the treaty. Rights organizations have decried the TPP’s attack on “sovereignty, human rights [and] efforts to create sustainable communities and limit climate change.” Other activists and organizations, such as KARAPATAN, a Philippine human rights organization, have criticized the agreement as imperialist, advancing the expansionist ambitions of the United States over the Asia-Pacific. While the U.S. is expanding militarily through agreements such as the Enhanced Defense Cooperation Agreement in the Philippines, it is achieving economic expansion through the TPP. With much at stake, activists and groups are calling on countries to say #NotoTPP.

Rodrigo Bacus is a Staff Writer for Rights Wire.

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: GlobalTradeWatch/Creative Commons


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Two years since Rana Plaza: why the Accord and the Alliance are all the more relevant

By Yo Shiina

Following the devastating collapse of the Rana Plaza factory in Bangladesh in April of 2013, which claimed the lives of 1,129 people, two historic initiatives were launched by the world’s major apparel brands: the Accord on Fire and Building Safety in Bangladesh (“the Accord”) and the Alliance for Bangladesh Worker Safety (“the Alliance”). Both initiatives seek to establish mechanisms for preventing fire and safety hazards. These initiatives are all the more relevant now as increasing international attention focuses on meaningful change in the apparel sector.

During the Spring 2015 semester, the Corporate Social Responsibility Clinic at the Leitner Center for International Law and Justice undertook a review of these two mechanisms to identify structural differences and similarities between them, and to assess the current status of inspections and implementation measures at the supplying factories of some of the major signatory brands.

A FACTORY COLLAPSE AND AN INDUSTRY UNDER SCRUTINY

Ready-made garments (RMG) is the largest industry in Bangladesh, comprising nearly 50 percent of the nation’s economy, according to a report by the Institute of Developing Economies. Approximately 4 million workers work in the RMG industry, 80 percent of whom are women. Through their work, they indirectly support 40 million people, which is approximately a quarter of the entire national population. A typical RMG factory worker may earn about $1,176 dollars per year for six 10-hour work days per week for 300 days a year. This is after the 77 percent wage increase in 2013.

Due to a lack of land space and high population density, garment factories are typically built one upon the other, and in some cases, in former swamp areas. With multiple factory owners sharing the same building, structural weakness tend to be overlooked—highly stressed columns and cracks in beams often go unnoticed. It was in this backdrop that the multiple garment factory complex Rana Plaza, housing five workshops and 2,000 workers, collapsed on April 24, 2013.

Even before the Rana Plaza incident, fire and safety hazards were common in Bangladesh factories. For example, a fire at Tazreen Fashions killed 112 workers in November 2012. Responding to this, the Ministry of Labour and Employment of Bangladesh, in a joint effort with the International Labor Organization (ILO), coordinated the adoption of the National Tripartite Plan of Action on Fire Safety and Structural Integrity in the Ready-Made Garment Sector in Bangladesh, which was signed by the government, employers and workers. This plan set out a blueprint and timeline for respective parties to implement changes ensuring workers’ safety and building integrity. Although the Plan—originally set in place even before the Rana Plaza tragedy—was designated as a response to Rana Plaza collapse, the international community continued to question fashion brands’ culpability in the collapse, even though the brands did not directly own the supplier factories. Images of fashion brands’ labels amid the rubble quickly circulated the Internet, along with media reports of workers laboring in the often abusive environment for a mere pittance until the moment the building collapsed over them. Spurred by the calls for accountability, the brands took action: the Accord was launched on May 15, 2013 and the Alliance on July 10, 2013.

THE ACCORD AND THE ALLIANCE

Although both the Accord and the Alliance share the same goal of preventing fires and building safety hazards in Bangladesh and are based on the National Tripartite Plan, there are some marked differences between the two instruments. The Accord is often described as an “European” initiative, as its over 260 members include many top European companies, such as Benetton and Mango. Some American companies such as PVH and Abercrombie & Fitch are also signatories. The Alliance, on the other hand, comprises of 26 North American brands and companies, including J.C. Penny, GAP and Walmart.

The Accord is a legally binding agreement signed by brands, trade unions and NGOs. Over 260 companies have signed onto the Accord. Most signatories are from Europe, but some are also from North America and Asia. Six Bangladeshi labor unions and four global labor unions have also joined the Accord, and four international NGOs are currently acting as witnesses. Signatory companies commit to the Accord’s activity and obligations for the full duration of its existence. Each company commits to maintaining long-term sourcing relationships with its main suppliers, conditioned upon the supplier’s compliance with fire and building safety measures. The Alliance, on the other hand, is comprised of 26 North American brands and retail companies, and is not legally binding in the same sense: signatory companies don’t commit to any long-term sourcing relationships or assistance in remedial measures, and membership can be terminated at any time.

Under the Accord, signatory companies must ensure factory workers’ employment during necessary fire and building safety remediation. They must also work with suppliers to ensure that remedial measures are financially possible. Under the Alliance, the signatory companies have no such obligation. Also, while the Accord obligates signatory companies to maintain long-term sourcing relationships with complying factories, there is no such requirement under the Alliance, whose members may also resign at any time.

Many similarities also exist between the two initiatives. Both the Accord and the Alliance have a limited time span of 5 years to accomplish their objectives (although, in theory, both plans may be extended). Both provide fire and safety training programs and a hotline for factory workers to report dangerous working conditions. And the two pledged to conduct safety inspections of the supplier factories contracted with their company signatories. To that end, signatories are required to publicly disclose their list of contracting supplier factories and work with third party inspectors. However, while the Accord appoints an independent Chief Safety Inspector, who is free from the Accord’s interference except in cases of suspected incompetence or wrongdoing, to oversee inspections, the Alliance employs multiple inspectors who are under its supervision. Moreover, under the Alliance, a signatory company can select the inspector for its own supplier factories.

On top of these efforts, the Accord and the Alliance both publish Corrective Action Plans (CAPs), which are inspection reports for the supplier factories that set out issues relating to structure, fire and electricity in the inspected factories. A review of some of the CAPs conducted by the Clinic, in partnership with an international NGO, identified some recurring patterns: inadequate, blocked or locked exits; electric wires and cables kept under hazardous conditions; and building structure risks, such as highly-stressed columns and beams. To date, both the Accord and the Alliance have completed inspections of all of their respective signatory companies’ suppliers. Some factories were shut down, and non-complying factories that remained open despite warnings were disclosed; signatory companies can no longer contract non-complying suppliers. Visibility of such information is expected to not only heighten public awareness, but also impact the behavior of other supplier factories.

ENSURING SAFETY AND ACCOUNTABILITY

While the difference between the Accord and the Alliance sparked debate in the initial stage, there have been some concerns that the two initiatives only cover a part of the entire 5,000 to 6,000 RMG factories in Bangladesh. The factories supplying covered under the Accord or the Alliance comprise only a part of the whole RMG industry, and non-signatory companies’ supplier factories remain outside the supervision of the international community. Moreover, one of the major obstacles in bringing about transparency and enforcement is the strong political influence exercised by many of the supplier factory owners, many of whom strongly favor the status quo. Another is how the trade association, Bangladesh Garment Manufacturers and Exporters Association has an openly hostile attitude against workers’ rights and changes to the existing structure. Under this political landscape, even if a more worker-friendly law was enacted, the enforcement remains difficult.

It is undeniable, however, that these initiatives—which were motivated by consumer protests and implemented despite the fact that member brands do not directly own their supplier factories—made possible what was before unthinkable. This momentum for increased accountability and worker’s rights is all the more relevant after a recent deadly fire that killed 72 workers in the Philippines. The conditions at the factory was a virtual “death trap,” with windows covered with steel mesh and an inadequate number of exit doors. Initiatives such as the Accord and Alliance, even with their differences, can continue to promote awareness about the chain that links consumers, brands, corporations, supplier factories and labor all together, and what we as stakeholders can do to prevent these preventable tragedies. Though perhaps imperfect, they are a step in the right direction. In today’s world, where the fashion industry is based on increasingly frequent turnover during short selling seasons and is raking up revenues by selling higher volumes of cheaper fashion, we must continue to analyze and appraise what changes these legal instruments have brought on and what more we need to see moving forward.

Yo Shiina is a 3L student at Fordham Law School. She participated in the Leitner Center Corporate Social Responsibility Clinic.

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: NYU Stern BHR/Creative Commons


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Migrant abuses in the Gulf: a chance to pressure the Kafala system

By Chris Beall

The sheer scope of Qatar’s development plans, in preparation for the country’s hosting of the 2022 World Cup, is nothing short of impressive. Deloitte forecasts that this small, gas-rich Gulf nation will spend an estimated $200 billion on new construction and infrastructure projects by the tournament’s 22nd opening ceremony. For comparison, Brazil’s 2014 World Cup cost approximately $15 billion, while South Africa spent roughly $3 billion on their 2010 games. Qatar’s construction portfolio contains no less than eight planned stadiums, a new international airport, a metro system, expanded roadways and a wave of new hotels to shelter the influx of international tourists attending the games.

However such an ambitious price tag becomes far less impressive, when you consider that the bulk of these projects rest on what is essentially modern slavery. The conditions faced by the migrant workers currently laying the concrete for these projects comprise just the latest nightmarish manifestation of transnational labor.

According to a September 2013 article by The Guardian, Qatar’s World Cup plans will end up costing the lives of approximately 4,000 laborers by the start of the tournament. The nation’s 1.5 million member migrant workforce—primarily Nepali and Indian workers—is on pace to lose about a dozen members per week, as laborers are literally worked to death amongst the nation’s scorching heat and hellish working conditions.

Thankfully, the slavery involved in Qatar’s World Cup plans has garnered a relatively surprising amount of international attention in the last year or so. Whether it’s the international popularity and prestige of the FIFA World Cup, or some other factor, a rare sort of light has been shone on labor practices in Qatar specifically. Go google “Qatar World Cup,” and—at least from a mere baseline exposure standpoint—it’s refreshing to see that the word “slavery” is robustly scattered among the results.

While it’s hard to excuse the lack of concrete measures that have been taken in light of this international attention, it would also be reprehensible to ignore the fact that this is not solely a Qatar problem. Though the state of labor generally under neoliberalism presents a complex human tragedy that spans the entire globe, the specific practices deployed under Qatar’s uniquely massive state-spending project represent just one dramatic example of labor practices in the wider Gulf region: a set of migrant worker policies known as the kafala system.

LIFE UNDER KAFALA

The kafala system, from the Arabic verb “to vouch” or “to guarantee,” consists of a series of labor practices where Gulf employers may sponsor migrant employees—usually South Asian—for a period of contract labor, typically for purposes of construction, manual labor or domestic service. The system is widely practiced in nations on the Arabian Peninsula, as well as in the Middle East broadly, as far west as Jordan and Lebanon. Although accurate numbers are hard to come by, it is estimated by the Migrant Forum in Asia that at least 25 million migrants were employed in 2010 across the Middle East under the system.

Like transnational labor generally, the idealized logic that makes the kafala system possible is based on the concepts of remittances and opportunity, where unskilled workers from impoverished nations may temporarily emigrate to better paying labor markets, in hopes of sending wages home to support and enhance the lives of their families and local communities. What makes the kafala system unique, however, is the concept of sponsorship, where employers and the migrants themselves place highly competitive contract bids with international labor brokers, in order for employers/sponsors to acquire a state of personal responsibility over their incoming workers. Sanitized of its nuances, the idea is to create a protection mechanism, where individual employers become quasi-legally responsible for the well-being of these migrant workers. In fact, the system’s foundations stem from a Bedouin cultural practice, which allows temporary grants of protection and tribal membership to strangers. If you were wandering across the desert and stumbled across a Bedouin community, the inclusion and hospitality promised under kafala would allow that community to feed you, shelter you and protect you, until you freely and voluntarily decided to go on your way.

This benevolent logic is one thing, but how the system translates into modern practice is quite another matter entirely. According to a Human Rights Watch (HRW) report on the kafala system in Saudi Arabia, the combination of high-cost recruitment and broker fees, along with the assumption of legal responsibility over kafala workers, encourages psychological feelings of ownership among sponsoring employment providers, opening the door to all of the traditional abuses of slavery. Although many migrants in these countries are provided adequate living conditions by their hosts, it is common practice for kafala sponsors to retain complete possession of a sponsored migrant’s visa and passport, thereby controlling their workers’ ability to move elsewhere, change employers or even return to their home country.

Under the guise of patronage, the kafala system also allows for gaping legal loopholes, commonly utilized to bypass host-country labor laws. At one level, the kafala framework is immensely privatized, extending sponsorship-granting privileges to individual citizens, a process that individualizes what would otherwise be thought of as a state role in immigration enforcement. The obvious result is diminished oversight concerning the potential for abuse among incoming migration flows. Likewise, in conceiving of kafala workers as individually-sponsored guests rather than state-sponsored contributors to host-nation economies, traditional worker protections (such as Saudi work-hour caps and minimum rest day requirements) do not apply to kafala migrants, HRW documented.

Worse, even in undeniable cases of blatant abuse and exploitation (the sexual abuse of domestic workers, for example), kafala migrants are often left without any semblance of a means of redress. Although such practices are technically illegal, and should be punished in court, kafala migrants face a social stigma and perceived lack of credibility that effectively block access to host-nation justice mechanisms. Those who do manage to access host-nation judicial systems often find themselves subject to dubious counterclaims of theft or witchcraft, resulting in either dropped charges entirely or their own prosecution, HRW reported. With the complete absence of legal aid or procedural protections, kafala migrants who suddenly find themselves as defendants can and occasionally do receive harsh sentences, from jail time to public whippings, and in some cases, beheadings.

The result of these practices is a system of transnational labor that normalizes and systematically enables the abuses of slavery within many contemporary Middle Eastern societies. The human rights abuses cultivated by kafala labor—non-payment of wages, involuntary confinement, forced starvation, physical beatings, rape and court-ordered beheadings—should each raise alarm among both human rights advocates and transnational entities conducting business in the region, whether multinational corporations or organizations like FIFA.

CHANGE, REFORM AND POLITICAL PRESSURE

The important work of human rights organizations and awareness groups like Migrant-Rights.org has had some traction on influencing the discourse surrounding today’s kafala system. Although little has tangibly improved, many Gulf governments have shown some signs of sensitivity when it comes to political pressure and criticism of these labor policies. In 2008, Bahrain banned the kafala system outright, although such a shift never translated from rhetoric into substantive change. Qatar has also used this same kind of facial-reform language lately, in light of its own mounting criticism. Meanwhile, in the Emirates, Dubai has recently witnessed a rare series of public migrant strikes, as laborers there protest their slave-like working conditions.

Notably, Saudi Arabia has also launched a series of migrant labor reforms, which now allow many of the nation’s estimated nine million kafala workers to switch jobs or change employers without their sponsor’s consent. Although these reforms were launched primarily as a way of targeting Saudi national unemployment, and only apply to the employees of firms that do not meet set citizen-worker quotas, such a change in policy reveals that when these governments find it within their interest to alter the kafala system, and consequentially improve the lives of their migrant workers, they are perfectly capable of doing so.

Which makes the case for increased international scrutiny right now all the more sensible. At a moment when the abusive human rights practices of long term U.S. adversaries like Cuba and Iran have entered the spotlight of public discussion, it would be an especially fitting moment to break Washington’s silence concerning the troubling human rights practices of our traditional partners as well. Some of our closest allies in the Middle East today are the most entrenched practitioners of kafala labor. Between the international community’s current normalization efforts with longtime Gulf-rival Iran, and the billions of international dollars flowing toward Qatar’s World Cup, there is an atypical sort of alignment here for international players to leverage positive change in the region. We should take advantage of that. It would mean failing millions of the world’s most vulnerable migrants, were we to not seize this rare opportunity.

Chris Beall is a Staff Writer for Rights Wire.

Photo credit: the apostrophe/Creative Commons