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Protecting abortion as a human right in the U.S.

By Elizabeth Gyori

Just days after the Supreme Court struck down a restrictive Texas abortion clinics law, the state is now seeking to force all fetal tissue to be cremated or buried after abortions. In June, Louisiana passed a law banning the most common and safest form of abortion during the second trimester, effectively forcing women to undergo less safe abortion procedures or to not get abortions after 12 weeks of pregnancy. Alabama’s state legislature passed a bill in May restricting abortion clinics from operating within 2,000 feet of public elementary and middle schools. A new law in Indiana bars women from getting abortions if a fetus’ race, gender or genetic disability is the motivating factor. Bans on abortions at 20 weeks of pregnancy—when the fetus is still not viable outside the mother’s womb—are in effect in many states across the U.S. These are only some of the most recent draconian laws passed by U.S. states to restrict women’s access to abortion and to curtail women’s human and reproductive rights. As attacks on a woman’s right to control her own body increase in frequency and fervor, it is more urgent than ever to protect a woman’s right to abortion as a fundamental human right.

Abortion clinics are closing down at an alarming rate across the U.S., in both blue states and red states. While statistics on abortion clinics closures are scarce, one report by Bloomberg estimated that at least 162 abortion clinics in the U.S. stopped providing services or shut down entirely since 2011. Only 21 abortion providers have opened up to take their place. In many states, just a few (or sometimes, just one) abortion clinics service the entire area. Many women are being forced to travel hours and across state lines to obtain legal, timely and safe abortions. The drastic decrease in abortion clinics is largely due to various laws passed around the country placing medically unnecessary restrictions on doctors and abortion providers. These include requiring doctors to have admitting privileges at or an affiliation with a nearby hospital, imposing burdensome licensing requirements for abortion clinics (i.e. being licensed as ambulatory surgical centers), excessively regulating the facilities where an abortion will be performed and criminalizing the most common forms of abortion. (These first two practices were ruled unconstitutional in the 2016 landmark case, Whole Woman’s Health v. Hellerstedt, by the Supreme Court, and will likely see legal challenges in many states across the U.S. Despite this, history tells us that more creative and restrictive abortion laws will only replace them.)

Beyond these attacks on the clinics themselves, states have passed laws imposing medically unnecessary wait times and counseling on women seeking abortions, as well as restrictions on insurance coverage and minors’ access to abortions. Coupled with the sharp decline in abortion clinics, women all over the U.S. are being denied the health care that they need, deserve and to which they have a right. They are faced with the devastating reality that they no longer have full control over their bodies, their labor, their choice of motherhood. And they are seeing that if they want to take back control—sometimes through purchasing abortion-inducing medication on the internet, as Purvi Patel did in Indiana—they will be arrested, jailed, criminalized and even demonized.

In recent years, abortion access and reproductive rights have been the most threatened since Roe v. Wade legalized abortion in the U.S. in 1973. The debate over abortion has often centered on morality and religion, rather than the rights of women. As states pass more and more laws restricting abortion in one way or another (with, perhaps, the ultimate goal of banning abortion altogether), we must understand that not only are these laws unconstitutional, but they are in violation of the U.S.’ human rights obligations under international law.

Abortion is a critical component of comprehensive reproductive health care for women. Denying women access to this procedure violates women’s right to life and health care. Article 6 of the International Covenant on Civil and Political Rights (ICCPR), to which the U.S. is a party, guarantees the right to life, and governments are required to take the necessary steps (“positive measures”) to preserve life. Since reproductive health care is necessary for women’s survival, access to safe and legal abortion is protected under the ICCPR. Not only must governments respect this right, but states are also required to ensure that women do not risk their lives by seeking unsafe and illegal abortions due to restrictive abortion laws.

On several occasions, the Human Rights Committee has expressed concern about laws that restrict abortion, make abortion inaccessible or discourage safe and legal abortion services, and the Committee has consistently recommended loosening abortion laws. Earlier this year, the Committee affirmed that abortion is a human right under the ICCPR in a landmark case in Peru, in which a woman who was denied a medically necessary abortion received reparations from the government. In June, the Human Rights Committee ruled that Ireland’s abortion ban and the criminalization of access to abortion amounted to human rights violations. After the U.N. Working Group on the issue of discrimination against women in law and in practice conducted a 10-day fact-finding mission in the U.S., they noted in their 2015 preliminarily findings that women in the U.S. are facing increasing barriers to safe and legal reproductive care, which does not meet international human rights standards. They group also stressed that freedom of religion cannot justify the denial of reproductive health care.

Furthermore, laws that restrict access to abortion are discriminatory towards women, as they deny only women’s right to life and necessary health care. They also discriminate against female racial minorities and poor women, who are disproportionately affected by abortion bans and restrictions in the U.S. Since Articles 3 and 26 of the ICCPR protect the equal enjoyment of the rights stipulated in the covenant, anti-abortion laws violate women’s right to be free from gender-, race- and class-based discrimination under the ICCPR.

Beyond this, forcing women to carry pregnancies to term or to seek out unsafe, clandestine abortions is cruel, inhuman and even torturous. Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), to which the U.S. is also a party, guarantees individuals the right to be free from torture and cruel, inhuman or degrading treatment. The U.N. Committee against Torture has recognized that forcing women to carry pregnancies to term or to seek out illegal and unsafe abortions (in which their lives may be placed in danger) qualifies as cruel, inhumane or degrading treatment. Juan Mendez, the U.N. Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, classified lack of access to abortion as torture in his 2013 report. Furthermore, complete bans on abortion violate the rights guaranteed under CAT, according to the Committee, especially since these bans force women to carry pregnancies that result from rape or incest to term. Forced pregnancy, especially as a result of rape and incest, can be incredibly traumatizing, both physically and emotionally.

Recent attacks on abortion are fundamentally about controlling—and arguably, torturing—women. These restrictive laws not only violate women’s basic human rights, but they also contribute to an increasingly polarized, vicious and violent political and social climate. In March 2015, Donald Trump, the presumptive Republican nominee for president, said that women should be “punished” for getting abortions illegally. On Nov. 27, 2015, three people were shot dead and nine people were injured during a shooting at a Planned Parenthood in Colorado. Robert L. Dear Jr., the accused shooter, yelled that he was “a warrior for the babies” during his court hearing, making it clear that his acts of violence were motivated by anti-abortion views. Incidents of violence against and harassment of abortion providers, including arson, vandalism and attempted murder, have increased over the past few years. And groups of anti-abortion activists regularly gather near abortion clinics to terrorize women seeking to exercise their reproductive rights and control over their own lives.

Pro-choice advocates have long worked to establish and portray abortion as a constitutional right, recognized and protected by Roe v. Wade and derived from the constitutional right to privacy. While the latest Supreme Court case was a distinct victory for women and reproductive rights, restrictive laws on abortion like the ones mentioned before have slowly and will likely continue to erode women’s right to abortion. As women face sustained and relentless attacks on their reproductive rights, we must work to protect abortion not just as a constitutional right, but also as a fundamental human right.

Elizabeth Gyori is the Editor of Rights Wire.

The views expressed in this post remain those of the individual authors 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: Steve Rainwater/Creative Commons

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The shortfalls of third party certification schemes and possible remedies for stronger worker protection (part 2 of 2)

By Sreelatha Babu, Denis Nolasco and E.Constantinos Pappas

Whiting_BoxDieline.pdfAs consumers have grown more conscious of the human rights, labor and environmental impacts of their purchases, they have turned to third party certifications (i.e. the Fair Trade or Rainforest Alliance certifications) to distinguish how to ethically spend their money. In terms of human and labor rights, the proliferation of certification schemes is a helpful and welcome development to protect vulnerable workers in developing economies. Especially after news organization have exposed how slave labor, child labor, trafficking of undocumented migrants and debt bondage are rampant in the Thai seafood industry, these schemes may be a useful tool for corporations seeking to uphold human and labor rights in their supply chains.

Unfortunately, a litany of issues, including undue influence from corporate interests, economic pressures, lax enforcement, lack of financial independence, insufficient chain of custody procedures and ineffective auditing procedures, plague third party certification schemes, making them often inadequate in preventing the worst kinds of human rights abuses. In the second part of this two part series on human rights violations in global supply chains and the role that certification schemes can play in ensuring rights, we will discuss the criticisms and shortfalls of current schemes and how reforms can make these schemes more effective. This research and these recommendations derive from a project in the Spring 2016 Corporate Social Responsibility Clinic in partnership with the International Labor Rights Forum.

MAJOR CRITICISMS OF EXISTING THIRD PARTY CERTIFICATION SCHEMES

Although certification standards are formulated with multi-stakeholder engagement, they are often developed with significant influence from corporations that hope to use a given mark. The success of a particular certification depends on retailers and restaurants using the mark on its products. Certifications that require higher standards may result in greater costs to the corporation. If corporations cannot pass these costs onto their supplies, it’s less likely that they will seek to gain certifications. As a result, though many of the schemes purport to use existing International Labor Organization (ILO), Food and Agriculture Organization (FAO) and other international guidelines as a benchmark, many standards cherry-pick or water down the requirements due to business and financial pressures. Furthermore, standards are often silent on important labor rights issues that may not be enshrined in national laws or basic international human rights law. Some certifications only require applicants to honor national labor laws when it comes to critical areas of labor rights, such as daily hour requirements, freedom of association, minimum working age and the right to collective bargaining. This situation is exacerbated when the board of the certification has final say over what standards are selected from the recommendations of the formulation committee.

Certification schemes are also criticized because they do not impose binding obligations on their applicants, due to lax enforcement for non-compliance by the certification organizations themselves. This allows applicants to deviate from their obligations after receiving certification. Most certifications superficially provide for post-certification surveillance audits and heightened scrutiny in regards to complaints of non-compliance. They are also technically equipped to enforce their requirements through sanctions or removal of the right to use the mark. However, most of the certifications surveyed in our project do not provide public reports regarding enforcement or sanctioning, making it difficult to determine whether this occurs in practice. For example, a BAP certified shrimp-processing factory investigated by International Labor Rights Fund (ILRF) and Workers Watch United, revealed substantial human and labor rights violations. Unfortunately, after the investigation, BAP publicly announced that, despite some nonconformities, the factory retained its certification. This suggests that certifications may not completely serious about enforcing their requirements.

These enforcement issues might be related to the fact that certifications and certifying bodies are dependent on fees paid by corporations and applicants, including licensing fees for using the mark and payments for conducting audits. This dependency of certifications on licensing fees could create a conflict of interest between the certifications’ purpose of protecting against human and labor rights violations and their need to generate income to continue operating. This conflict of interest likely permeates the standard formulation process, the initial auditing process and the enforcement process, resulting in less protective standards, over-certification and lax enforcement. The independent auditing organizations themselves are not immune to this, as they are often for-profit organizations that rely on auditing costs for earnings, and are at the mercy of applicants, as many certifications allow applicants to choose their auditor.

Finally, certifications can be criticized for not imposing effective auditing procedures as a condition of certification. Applicants have an economic incentive to gain certification at the lowest cost to their business, preserving access to the market of developed countries with minimal effect on their profits. Despite this, many certifications do not require audit procedures that effectively prevent gaming and manipulation of the audit. For instance, many certifications schemes in our research provide for an initial announced audit and do not provide for random selection of interviewees, among other bare bones procedures. This gives the companies enough time to simulate the conditions required under the certification, resulting in less reliable audit reports and inhibiting the reliability of certifications as a control for human and labor rights risks.

STRENGTHEN EXISTING THIRD PARTY CERTIFICATION SCHEMES

Despite these criticisms, third party certification schemes still provide a feasible and beneficial private sector solution to labor and human rights violations in the seafood industry in developing countries such as Thailand. Much of the present criticism of these standards could be addressed by adopting changes in the organizational structure and procedures undertaken by certification schemes, including making the initial auditing process and the post-certification complaint and grievance process more rigorous and transparent.

During the initial auditing process, more rigor and transparency would help third party certification organizations police human rights violations, such as those discussed in the first part of this series. During the initial auditing process, more rigorous procedures would prevent applicants from gaming the system to achieve certification despite continuing abusive practices. This could include requiring auditors to conduct interviews of employees at random, select safety equipment at random and conduct interviews out of earshot of employers. These practices ensure that the interviewees and conditions of the audit are not prepared beforehand to simply meet standards. More transparency in audit requirements could also aid the non-governmental organization (NGO) community and the public in comparing certifications amongst one another and in effectively advocating for more rigorous procedures.

Certifications could institute more rigorous complaint mechanisms, which would allow the public to ensure that certified applicants continue compliance while giving workers and the public an effective way to voice complaints with confidence. Generally, complaints should trigger unannounced surveillance audits by the certification organization. However, this is not always the case, as shown by the BAP investigation discussed above. More rigorous complaint mechanisms and grievance procedures must be formulated to ensure that union representatives, interested NGOs or workers themselves have an effective outlet for reporting noncompliance. Transparency in this process, including, ideally, a way to see how many complaints have been lodged and their resolution, is essential for ensuring that all issues are promptly addressed. Moreover, a rigorous and transparent complaint mechanism could help prevent situations where certified companies reap the benefits of certification while still profiting from deplorable working conditions, and deter future non-compliance from others who would seek to do the same.

When it comes to the standard setting and auditing processes, including civil society in the process while separating business and financial interests from having final say on the standards is essential. These changes would result in more rigorous substantive standards with the ability to effect real change for workers. Involving NGOs, labor organizations, and other stakeholders more in the standard setting and standard review process would provide a more diverse and spirited discussion on which substantive requirements and procedures should be included by the certification. The separation of business and financial interests of the certification itself from the standard setting and auditing process would ensure that the economic interests of the certification do not impede its judgment. This could be achieved by delegating formulation of standards and auditing procedures to a truly independent committee with final authority within the certification and removing veto power from the main board that manages the other business and affairs of the certification. The independent committee should be comprised of all interested stakeholders, even members of the certification themselves. This would result in standards and procedures that are free from conflicts relating to the finances of the certification or its directors that may hinder the goal of providing a certification that maximizes benefits to at risk laborers.

Of course, the success of all of these reforms depend on the willingness of the certification to enforce its requirements. Thus, increasing enforcement sanctions and suspensions would give teeth to certifications, ensuring that noncompliant applicants suffer financially from deviating from requirements once they obligate themselves to meet them. Sanctions and suspension can be used as an initial deterrent, with revocation of the use of the mark as a final remedy for repeat offenders, cutting out the market for retailers and restaurants who require certification.

Finally, organizations should alter how certification schemes and auditors function financially by overcoming their dependence on licensing and audit fees from applicants. This change will promote impartiality and ensure that standards are formulated without economic incentives in mind. Although this is undoubtedly the hardest reform to achieve, certification organizations could seek out donations, grants or government funding focused on corporate social responsibility. Similarly, auditing bodies could reorganize as non-profit organizations, removing the self-interest motive from the initial audit and surveillance process. Furthermore, if certification organizations themselves assigned auditors to each applicant, rather than allowing applicants to choose, they would remove the incentive among auditors to relax their requirements for more business, removing the main influence behind the race to the bottom for auditing.

MOVING FORWARD

Multinational corporations must be held accountable for their global supply chains and how their products are produced. When governments fail to uphold basic labor and human rights standards, companies have an obligation to step in. For this reason, we applaud the creation of these schemes by the certification organizations and their proliferation through adoption and requirement by retailers and restaurants around the world. However, the work is not yet done. Third party certification schemes can benefit workers, companies and consumers if they are created and used in a responsible, accountable, and transparent fashion. We believe these recommendations, gleaned through our research in conjunction with the ILRF, provide a helpful starting point for creating an effective private sector response to the human and labor rights crisis in the global seafood supply chain.  We hope that these recommendations spur further attention, reform, and response in this critical area. The lives and livelihoods of workers around the world may very well depend on it.

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 authors 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: Walmart/Creative Commons


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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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Combating wildlife crime in Africa

By Nina Decoularé-Delafontaine

In June 2014, Satao, a famous and beloved 45-year-old Kenyan elephant, was shot with a poisoned arrow in Tsavo National Park in Kenya. Poachers cut off his large tusks and left his face and body mutilated almost beyond recognition. His death is one of many examples of the vivid problem of poaching in Africa: elephants for their ivory, lions for sport, rhinoceros for their horns, gorillas for their meat and so forth. The extent of poaching is reaching tragic dimensions. More than 100,000 elephants were slaughtered between 2010 and 2012, according to National Geographic, and wild elephants could very well disappear within 20 years if no urgent measures are taken. Ivory and rhino horns have huge monetary value because of escalated demand in Asian countries. There, ivory is not only carved as an art but is also considered a material with medicinal properties. As highlighted by Foreign Affairs Magazine, “[T]he price of a kilo of rhino horn has surpassed the approximate prices of a kilo of gold, a kilo of platinum, and a kilo of cocaine in the United States”. The ivory trade even funds terrorist groups in some central African countries like Sudan.

Countering the consistent population decline of big wild animals in Africa is an urgent issue. Not only is it an environmental issue, but it is an economic one as well. As reported by the World Tourism Organization (UNWTO), wildlife watching represents “80 percent of the total annual trip sales to Africa […] with that share only increasing”. As animals disappear, millions of tourists in Africa could potentially disappear with them. Moreover, the process of wildlife extinction already threatens ecosystems by impairing the balance between different types of fauna and their local habitat. For example, the potential extinction of elephants, which are highly important seed dispersers, endangers tree diversity and affects other animals along the food chain.

In order to stop this dramatic evolution, countries have taken a number of steps to combat wildlife crime. During the Fall 2015 semester, the International Law and Development in Africa (ILDA) Clinic at the Leitner Center for International Law and Justice undertook a preliminary assessment of the legislation to address wildlife and forest crime in three East African countries: Ethiopia, Kenya and Tanzania. The purpose of this was to review the countries’ participation in the various international treaty regimes; domestic wildlife and forest offenses and related crimes, such as corruption and money-laundering; and key regional and voluntary initiatives in which they have been involved. The Clinic found that considerable efforts were underway to combat wildlife crime in all three countries, as well as key areas in which additional efforts are necessary to protect vulnerable species in these important range and transit countries.

Let us take Kenya as an example of the status of laws governing wildlife crime in Africa. With the adoption of the Wildlife Conservation and Management Act (WCMA) in December 2013, Kenya reaffirmed its commitment to wildlife protection and conservation. This new legislation criminalizes, inter alia, the killing or capture of protected animal species for sport, the killing or capture of protected animals without valid authorization, and the killing or capture of wild animals in protected areas (including game reserves and national parks). Furthermore, the new law introduces a significant increase in both custodial and financial penalties for wildlife crimes. These penalties range from a minimum 30 thousand KES fine (approximately $300) and 6 months imprisonment to a minimum 20 million KES fine (approximately $196,000) and life imprisonment. The new WCMA is a significant step forward, and further efforts are underway to further ensure the effective protection of Kenya’s wildlife.

Further implementation of legislation is needed for Kenya to realize the full potential of the WCMA, including, for instance, for Kenya to fully implement its obligations under the Convention on International Trade in Endangered Species (CITES), which aims to regulate trade in endangered species. The WCMA grants the Kenya Wildlife Service the authority to regulate the import and export of wildlife products and specimens, but a precise regulatory framework for wildlife trade is left for supplementary legislation or regulations to follow.

Aside from focusing on implementation, countries working to curb wildlife crime could also strengthen laws governing related crimes. For example, Kenyan laws on related offences such as money laundering or organized crime do not impose minimum but only maximum penalties. These are relatively low compared to the profit made by poachers. For instance, the tusks of one elephant are worth double the cost of a fine for participating in an organized criminal activity. Strengthening these laws could not only help in the fight against poaching, also bolster the rule of law overall.

Moreover, a successful approach to wildlife crime will be collaborative and inclusive of local communities who interact and live side-by-side with animals at risk of being poached. This includes raising awareness about the issue and the benefits of wildlife, tackling poverty, creating economic opportunities and ensuring that local communities derive benefits from sustainable wildlife management. Community-based conservation and community-based resource management can play an integral role in combating poaching and wildlife trafficking.

The protection of wildlife in Africa is a considerable challenge affecting both the environment and local communities. The road ahead is long and daunting, but we must work to collectively create and sustain momentum. Otherwise, we will have to bear the responsibility and consequences of Africa’s iconic wildlife violently disappearing into the annals of natural history.

Nina Decoularé-Delafontaine is a LL.M. student in International Law and Justice at Fordham Law School. She participated in the International Law and Development in Africa Clinic at the Leitner Center for International Law and Justice in the Fall of 2015.

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: Glenna Barlow/Creative Commons


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Hindustan Zindabad: stifling freedom of expression in the world’s largest democracy

By Jennifer Li

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Student members of the left-wing All India Students’ Association (AISA) shouting the slogan “Inquilab Zindabad,” or “long live the revolution.”

“Hindustan Zindabad!” Long live India! I first heard this Hindi phrase as I sat among thousands of Indians under the long shadow of Delhi’s historic Red Fort last August, listening to Prime Minister Narendra Modi deliver his annual Independence Day speech. I have also heard these words chanted at kabbadi tournaments by Indians who seemingly cheered on no particular team and yet every team, impassioned but neutral spectators to the ancient Indian contact sport which, to the untrained eye, demands equal skill in holding one’s breath and playing a more aggressive version of Red Rover. Most recently, I have heard this slogan shouted by students and professors who marched down the streets of central Delhi, condemning the government of a nation in which they have conveyed, in just two words, not merely great pride, but also tremendous expectation.

On Feb. 12, 2016, the president of the student union at Delhi’s Jawaharlal Nehru University (JNU), Kanhaiya Kumar, was arrested and charged with sedition under Indian Penal Code (IPC) Section 124A, a colonial-era law originally used by the British government to quell Indian nationalism – and try Gandhi – and IPC Section 120B, a criminal conspiracy statute. The charges were based on anti-national speeches that Kumar had allegedly made during a student event on campus marking the controversial 2013 execution of Afzal Guru, a Kashmiri separatist convicted of plotting a deadly 2001 attack on India’s parliament.

The government’s reaction to the arrest has done little to quell accusations that the arrests of Kumar and a former Delhi University professor, S.A.R. Geelani, were politically motivated. The day before Kumar’s arrest, India’s Minister of Home Affairs, Rajnath Singh, warned via Twitter, “If anyone shouts anti India slogan & challenges nation’s sovereignty & integrity while living in India, they will not be tolerated or spared.” Days later, as Kumar was escorted to his first court appearance, a member of the Delhi state legislature and the Bharatiya Janata Party (BJP), OP Sharma, along with some forty lawyers attired in the telltale black and white, were filmed kicking and punching not just Kumar, but also journalists, students and professors. BJP party spokesman Sudhanshu Trivedi has condoned Sharma’s statement that “there is nothing wrong in beating up or even killing someone shouting slogans in favor of Pakistan.”

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Members of the National Federation of Indian Women (NFIW) joined student protestors in the two kilometer march from Mandi House to Jantar Mantar in central Delhi on February 18, 2016.

To many, the most recent arrests represent just one more example of an alarming trend of government-sanctioned crackdowns on academic freedom and freedom of expression and dissent. Universities, in particular, have been in the crosshairs of the BJP, Modi’s right-wing, Hindu nationalist party. Kumar’s arrest came just weeks after the suicide of Rohith Vemula, a Ph.D. student at the University of Hyderabad (HCU) who hanged himself from a ceiling fan after being discriminated against for his status as a Dalit, one of the lowest castes in Hindu society. As with Kumar’s arrest, Vemula’s death was well-publicized and sparked public outrage at the government and the educational institutions that have become puppets of the political machinations of the current administration.

In the months leading up to Vemula’s suicide, the university had revoked his stipend and housing after he condemned members of Akhil Bharatiya Vidyarthi Parishad (ABVP), a right-wing student organization, which, like most student unions in India, is affiliated with a powerful political party – in this case, the Rashtriya Swayamsevak Sangh (RSS). The RSS is the Hindu nationalist, paramilitary arm of the BJP; together, the two groups have helped align the definition of Hindu nationalism with that of Hindu fundamentalism. In what seemed to be a further demonstration of the BJP’s growing influence on universities, the Vice-Chancellor of HCU, P. Appa Rao, reportedly suspended Vemula and four other students after BJP government officials forwarded him a letter by members of the ABVP, accusing Vemula and others of engaging in “castiest, extremist and anti-national” activities. India’s National Human Rights Commission is now investigating “emergency-like” events at the university during the week of March 21, when student protestors allegedly vandalized Rao’s office upon his return from personal leave. The university administration reportedly responded by shutting down access to food, water and the Internet, and closing campus to journalists and politicians. Meanwhile, university officials allowed the police to raid campus and arrest dozens of students and professors. Video has since emerged online of instances of police brutality against student protestors.

Given the government’s growing intolerance of dissent, it is no surprise that the community at JNU, a prestigious public university that is perhaps as well known for its leftist student activism as it is for its superlative academic scholarship, responded quickly and forcefully in asserting not only its support for Kumar, but also academic freedom and freedom of expression. Students organized demonstrations and protest marches. Professors and guest lecturers held teach-ins to packed audiences, lecturing on the meaning of nationalism, the importance of freedom of expression and the power of dissent. The arrests have also triggered condemnation from international scholars, including Noam Chomsky and Judith Butler, who have expressed their solidarity with JNU students. And at a recent academic conference, I sat frustrated with dozens of other American researchers and scholars as we struggled to find a way to express our support for the students’ fundamental rights to freedom of expression without jeopardizing our own presence in our host country. These fears are perhaps not unfounded. Last week, as she applied to extend her visa, a friend who teaches English to middle school students in Delhi was asked by the Foreigner Regional Registration Office if she had any affiliations with JNU.

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Students expressed support for Umar Khalid, a JNU student who surrendered himself to arrest days later on February 24, 2016, and charged with sedition alongside JNU Student Union President Kanhaiya Kumar.

Reactions from those outside India’s academic circles have been more restrained. “They shouldn’t support terrorism and be against India. It’s their own fault,” one young woman told me when I asked how she felt about Mr. Kumar’s arrest. A friend’s landlord also expressed frustration at the protests, albeit for different reasons. “We [the taxpayers] pay for them to go to school. And this is how they thank us?” he complained, apparently objecting not to the substance of the protests, but to the very fact of the students’ right to protest.

What is clear is that Kumar’s arrest has renewed debate about the preservation of the sedition law, which some argue, in its current form, leaves room for excessive checks on freedom of expression. Even so, India’s Supreme Court has ruled that seditious speech may be punished only if there is an “incitement” to – as distinct from mere advocacy of – violence or public disorder. Incitement to violence or “imminent lawless action” is a necessary element to seditious speech, and, as Lawrence Liang, co-founder of India’s Alternative Law Forum, explained, “[m]ere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offence unless this condition is met.” Given Kumar’s political, rather than incendiary, speech, the charges are construed by many to be without merit.  On March 2, 20 days after his arrest, Kanhaiya Kumar was granted bail by the Delhi High Court, but not before his alleged offense was analogized as an “infected limb.” Of the student activism that give rise to the alleged offenses, Justice Pratibha Rani observed, “I consider this as a kind of infection … which needs to be controlled/cured before it becomes an epidemic. Whenever some infection is spread in a limb, effort is made to cure the same by giving antibiotics orally … [s]ometimes it may require surgical intervention also. However, if the infection results in infecting the limb to the extent that it becomes gangrene, amputation is the only treatment.”

Weeks earlier, shortly after he was kicked and punched outside the courthouse by lawyers and lawmakers, Kumar had said in a statement, “I am an Indian. I have full faith in the Constitution as well as the judiciary of the country.”

Hindustan Zindabad.

 

Above is a short compilation of raw video taken at a protest march in New Delhi on February 18, 2016. The march was attended by thousands of students, professors and other supporters across India protesting the arrest of JNU student Kanhaiya Kumar.

Jennifer Li is a 2015 alumnae of Fordham Law School. She is currently a Fulbright Scholar in India.

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.

Photos and videos courtesy of Jennifer Li.


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Using technology to fight terrorism and ensure human rights (part 2 of 2)

By Shruti Banerjee

Recent terrorist attacks in San Bernardino, Brussels and South Carolina have led government officials to increase pressure on major tech companies to take greater measures to help security agencies monitor terrorist activities. This has led to a vigorous debate on the issues of corporate responsibility, individual privacy rights and the government’s ability to monitor terrorist activities. This is the second post in a two-part series about technology, terrorism and human rights. This post will analyze the various positions in this debate, and consider the how the government and tech companies can work together to effectively combat the root causes of radicalization and terrorism while still upholding fundamental human rights.

THE ENCRYPTION DEBATE

With the rise of internet communications, terrorist groups have been using email, messaging applications, online forums and other internet tools to recruit members and plan attacks. Many government officials have firmly argued that tech companies must take greater measures to provide security agencies with data that will help them monitor this extremist activity.

But even if many companies wanted to comply, private messaging systems such as WhatsApp and iMessage automatically encrypt messages, meaning that they are secretly encoded and cannot be read without a key. Thus, companies cannot turn over messages to law enforcement because they have no mechanism of retrieving them. This predicament has sparked a fierce debate over how to monitor and combat terrorist activities on the internet. Many officials argue that tech companies there should create a backdoor—a way for a “secure” system to be accessed through coding or other vulnerabilities—in various applications for law enforcement officials to use when investigating criminal activity.

However, critics, including many leading figures in the tech industry, caution that creating a backdoor to encrypted applications may open a whole new can of worms. Tech companies point out that if any backdoor exists, hackers will eventually find it and reduce data security for all individuals. The BBC notes that if major companies were required by law to introduce back doors, terrorists would simply utilize other platforms, such as free add-on applications that automatically encrypt messages. This would make gathering information even more difficult for security agencies. A backdoor would leave services for innocent individuals far less secure, while dangerous people would be operating on systems that are even harder to gain access to. Furthermore, tech companies such as Microsoft, Google, Apple and Yahoo vowed to protect the privacy of their users from government surveillance by making encryption a default option after the NSA surveillance scandal in the US and UK. Opening up a backdoor would backslide on their promise and endanger individuals’ right privacy on the internet.

Aside from privacy and security concerns, the efficient use of these back doors would also be a challenge. While implementing a system that scanned every online message for extremist or terrorist keywords and hate speech is technically feasible, with approximately 1.3 billion internet users around the world, the number of cases that could be labeled as potential threats would be overwhelmingly high. This type of wide-scale reporting to authorities would be an immense undertaking for tech companies like Facebook, according to the BBC.

CURBING TERRORISM IN OTHER WAYS

Despite the impasse between the government and tech companies on the encryption debate, there are still a myriad of ways tech companies can and do cooperate with the government to help tackle terrorism. For example, Alan Woodward, a cybercrime consultant, says that encrypted messages can be useful in combating terrorist attacks because they still reveal metadata, such as information about who talked to whom and for how long. He explained that metadata was used to arrest the attackers who carried out the attacks in Paris in November 2015. Security agencies can use link analysis to figure out communication patterns and identify potential threats or sources of information.

Internet Protocol addresses (IP addresses), unique identifying numbers assigned to any devices connected to the internet, are also important in the fight against extremism and terrorism. Tracing the IP addresses of recruitment messages and their followers can help intelligence agencies determine the identities of supporters and potential recruits. Tech companies such as Google have complied with the government’s requests for IP address information and if tech companies continue to help track encrypted messages and IP addresses, they could contribute immensely to the fight for security.

When it comes to website content, tech companies could work to block, delete or monitor extremist and hateful content. Companies such as Google do not allow hateful content that incites violence or extremely “graphic or gratuitous” violent content on their platforms. This is usually taken to include violent videos of beheadings used by the Islamic State of Iraq and Syria (ISIS) as scare tactics and recruitment messages. However, since there is no algorithm that can prevent the uploading of violent or extremist content, companies are largely dependent on users to flag inappropriate content, which is typically removed within a few hours. Similarly, other tech companies do not have a mechanism to stop the creation of new extremist websites. While Europe is developing a police team specializing in monitoring ISIS terrorist activities and blocking jihadi sites online, developing a way to quickly delete or prevent the creation of these sites may be helpful. In instances when leaving websites or forums up may be helpful, tech companies and the government could work to monitor or infiltrate extremist groups to gather intelligence, as has already been done by Ghost Security Group, a hacker group committed to the fight against extremism.

HUMAN RIGHTS IMPLICATIONS

As human rights advocates have pointed out, if tech companies are pressured to lessen encryption, create backdoors for the government to investigate terrorist activities and hand over user data, it could be problematic for the basic privacy and free speech rights of many individuals. Many notable factors make it hard for the people to believe that turning over more data to the government will actually make society safer. Firstly, there has been significant mistrust of the government after the U.S. National Security Agency surveillance scandal was exposed by Edward Snowden. After this leak, governments around the world considered and passed pieces of legislation allowing for widespread surveillance of their populace. To address this issue, the United Nations General Assembly adopted resolution 68/167 in December 2013, which reaffirmed internet and technology users’ right to privacy in the digital age.

Secondly, even if the government is given users’ data, there is a good chance that they will not use it. Daryl Johnson, former Analyst at the U.S. Department of Homeland Security, pointed out that right-wing extremist groups were not being monitored effectively (or at all) in the U.S. despite the sharp increase in domestic terrorism carried out by right-wing groups. Right-wing terrorists, such as Dylann Roof and Timothy McVeigh, are known for leaving hateful online manifestos and plans of action. This information was public and the government had full access to it. Instances like these indicate that even if the government is granted access to personal information of individuals, there is no guarantee this data will be analyzed effectively and accurately.

Moreover, several national laws, such as the U.S. Patriot Act, already offer the government significant access to the online activities of individuals and have been criticized for their overreach and lack of privacy protection. After the Charlie Hebdo attacks, France passed a sweeping surveillance bill, similar to the U.S. Patriot Act, to which the U.N. Human Rights Council voiced serious concern for its lack of oversight. Prime Minister Manuel Valle responded to the passage of this bill by saying, “France now has a secure framework against terrorism.” The most recent attacks in Paris, which took place after this law went into effect, suggest that sweeping surveillance powers do not function as a “secure framework against terrorism.” Rather, tech companies and the government need to work together to create a safer system that helps monitor hate speech and terrorist recruitment methods while protecting individual privacy rights.

WHAT WE CAN DO

It is clear that reactionary measures will not prevent future terrorist attacks. U.S. Government forces killed Osama Bin Laden, but now has to contend with ISIS. Hundreds of jihadist sites and accounts have been shut down, just to see more accounts opened. The U.S. and France passed bills granting the government sweeping surveillance powers, which did not prevent the most recent attacks in Paris and San Bernardino. While we focus on foreign terrorist threats, right-wing extremist groups are allowed to organize with almost no oversight and consequences. Effectively combating terrorism will require a two-pronged approach: (1) the government must attack the root of the problem by understanding the socioeconomic conditions which create terrorist breeding grounds, promote recruitment and allow for certain threats to go overlooked; and (2) the government and tech companies must find a way to work together to enhance security and stop hateful speech while simultaneously protecting privacy and free speech rights.

David Mair, a cyber-terrorism researcher at Swansea University, told the BBC that poverty, social exclusion and a lack of positive role models for young Muslim men all drive radicalization. Tackling these core issues will help the West overcome credibility issues with potential extremist recruits and engage individuals in more meaningful ways. He explained that extremist groups are reaching out to alienated young men in the West and offering them an opportunity to join a brotherhood in Syria where they can fit in. Mair argued that this propaganda can be countered by demonstrating why life under ISIS is not utopian and how the religious arguments made by these extremist groups are false. The government must also act to counter the drastic increase in hate crimes against Muslims after the Paris attacks. These bias crimes further exacerbate racial and religious tensions, and promote further radicalization instead of combating the root of the problem.

In line with these actions, spreading truthful facts and thwarting hate speech is also necessary in combating terrorism. After a recent attack on a Planned Parenthood, the Governor of Colorado noted that it was time to tone down the rhetoric that “is inflaming people to the point where they can’t stand it, and they go out and they lose connection with reality in some way and commit these acts of unthinkable violence.” We must do more to monitor and stop right-wing extremism and hate speech that incites violence.

Responding with force after lives have been lost is a reactionary measure that will not eradicate the root of the problem. Our methods to combat terrorism have been failing, and we need to start attacking terrorism comprehensively, from implementing new ways to track terrorist activity online to preventing radicalization and the socioeconomic conditions that foster terrorist breeding grounds. Tech companies and the government can also work together to implement creative mechanisms that monitor important data and thwart hate or extremist speech. If tech companies keep moving in a socially-responsible direction and the government begins to effectively and accurately analyze the data they have, then the internet can become a powerful tool in preventing future terrorist attacks in a rights-respecting way. This type of private-public partnership, coupled with policies promoting education, health care, economic stability and human rights, will be the only effective way to prevent terrorism.

Shruti Banerjee is a 2L at Fordham Law School.

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: Yuri Samoilov/Creative Commons