Rights Wire

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


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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


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Exploring the links between technology, terrorism and human rights (part 1 of 2)

By Shruti Banerjee

The recent terrorist attacks in Belgium and France as well as the rise of right-wing violence in the U.S. have raised many questions about the role tech companies and internet service providers play in monitoring terrorist recruitment and activities. While some terrorists, such as Dylann Roof, who shot nine African-Americans in a South Carolina church, leave blatant manifestos online , others, such as the Islamic State in Iraq and Syria (ISIS) and right-wing groups in Europe, use the internet in more nuanced ways to recruit members and plan attacks. To effectively prevent terrorist activity we need to examine each of these methods.

This is the first in a two-part series about technology, terrorism and human rights. This post will explore how the internet has been used by terrorist groups to recruit members and plan attacks. A second post will discuss the corporate responsibility of tech companies in national security and human rights issues. It will also explore how people are using the internet to combat terrorism and how we can continue to prevent radicalization leading to attacks.

ONLINE RADICALIZATION AND RECRUITMENT

Understanding how technology has transformed the way we communicate is particularly important in an era when internet communication and mass messaging have been used as tools by militant organizations such as ISIS and domestic right-wing terrorist groups to promote their message and recruit new members.

Recruitment methods used by extremist Islamic groups are more nuanced and refined than blatant proclamations to support terrorist organizations. David Mair, a cyber-terrorism researcher at Swansea University, collaborated with the University of Massachusetts’ Center for Terrorism and Security Studies to analyze jihadist messages in online terrorist magazines. He notes there are key differences in ideology that drove messaging – most notably between the Islamic State and Al-Qaeda: while ISIS’ propaganda promotes the creation of a state governed by Sharia law, Al-Qaeda’s message typically focuses on jihad against oppressive western nations and promoting individuals to act alone in planning and executing attacks. These recruitment and attack planning methods are fundamentally different and require separate countering strategies, Mair said.

Muslim extremists have used various types of subtle propaganda to recruit members, such as promoting news stories of Western oppression and disguising extremist sites as religious sites. In an interview with the BBC, Sajid, a 16-year-old student in London whose brother was radicalized discusses how he was almost radicalized too. He opened a fake twitter account to learn more about ISIS after his brother left for Syria to join them. He told BBC over an encrypted chat application that he was surprised that no one in ISIS actually told him to support ISIS or move to Syria. The process of radicalization happened when he watched videos and encountered messages about Sunni oppression. This propaganda is used to incite anger in its viewers and create a community. Sajid said he caught himself becoming “heart-hardened” by this propaganda, but was eventually able to reject ISIS’s message. “After reading about Shia crimes against local Sunnis, I remember watching a video of an execution of an Iraqi soldier and thinking, ‘Good.’ This shocked me afterwards…I questioned my conscience, and my results were that I did not support ISIS with my heart at all,” Sajid said in the interview.

This type of subtle propaganda makes it more difficult to discern and dissuade potential recruits because actual news of attacks can be used as propaganda. Since it would pose a freedom of speech issue to censor these types of news stories, governments have a hard time cracking down on radicalization and recruitment. Monitoring and curbing extremist propaganda becomes even more complicated when it comes to religious messages aimed at recruiting young women and men. Extremists target young adults through websites posing as educational in nature, Sara Khan, Director at the anti-extremist group Inspire, explained to BBC News in an interview. Youth innocently searching for information about their faith can be unaware they have stumbled across extremist groups, Khan said. These recruitment sites often utilize religious language to convince the reader that their view is the proper interpretation of Islam. They exploit religion to recruit youth who have not learned much about their faith and cannot critically analyze the extremist interpretation.

Xenophobia in western countries and promises of a utopian state are other tools used by terrorists to recruit members from the west, Qari Asim, Senior Imam at Makkah Mosque in the United Kingdom, said in an interview with BBC. He recently visited Calais, a make-shift refugee camp in France, and met refugees who fled ISIS-controlled regions. These refugees explained that some young Muslims are leaving Britain to join ISIS because they didn’t feel like they belonged in England. According to Asim, ISIS is running a “sophisticated media strategy” to promote an anti-establishment view that appeals to many young people. He and his group are actively trying to prevent recruitment by utilizing social media strategies to engage with young people and spread truthful messages exposing the unpleasant realities of life under ISIS and combating xenophobia in the west.

Right-wing terrorist groups in Europe and the United States have used similar nuanced methods to spread their propaganda. Right-wing groups use the internet and technology to recruit members, create “virtual communities,” organize demonstrations and campaigns and promote violence. Like religious extremist organizations, these groups are targeting the youth and using the anonymity of the internet as cover. Essentially, they are trying to gain support by promoting “distorted accounts of social circumstances” on the internet, according to a report by the domestic intelligence service of Germany, Bundesamt für Verfassungsschutz (BfV). This report goes on to explain that controversial topics, such as immigration policy, are covered from an ideological point of view, making the intentions of the extremist less obvious to many readers.

Furthermore, right-wing extremist groups are often allowed to organize and disseminate their propaganda without much push-back from the government. In fact, the U.S. government has tended to focus on foreign terrorist threats, despite how domestic terrorism has killed more Americans since 9/11. Especially in the U.S., there is virtually no monitoring of right-wing extremist groups. The wide availability of this right-wing extremist propaganda and manifestos on the internet has led to radicalization and even attacks, such as Benjamin Smith’s shooting spree targeting minorities in Illinois and Indiana in 1999.

MASKING THEIR TRACKS

Extremists are cautious about internet security while using social media, blogs and video sites to recruit members and mobilize. ISIS militants avoid using high-profile communication companies, such as iMessage or WhatsApp, Peter Sommer, a digital forensics expert, told the BBC. Rather, terrorists efficiently find systems that offer its users simple ways to use encryption, a way of encoding messages so that only authorized people can read them, Sommer said. BfV reported that right-wing extremist circles have also started offering internet “security trainings” to teach others how to encrypt data.

Similarly, jihadi bulletin boards are filled with posts about free application add-ons to encrypt messages, Alan Woodward, a security expert, told the BBC. These encrypted messages pose a large hurdle for government agencies trying to monitor extremist activities and prevent attacks. The availability of encrypted systems makes the government security agencies crackdown “absolutely pointless” because terrorist are using off the record protocol, providing them end-to-end encryption, Woodward explained. This means that it is incredibly difficult for anyone, including tech companies providing these services, to intercept and decode the message.

Going after big tech firms would not entirely solve the problem, Woodward said, because even if these companies stopped providing off the record protocol, there are numerous sites providing free add-ons to encrypt messages. Since these encrypted messages are significantly harder to monitor than open manifestos, this has led to a contentious debate between tech companies who provide these services and the government who needs to stop terrorist activities about the responsibility of private companies in the fight against terrorism.

CONCLUSION

From New York to Bombay and Paris to Beirut, we can all fall victim to the devastation caused by terrorism, which poses a significant threat to security, stability and human rights. Our socioeconomic status and borders cannot protect us, leaving us all united under a common threat. The pervasiveness of this threat makes it even more important to understand how we can effectively stop it. This could mean countering the various recruitment methods used by extremist groups or urging the government and tech companies to work together to monitor terrorist activities on the internet. The second post in this series will discuss the debate between tech firms and the government over access to encrypted messages, privacy concerns and collaborative, rights-respecting solutions to some issues posed by 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: Bernardo R/Creative Commons


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Saudi Arabia’s dismal human rights record and the complacency of the international community

By Sarah Ben-Moussa

On Jan. 2nd, 2016, Saudi Arabia executed 47 people, including Sheikh Nimr al-Nimr, a Shiite cleric who was convicted for speaking out against the Saudi Arabian regime and calling for more rights for the country’s Shiite minority. This caused a significant uproar in the human rights community, which was concerned with the use of the death penalty and unfair trials. The executions also escalated tensions with Iran, which condemned the arbitrary nature of the charges levied against al-Nimr, as well as the use of the death penalty.

Ironically, these executions come after Faisal bin Hassan Trad, Saudi Arabia’s ambassador at the U.N. in Geneva, was elected chair of a Consultative Group for the U.N. Human Rights Council at their 30th session in September 2015. Following heavy criticism of this development, the U.N. emphasized that the five members of the Consultative Group were not elected by any U.N. body, but instead appointed by five regional groups and serve in a personal capacity to objectively assess and recommend candidates for U.N. human rights experts positions, for the year in which they are elected. Despite this, Saudi Arabia’s new power to recommend experts and influence the inner-workings of the U.N. human rights framework is disturbing.

In the wake of this recent mass execution, coupled with the irony of Trad’s election to the UN human rights group, a reexamination of the dreadful human rights situation in Saudi Arabia is more necessary than ever. Moreover, more attention must be paid to how the international community treats Saudi Arabia’s continuing human rights abuses with a starting double standard.

SAUDI ARABIA’S RAMPANT HUMAN RIGHTS ABUSES      

Saudi Arabia boasts one of the most dismal human rights records in the world. From gender inequality to lack of freedom of expression and widespread issues in the criminal justice system, the country is far from upholding its international human rights obligations.

Women face systemic discrimination based on their gender and remain subordinate to men legally and in practice. They are inadequately protected against sexual and gender-based violence, and encounter legal difficulties when pursuing claims based on marital issues, divorce, child custody and inheritance. Male guardianship over women (“mehrem”), although it may not be legally prescribed, seems to be widely accepted, severely limiting women’s freedoms, including their right to access education, get married and travel. In addition, women are not allowed to legally drive in Saudi Arabia and are banned from exposing parts of the body.

In the face of this criticism, the state has reaffirmed that their application of Sharia law guarantees fair gender equality and that their legislation does not differentiate between men and women. However, in 2008 (the latest report available online), the Committee on the Elimination of Discrimination Against Women pointed to the failure of the state party to fully incorporate the principle of equality between women and men and to define discrimination on the basis of sex within their legislation, an area that has yet to be addressed.

The criminal justice system in Saudi Arabia is plagued with human rights violations. Since there is no official penal code, judges and prosecutors can criminalize many types of behavior and activities. Many human rights organizations have noted that Saudi Arabian courts fail to respect due process and carry out unfair trails. Authorities arbitrary arrest and detain people for long periods of time, often for longer than six months without trial, in direct violation of the Convention Against Torture (CAT). Children are often detained arbitrarily and placed in detention conditions that do not comply with international standards set forth by the Convention on the Rights of a Child (CRC). Torture or inhumane treatment has reportedly been used to extract the pre-trial confessions, which have been the basis of convictions. Those convicted of crimes may be subject to cruel, degrading or inhumane punishments such as flogging or stoning. Saudi Arabia has also acted in violation of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) by targeting and arresting Shiite leaders and activists, imprisoning them after unfair trials and sometimes going so far as to issue death sentences for advocating for minority rights.

Furthermore, as evidenced by recent executions, freedom of speech, expression and assembly are extremely restricted in Saudi Arabia. Human rights defenders and those who speak out against the government face arrest, imprisonment, torture and execution. Since the government refuses to recognize or register political or human rights groups, citizens have no legal way to set up independent, non-charity organizations.

THE ALI AL-NIMR CASE: A FRIGHTENING EXAMPLE

One case that highlights Saudi Arabia’s problematic record on human rights—and the world’s compliance with the country’s abuses—is that of Ali Mohammed al-Nimr, nephew of recently executed Sheikh Nimr al-Nimr. Like his uncle, the charges upon which he was brought remain unclear—he was arrested for allegedly protesting the Saudi Arabian government when he was 17 years old. Ali al-Nimr, now 20 years old, faces a beheading execution sentence handed down by the Saudi Arabian courts last August. In addition, he has been sentenced to crucifixion after death to serve as a warning to others.

This extreme sentence has become a public representation of Saudi Arabia’s failure to comply with international human rights law. Ali al-Nimr’s sentence has been criticized as a violation of the CRC, which Saudi Arabia has ratified. In addition to this, Saudi Arabia has also been criticized for its failure to investigate reports of torture against Ali al-Nimr, in direct violation of the CAT, which they have also ratified. A group of independent U.N. experts have condemned the ruling, pointing out that unfair methods of torture were used to collect a confession, and called for a fair retrial. Among charges levied against him were being part of a terrorist organization, carrying weapons, and targeting security patrol cars.

There have also been reports that Ali al-Nimr was denied regular access to a lawyer, most notably at the time he signed a confession. The legal remedies he could have pursued, even with representation, are somewhat unclear. As discussed above, there is no formal penal code in Saudi Arabia—Islamic Sharia law is the law of the land and is used by judges based on precedent and the established rules of jurisprudence. There are however, regulations and laws passed by the government to cover broad offenses. Notably, their counter-terrorism laws have criminalized behavior such as “calling for atheist thought” or “contacting any groups or individuals opposed to the Kingdom”, which can be applied retrospectively. Amnesty International notes that the lack of clarity in the laws and judicial system is a violation of the international principle of legality, which provides that criminal liability be limited to clear and precise provisions, as well as Article 11 of the Universal Declaration of Human Rights (UDHR), which protects individuals from being prosecuted for “any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed.”

Despite these blatant issues with Ali al-Nimr’s case, the United States and western allies of Saudi Arabia have remained deafeningly silent about his impending execution and crucifixion.

THE NEED FOR ACCOUNTABILITY

Perhaps the most difficult aspect of holding Saudi Arabia accountable for its human rights violations is the leniency and appeasement of the international community. During their Universal Period Review, the head of the delegation of Saudi Arabia reaffirmed Saudi Arabia’s commitment to respect and promote human rights and support the international mechanisms, particularly the UPR. But mounting evidence continues to show the opposite, especially in the wake of recent executions and the Ali al-Nimr decision. Although there are numerous U.N. reports criticizing the Saudi Arabia, they do not exist in a vacuum, and often times, resolutions and solutions can cave to the political and economic alliances between state parties. Addressing human rights violations within Saudi Arabia continues to be a problem of downplaying and politicking, as was evident when a coalition of mostly Western nations recently abandoned their call for an inquiry into human rights abuses in the conflict in Yemen, when faced with a sizeable Saudi Arabian opposition.

While the Islamic State faces international condemnation for its egregious human rights abuses, including beheadings and torture, similar abuses conducted in Saudi Arabia do not receive the same level of scrutiny from the United States and other western countries, largely because of the energy and security interests involved in Saudi Arabia. Saudi Arabia receives a level of deference to its human rights abuses not afforded to many other regimes on the international stage whose geopolitical and economic situations do not provide strategic value to influential states’ parties.

The numerous human rights violations of Saudi Arabia cannot be accepted as an inevitable truth—they cannot be brushed aside as the byproduct of a religious monarchy, nor can they give way to relationships built upon geopolitical instability and energy. They must instead be vigorously analyzed and pursued, out in the open. It is the imperative that the international community continues to have an open, critical discourse about the Saudi regime, in a way that so many within its borders do not have the freedom to do.

Sarah Ben-Moussa 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: Stephen Downes/Creative Commons


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Exxon’s poker-face: a probe into the oil giant’s deck raises questions about its climate change research, denial and actions

By Meric Sar

An ongoing investigation by the New York Attorney General into whether one of the world’s largest oil-producers misled markets about the risks posed by climate change may prove to be a groundbreaking and watershed moment. As other state and federal authorities are expected to pursue similar actions, it is becoming increasingly clear that the fossil fuel industry is facing a bolder regulatory environment, especially with regard to the integrity of the industry’s marketing and research practices. This trend is particularly meaningful when reviewed in tandem with the Obama Administration’s achievements in steering America and the world towards renewable energy, sustainability and energy independence.

THE INVESTIGATION INTO EXXON

The investigation began with a subpoena issued by Eric Schneiderman, New York Attorney General, to Exxon in early November 2015, requesting a massive discovery of Exxon’s corporate records going as far back as 1970s. The Attorney General is seeking to understand if Exxon breached New York State’s Martin Act by misleading the market and greater public about climate change.

For the prosecutor, a case could be built if enough evidence exists to prove that Exxon actually knew – or reasonably should have known – that climate change is real, but failed to properly disclose this information and its potential implications on the company’s business outlook. Since the risks associated with climate change would potentially hurt Exxon’s stock prices, Exxon may also be accused of causing market-price distortion by concealing this “inconvenient truth” and even orchestrating efforts to re-frame the public opinion, to the extent of substantially influencing “independent” scientific research on global warming.

Several investigative reports by Inside Climate News and the Los Angeles Times spurred Schneiderman’s investigation. These reports allegedly document that in 1970s, when global warming began attracting scientific attention, Exxon “assembled a brain trust [that deepened] the company’s understanding” of climate change. According to the reports, in the late 1980s, the company went into a policy change and adopted a strategy of “climate denial,” manufacturing “doubt about…global warming,” despite the potential research information available to the company that proves otherwise. For years, as a commercial company, Exxon has downplayed the possible effects of climate change-related regulations in public reports to investors by referring to the issue as “uncertain,” “difficult,” or “not possible” to reasonably predict.

FREE SPEECH AND CORPORATIONS 

According to some, lying is an ordinary American pastime, especially in politics, and this investigation represents a cynical and heavy-handed government action to curb free speech in the climate change debate. Yet, Exxon is not an ordinary citizen with a big mouth. Energy companies are savvy Washington juggernauts, and have been historically instrumental in shaping the policy debate and scientific discourse surrounding our understanding of climate change. Today, under a series of laws and court rulings, including the much-debated Citizens United case, corporations enjoy extensive free speech rights, which has been criticized by some as too broad and counter-intuitive to democracy. However, the exercise of political speech by a commercial enterprise can conflict with its other duties towards the market.

Under the U.S. Constitution, even dishonest or misleading political speech is generally accepted to be free, and punishment of people (or corporations) for expressing merely political speech is unconstitutional. However, restriction of free speech is common on various state and federal law grounds, especially in relation to securities fraud. In New York, the Martin Act gives state prosecutors broad powers to prosecute financial fraud, and sets a lower threshold to prove direct harm and causation in comparison to federal laws. The U.S. Securities and Exchange Commission (“SEC”) regulates and prohibits even truthful speech by companies in many situations. A duty of truthfulness about material business information for publicly traded companies is essential to balance the asymmetrical power of influence that the corporations are enjoying in shaping the U.S. politics, especially in the aftermath of the Citizens United.

THE MARTIN ACT OF NEW YORK

The Martin Act is an almost century-old New York state enforcement statute that predates the SEC. Originally, the law only conferred the power to pursue civil suits but was later amended to allow for criminal prosecutions. The Act gives broad powers to state prosecutors in issuing remedial measures to maintain the integrity of the markets. It has been used to stop Ponzi schemes, mortgage fraud and Wall Street abuses in the past. Hence, using it with respect to climate change may play a crucial role in bridging the shortcomings of federal authorities due to the legal constraints on their powers.

In his subpoena to Exxon, Schneiderman is seeking a myriad of documents related to Exxon’s internal research on the causes and effects of climate change, and how this information was used in business decisions, projects, analysis and communications with trade groups. Experts think the issue of what counts as a “material” information will be the decisive factor in the case. Not all undisclosed research is material information that needs to be disclosed to the public if the resulting information is obvious or otherwise generally available to the knowledge of investors. This, of course, entails another question: whether Exxon or other similarly situated energy companies are in a unique position, holding certain information that is not available to the rest of the world on the issue of climate change.

Exxon embraced the need to curb greenhouse gases in 2006, following the company’s change in its chairman and CEO. Since 2009, the Texas-based company has advocated for a revenue-neutral carbon tax as the fairest way to cap harmful emissions. According to the General Counsel of Exxon, the “[company] scientists have been involved in climate research and related policy analysis for more than 30 years, yielding more than 50 papers in peer-reviewed publications.” Its scientists have participated in the United Nations Intergovernmental Panel on Climate Change since its inception and were involved in the National Academy of Sciences review of the third U.S. National Climate Assessment Report.

Despite the rosy picture Exxon tries to paint, many environmental organization take issue with Exxon’s climate denial activities. In a 2007 report, the Union of Concerned Scientists accused the company of financing “a sophisticated disinformation campaign…to deceive the public” about global warming. The report argues that Exxon Mobil gave $16 million to 43 groups that preached climate change skepticism from 1998 to 2005. If Exxon knowingly lied or downplayed the risks of climate change to the public or investors, as the 2007 report argues, they may have broken the law.

RISE OF A GREENER REGULATORY CULTURE?

The current probe comes after the New York Attorney General Schneidermann reached a settlement with the largest U.S. coal mining company, Peabody Energy, after the company was accused of misleading investors about the financial risks of climate change. In the settlement, Peabody agreed to include more comprehensive disclosures in its disclosures to the market about the potential costs of climate-related regulations. Settlements such as this – although do not represent a binding judicial authority – reflect a growing consensus and a pattern of self-correcting behavior among the high echelons of the American economy, which is gearing up for a sustainable energy future.

A discussion on the causal link between climate change and the fossil fuel industry often slips away from having its day in the courtroom. A judicial inquiry into the truth of global climate change as a fact has been thus far too elusive for the courts to handle despite widespread consensus among the scientific community about the anthropogenic climate change. The magnitude of the phenomenon defies a conclusive study, and the divisive nature of the surrounding public debate moves the courts to defer to a regulatory culture that has been traditionally protective of the global interests of U.S. and global energy conglomerates – an industry that has been a historical stalwart of the U.S. economy. Whether this investigation ends in a trial or not, big changes may be on the horizon.

Meric Sar 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: Mike Mozart/Creative Commons


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Czech Republic: the refugee crisis and systematic human rights violations

By Sarah Ben-Moussa

As refugees travel to Europe in search of sanctuary, some have been crossing through the Czech Republic, which is often merely a passing point on the way to other parts of Europe, such as Germany or Sweden. The Czech Republic received over 1,350 asylum requests through November 2015, a small figure compared to Germany’s 1.1 million asylum seekers in 2015. Notwithstanding this fact, refugees passing through or requesting asylum in the Czech Republic often face detention, arbitrary fines, lack of access to justice and widespread xenophobia.

SYSTEMIC ABUSES

On Oct. 22, 2015, Zeid Ra’ad Al Hussein, the High Commissioner for Human Rights, criticized the Czech Republic for systematic violations of the human rights of refugees attempting to cross through the Czech Republic on their way to Germany.

Refugees face detention for up to 90 days, and are sometimes fined 250 CZK (10 USD) to finance their own detention, he said. Refugees have also reportedly been strip-searched on a regular basis and any money on their persons has been confiscated. In the first nine months of 2015, over 7,000 refugees were detained by the Czech government, most for 90 daya.

Conditions in detention centers, particularly in the Bela-Jezova center, are “worse than a prison”, according to the Czech Justice Minister, Robert Pelikán. Anna Sabatova, the Czech Ombudsman, reiterated this criticism, and warned that children risked being traumatized while in detention by the constant presence of armed guards, who often degraded refugees in front of their children. Moreover, the Czech Ombudsman has noted that the treatment of children in these centers violates the U.N. Convention on the Rights of a Child, to which the Czech Republic is a party. The Committee on the Rights of the Child itself has also criticized the detention of children and minors based on the migration status of their parents as a violation of international law, which the Office of the High Commissioner on Human Rights also emphasized in its statement.

Legal reprieve is often also hard to obtain. Although the High Commissioner noted that there have been refugees who have challenged their detention and prevailed, he said that many were not in a position to seek judicial remedy, due to lack of information about their right to free legal aid and the restricted access of civil-society groups in some detention facilities. In November 2015, refugees in one detention center went on a hunger strike in protest of the long detention times and the possibility of being repatriated to their home country.

Furthermore, Czech President Miloš Zeman has repeatedly made xenophobic comments against refugees, contributing to a toxic atmosphere in a country where 70 percent of the population opposes the arrivals of refugees, according to a 2015 poll. President Zeman has gone on record warning against the influx of refugees, arguing that refugees will bring Sharia law with them, endangering Czech society. “The beauty of our women will be hidden, as they’ll be forced to wear burkas,” Zeman said. He was quick to add, “Though I can think of some for whom this would be an improvement.”

In December 2015, Zeman called the refugee influx an “organized invasion” of Europe, and called on refugees to stay in their home countries to fight the Islamic State. And in January 2015, Zeman said that it is “practically impossible” to integrate Muslims into European society, and that the surge of refugees was planned and coordinated by the Muslim Brotherhood of Egypt in an effort to gain control of Europe. These comments have spurred violence against refugees in the Czech Republic, drawing condemnation from the Czech Prime Minister Bohuslav Sobotka.

CZECH RESPONSE TO CRITICISM

In response to international criticism, Czech Interior Minister Milan Chovanec stated that he disagrees with the U.N. that Czech policies violate human rights law. He added that conditions have been improving and said that the High Commissioner was welcome to come to the Czech Republic and examine the situation.

The President’s office, however, was much more defensive, responding to the U.N. criticism via Facebook, and posting that the “verbal attack” by the OHCHR was not the first, and was part of an “intensifying” campaign against the Czech Republic. The spokesman for his office later added that the President stands by his opinion and will not change his mind due to pressure abroad.

It should be noted, however, that the President does not hold a large amount of policy power, and instead functions as a ceremonial head of state. Although they do not use the same inflammatory rhetoric, the center-left government of the Czech Republic still remains the only state currently detaining refugees and migrants for such long periods of time. They also faced criticism from human rights advocates and Jewish groups in 2015 for numbering refugees as they arrived off of trains, a practice with deep historical ties to the Second World War. They quickly abandoned the practice after the backlash.

A BETTER WAY FORWARD?

The Czech Republic has been defiant in its stance on refugees, denying any human rights violations. The lengthy detention of refugees and the dehumanizing treatment they face serves no legitimate purpose but to degrade refugees and create an additional obstacle in their already difficult journey to safety. As Europe braces for more refugees in 2016, the question is if the Czech Republic will continue adhering to its policies that fly in the face of international law and human rights standards, or seek a new, rights-based way forward.

Sarah Ben-Moussa 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: Lukas Krasa/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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The fight for paid internships at the United Nations

By Sarah Ben-Moussa

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Scattered shoes are displayed at the steps of the United Nations Headquarters in New York as a show of solidarity with interns and young people who are underrepresented around the world. Credit: Sarah Ben-Moussa

On Nov. 10, 2015, a group of unpaid interns, led by the Fair Internship Initiative (FII), demonstrated outside the United Nations Headquarters in New York City in recognition of International Interns Day. As a protest against the United Nations practice of hiring unpaid interns, the group staged a flash mob.

Attendance was uncertain, given the reports of rain for that day, but in the end, approximately 20 interns gathered outside, umbrellas in hand, in front of a row of scattered shoes. They each held signs that collectively spelled out “unpaid is unseen,” a phrase that has been gaining traction in the international intern sphere. In an interview with Alessandro Greppi, an organizer with FII, he explained that the phrase alludes to the lack of representation at the U.N. of young people in developing countries who cannot afford individually to finance an unpaid internship, and whose home states cannot afford to send them. The image of scattered pairs of shoes, similarly, was meant to symbolize all of the young people that were unable to represent themselves.

After the gathering, the interns made their way into the General Assembly building, where they were allegedly stopped by security, who asked them to put away their signs, as protesting is prohibited inside the U.N. itself. Vice News reported that two security guards from the U.N.’s Emergency Response Unit also demanded that the pictures taken by Vice be deleted.

Later that evening, FII hosted a panel on youth employment featuring Ahmad Alhendawi, the Secretary General’s Envoy on Youth; Bettina Hasel, Human Resources Specialist in the UNICEF New Talent Team; Elizabeth Niland, Social Affairs Officer of U.N. Focal Point on Youth; Ian Richards, President of Staff Unions and Associations; and several other representatives and consultants. The panel covered the issue of remuneration for interns, but also focused heavily on other reforms for interns, including reforming the de-centralized nature of internships within the U.N. and the possibility of a scholarship fund for candidates unable to pay their way through the program. Protests against unpaid internships and programs such as these have gained more attention over the past year.

THE RISE OF INTERNATIONAL PROTESTS

The practice of unpaid internships has invigorated protests since news of David Hyde, a 22-year-old intern living in a tent in Geneva this summer, made international headlines. The story was later found to be staged, in an effort to create a documentary on the struggle of unpaid interns. But, many have claimed that the reality is not far off, with demonstrations on International Interns Day taking place around the world in cities such as Geneva, New York, Melbourne, Paris, Chennai, Brussels and Trento. Students and interns have mobilized all over, arguing that unpaid internships at the U.N. go against the very values of the U.N., including non-discrimination and equality.

One of the organizations borne out of the global movement is the Fair Interns Initiative. It started as a weekly meeting of interns, and has quickly gained traction since the summer of 2015, with as many as 30-40 interns attending weekly events In an effort to clarify their demands, the FII specifies in its mission statement that they are seeking needs-based allowances or stipends for interns who are not funded by their university or another institution, fair and equal representation of interns and an intern focal point in the Office of Human Resources Management (OHRM). Their main focus is on securing these policy changes at the United Nations, given its prominence in the international field. They hope an organization such as the United Nations can set a precedent, which many other organizations can follow.

In the meantime, as long as internships remain unpaid, FII said they wish to see a change in the visa granted to interns so they at least may seek part-time work in supporting themselves in their host country, as well as a possibility for basic health insurance provided by the U.N. However, their long-term goal remains the eventual remuneration of interns.

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“Unfair, unpaid, is unseen” has become a mantra among the movement for the remuneration of interns, invoking the notion of equal work for equal pay, as well as contesting the representation bias present in many international organizations. Interns gathered outside of the United Nations Headquarters in Geneva Switzerland, to protest the U.N. practice of unpaid internships. Photo courtesy of ILO Intern Board.

VIOLATING U.N. LAWS AND PRINCIPLES

In an interview with FII, Greppi said that the U.N. is failing to uphold the principle of non-discrimination, as articulated in the International Covenant on Economic and Social Rights (ICESR). There is a stark disparity in representation in the U.N. internship program, with most interns hailing from Europe, according to a 2015 report by the Secretary General. By offering only unpaid internships, the U.N. has created a de-facto restriction to internships, limiting access to those who can afford to do unpaid work or are lucky enough to secure outside funding, which tends to be individuals who are either from more affluent or developed nations.

Aside from violating the principle of non-discrimination, FII argues that the unpaid internship program violates the U.N. Charter and the Universal Declaration of Human Rights (UDHR). Specifically, FII wrote in a joint letter to Secretary Ban-Ki Moon on Aug. 14, 2015 that the program violates Article 8 of the U.N. Charter, which states that, “the United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.” They argue that the U.N. internship policy places an “indirect restriction” on qualified young people, creating a structural barrier for many. Additionally, they also cite Article 23 of the Universal Declaration of Human Rights, which states that, “[e]veryone, without any discrimination, has the right to equal pay for equal work” and that “everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” Thus, the exclusion of interns under this umbrella is a direct violation of the UDHR, FII said.

In response to the letter and its arguments, the Office of the Secretary General issued a response, explaining that the conditions of service fall into the purview of the General Assembly, and that any change to this policy would require a vote of the majority of the General Assembly.

BALANCING LEARNING WITH COMPENSATION 

Despite the backlash against unpaid internships, many have touted the benefits of these experiences. For one thing, there is a tangible benefit gained in experience and connections made through internships, a hiring practice that has existed for several decades. A letter from the U.N. Office of the Secretary-General in response to FII highlighted the fact that while there is no financial compensation, the internship program was designed to enhance the educational experience of interns and allow students to interact with other professionals and interns. The value of first-hand experience in an organization is one that should not be understated.

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Scattered shoes are meant to represent the many young people who are unable to represent themselves, says FII. Photo courtesy of ILO Interns Board.

However, in a world where organizations and companies are increasingly relying on unpaid interns to simply get work done, unpaid internships can be exploitative. They can displace paid employees, have interns performing menial tasks and not be beneficial in the employment search process. In the U.S., the Second Circuit Court of Appeals explored how unpaid internships at for-profit companies could be regulated in the landmark ruling, Glatt v. Fox Searchlight Pictures. The court ruled that unpaid internships are legal so long as the interns are the “primary beneficiary.” Among the factors to be considered in making this evaluation, the court highlighted that companies should consider the extent to which internships are tied to an intern’s formal education, the receipt of formal credit and if interns’ work complements or displaces paid employees’ work. Although this ruling may pose a set of problems (i.e. overlooking type of work and overall educational status) and it only applies to the for-profit sector, the legality of unpaid internships in the United States could serve as a standard or starting point for the U.N. and international community, especially in the wake of recent international unrest over unpaid internships, and increasing pressure on member states in the General Assembly to act.

Within the context of the U.N., most internships are offered to those who have obtained or are currently pursuing graduate degrees. While many gain a benefit from the learning experience offered by the U.N., it is often outweighed by the inability of interns to transition out of the intern sphere. Specifically, many interns, both in the U.N. and in other spheres, are facing a barrier to enter the workforce through the existence of what many have deemed to be “perpetual internships,” exchanging one internship for another, often without financial compensation, well beyond an affordable amount of time. With recent budget cuts to U.N. staff, it is even more unlikely that the U.N. will be expanding its entry-level recruitment. In fact, in light of these staff cuts, and without a central regulating mechanism for its internship program, it calls into questions the amount of work interns are expected to complete, and where the line between a learning experience and entry-level type work begins. Further complicating the transition is the fact the U.N. has a six-month hiring freeze, preventing interns from being hired for at least six months after they complete their internship, a practice FII is pushing to eliminate.

Many have argued that unlike multi-million dollar companies, the U.N. does not have the financial resources to pay its interns. While the idea that the U.N. is strapped for resources is not a new one, the inherent problem is the organization’s willingness to paint internship remuneration as a frivolous expense, rather than just compensation for labor. The United Nations, especially in the light of its recent staff cuts, thrives on its internship program, employing over 4,000 interns worldwide. Just compensation for labor should be the U.N.’s first priority.

CHANGES FOR A MODERN JOB MARKET

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In honor of International Interns Day, the ILO Interns Board, in conjunction with the Geneva Interns Association, held a panel discussion on the issue of unpaid internships at the International Labor Organization Headquarters in Geneva, Switzerland. Photo courtesy of ILO Interns Board.

A modern jobs market needs a modern approach to internship programs. The United Nations, and many other organizations, needs to fundamentally restructure their internship practices in order to keep pace with the changing job market and the needs of young professionals. It must shift from its practice of ad-hoc unpaid internships, to a far more regulated and centralized paid program, to prevent abuses in the program and to obtain the greatest benefit for both parties.

In reality, this shift may lead to a drastic decrease in the number of interns the organization is able to employ, both due to monetary concerns but also due to the legal difficulty in moving so many young professionals to new countries for such short and frequent periods of time. Paid internships means fewer internships, and fewer internships means more competition. However, this is not necessarily a bad thing. The benefit imposed from creating a more competitive environment for interns ensures the most talented young professionals are being drawn to the organization, a long-term value that the organization has not calculated into their analysis. Additionally, opening the doors to increased representation of developing countries gives a value to the organization, both in perspective and in legitimacy.

The legality of unpaid internships continues to be a hot button topic both within the borders of the United States and in the larger international sphere. The United Nations is at a crucial juncture—its stance on the nature of unpaid internships sets the tone for many states. As an example of the principles and norms in the international community, they bear a responsibility in setting precedent like no other organization. The choice on what to do with that responsibility is in their hands.

Sarah Ben-Moussa 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.

Header Photo Credit: Sarah Ben-Moussa