Rights Wire

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


Leave a comment

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

By Elizabeth Gyori

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

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

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

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

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

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

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

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

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

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

Elizabeth Gyori is the Editor of Rights Wire.

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

Photo Credit: Steve Rainwater/Creative Commons

Advertisements


1 Comment

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

By Sreelatha Babu, Denis Nolasco and E. Constantinos Pappas

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

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

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

HUMAN RIGHTS AND LABOR VIOLATIONS IN THE THAI SEAFOOD INDUSTRY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Photo Credit: Rienk Nadema/Marine Stewardship Council/Creative Commons


Leave a comment

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


Leave a comment

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


Leave a comment

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


Leave a comment

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


Leave a comment

The fight for paid internships at the United Nations

By Sarah Ben-Moussa

image2

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.

Geneva 1

“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.

Geneva 4

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

Geneva 3

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