International Labor & Employment Law

Child trafficking in the fishing industry on Lake Volta

/ Juli King / Leave a comment

Challenging Heights is an anti-trafficking, anti-slavery, children’s rights NGO located in Winneba, Ghana, approximately an hour and a half outside of Accra, the capital. Inspired by the president and founder’s own experience being trafficked and enslaved as a child, the organization serves source communities, which are communities where children are trafficked from, in order to achieve its strategic goal of ending child trafficking in the fishing industry in Ghana in five years and ending child slavery in the fishing industry in Ghana in ten years.

 

During the Advocates Program, Challenging Heights provided an in-depth overview of every aspect of the organization. Each day, I was amazed by the breadth (and depth) of the organization’s programs. Not only does Challenging Heights rescue children from Lake Volta, rehabilitate them in a shelter, reintegrate them with their families and monitor them after reintegration, it also provides livelihood support to reintegrated children’s families as well as other vulnerable children’s families, conducts a youth empowerment program to tackle the root cause of poverty, campaigns against corporal punishment and child marriage, conducts alternative dispute resolution with slave masters to make sure children are given what they are owed for their labor, distributes 80,000 Tom’s shoes a year to schoolchildren, supports education with its newly independent Friends International Academy, conducts research projects on issues connected to its programs, and advocates for children’s rights locally, nationally and internationally.

 

The passion of the staff members of Challenging Heights layered each and every session throughout the Advocates Program. The communications officer, in the campaign against child marriage, hands out flyers that include her personal phone number so that people in danger of being married as a child or who know a child in danger of being married can call her for help. The rescue team risks their own lives to go out on the lake to rescue trafficked and enslaved children from slave masters. The shelter manager reminded us of the realities and challenges of shelter life, but when asked about her greatest success said, “Every single day when I see children laughing it’s a success. Even when they are crying, it’s a success because they can express their emotions”.

 

Despite the dedication and passion of Challenging Heights and its staff, slave masters and traffickers continue to traffic and enslave children without legal repercussion. In 2016, there were no convictions under Ghana’s anti-trafficking law, due to insufficient resources devoted to collecting evidence which hinders investigations according to the State Department.  Challenging Heights staff was certain Ghana would be moved to the Tier 3 watch list for trafficking in persons this year due to the government’s lack of action. However, the State Department granted Ghana a waiver because of a written plan that would have an impact if implemented. The Trafficking in Persons watch list levels are based on minimum standards for the elimination of trafficking in persons the US State Department created.

 

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UN Special Rapporteur issues report on workers’ human rights to freedom of association and peaceful assembly

/ Tequila J. Brooks / Leave a comment

image-of-worker-rights-posterUN Special Rapporteur Maina Kiai presented his report on the rights to freedom of peaceful assembly and association in the workplace to the UN General Assembly on October 20, 2016.

The Special Rapporteur on the rights to freedom of assembly and association was created in October 2010 by UN Human Rights Council Resolution 15/21 and renewed in September 2013 (UN HRC 24/5) and September 2016 (UN HRC 32/32).  The current Special Rapporteur Maina Kiai has been serving since May 2011.

General Assembly Report A/71/385 examines the rights to assembly and association in the workplace with a special focus on the most marginalized – global supply chain workers, informal workers, migrant workers and domestic workers.

In remarks made on October 21, Maina Kiai recounted how years before, his human rights NGO in Kenya attempted to assist local workers but encountered friction from the local trade union.  It is thus no surprise that the Special Rapporteur calls for obliteration of “the antiquated and artificial distinction between labour rights and human rights generally.  Labour rights are human rights, and the ability to exercise those rights in the workplace is a prerequisite for workers to enjoy a broad range of other rights, whether economic, social, cultural, political or otherwise.”

The report outlines the international legal framework establishing the principle that Worker Rights are Human Rights.  The rights to peaceful assembly and association are recognized in Article 20 of the Universal Declaration of Human Rights.  They are recognized as first generation human rights in Articles 21 and 22 of the International Covenant on Civil and Political Rights – with Article 22 specifically including “the right to form and join trade unions” within the right to freedom of assembly.

The International Covenant on Economic, Social and Cultural Rights recognizes the rights to assembly and association as second generation human rights.  Article 8 of ICESCR recognizes the rights for individuals to form and join trade unions and for trade unions to create and join national and international federations.  Article 7 of ICESR recognizes other work-related rights as human rights, including:

  • fair wages that guarantee a decent living for workers and their families;
  • equal pay for work of equal value
  • equitable working conditions for women and men;
  • safe and healthy workplaces;
  • equal opportunity in the workplace;
  • rest, leisure and reasonable limits on working hours; and
  • paid vacation and holidays.

The rights to freedom of association and collective bargaining are also enshrined in ILO Conventions 87 and 99.  They are foundational rights essential to the protection of core labor rights in the 1998 ILO Declaration on Fundamental Rights at Work, so States must respect them whether or not they have ratified these 2 conventions.  The Special Rapporteur observes that the Right to Strike has been established in international law for decades and has in fact become customary international law.

States must respect, protect and fulfill the rights to freedom of assembly and association.  States must ensure full enjoyment of these rights for both women and men under Article 4 of the Convention on the Elimination of All Forms of Discrimination against Women.  Many women around the world are excluded from protection under national labor rights regimes because they work in the informal economy.  An estimated 60.7% of the world’s workers toil in the informal economy, where employment relationships are not legally regulated.

Others excluded by law from protection in many countries include migrant, domestic and agricultural workers.  Report A/71/385 declares unequivocally that States that discriminate against or exclude certain groups from protective legislation violate their obligations to respect and protect the rights to peaceful assembly and association.

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families recognizes human rights standards protecting migrant workers.  For both authorized and unauthorized migrant workers, exclusion from legal protection and lack of assembly and association rights are compounded by harsh immigration laws and unscrupulous labor recruitment organizations.  The report points to guest worker programs in Bahrain, Kuwait, Oman, Saudi Arabia, Qatar, the United States, the U.K. and Zimbabwe that legally and structurally deny migrant workers’ rights to assembly and association.  Workers in these programs who attempt to exercise their rights risk being blacklisted, deported, evicted, denied future visas, threatened with violence and physically assaulted.

Violence – including gender- and racial or ethnic-based violence – is frequently used by States and others to deter the exercise of rights to freedom of peaceful assembly and association.  In 2015, trade unionists were murdered in 11 countries – Chile, Colombia, Egypt, El Salvador, Guatemala, Honduras, Iran, Mexico, Peru, South Africa and Turkey.

The Special Rapporteur issued recommendations not only to States, but to Businesses, the ILO, the United Nations and multilateral financial institutions like the World Bank and IMF as well as to trade unions and civil society.

Key among those recommendations to States are:

  • ratification of relevant international and human rights instruments;
  • taking measures to ensure that workers in vulnerable situations have the ability to fully and effectively exercise their rights to freedom of assembly and association;
  • prohibiting companies that fail to respect those rights from bidding on public contracts; and
  • protecting and promoting the assembly and association rights of migrants.

Businesses should:

  • commit to the principle that labor rights are human rights;
  • respect the rights of workers to form and join trade unions and engage in collective action;
  • engage in collective bargaining;
  • refrain from anti-union practices and policies; and
  • implement the Guiding Principles on Business and Human Rights.

The ILO should:

  • set standards to extend rights to freedom of association and collective bargaining to informal workers; and
  • focus on governance gaps for workers in global supply chains.

The UN and MFIs should:

  • consult with trade unions and worker organizations to ensure that assembly and association rights are promoted and protected in their policies and programs.

Civil society and trade unions should:

  • create alliances to monitor the effective implementation of the Rapporteur’s recommendations;
  • commit to the principle that labor rights are human rights; and
  • continue to advocate for equal opportunity to present their views to governments and businesses.

Finally, trade unions should:

  • specifically target outreach and advocacy toward the historically disenfranchised, including domestic, migrant and informal workers.

 

 

Violence against trade unionists, application of labor laws at issue in Colombia’s bid for OECD membership

/ Tequila J. Brooks / Leave a comment

In July 2016, the U.S. Department of Labor accepted the first labor petition filed under Chapter 17 of the U.S.-Colombia Trade Promotion Agreement (TPA).  Filed by Colombian trade unions and the AFL-CIO, the fundamental argument of the petition is that the Government of Colombia failed to meet its commitments under the 2011 U.S.-Colombia Labor Rights Action Plan (LAP) which were a pre-condition for the U.S. to extend preferential trade benefits to Colombia.  USDOL’s public report on the petition is due in January 2017 unless USDOL determines more time is necessary.

Critical among those commitments were (a) effective implementation a new legal framework to investigate and punish threats and violence against trade unionists; (b) putting a stop to employers’ use of intermediaries and certain types of employment contracts to chill representative trade unionism and avoid compliance with labor laws; and (c) ensuring that labor inspection, administrative and dispute resolution processes respond to worker complaints and deter employer violations.  Over 2,500 trade unionists have been murdered in Colombia since the 1980s.  These murders and threats did not stop after the U.S.-Colombia TPA went into effect in 2012.

A lot is at stake this year for Colombia.  Not only did the Government of Colombia and FARC agree to a Peace Accord ending the 52-year-old Civil War, but Colombia is being considered for accession to the Organization for Economic Development (OECD), where it would join Mexico and Chile as the only Latin American members.

Many of the labor-related commitments the Government of Colombia made during TPA negotiations are also required for accession to the OECD.  If USDOL’s Chapter 17 report confirms petitioners’ allegations, Colombia could be subject to international dispute resolution and lose trade benefits under the TPA – and could jeopardize Colombia’s bid to become a member of the OECD.

The OECD formally launched Colombia’s accession process in October 2013.  This rigorous process subjects Colombia to assessment under 250 legal instruments and formal evaluation by 21 separate committees, including the Employment, Labor & Social Affairs Committee.

The OECD’s Roadmap for Colombia’s accession outlines several labor-related policy goals to be met, including:  improvement of labor market opportunities for women, youth, older people and the unskilled; a financially and socially sustainable retirement and social support system; assistance for the poor and out of work; and better management of migration flows to foster integration of immigrants and their children.  Critically, the Roadmap calls for Colombia to implement policies to ensure effective governance of the labor market and to “ensure the full respect of labour rights, with a particular focus on the rights and safety of trade union representatives” (p. 18).

The OECD released its review of Colombia’s Labour Market and Social Policies in January 2016. Much of the OECD’s analysis mirrors the issues raised by Colombian unions and the AFL-CIO in their USDOL petition.  Three of these areas are: (1) inadequate protection of trade unionists from ongoing threats and violence; (2) shortcomings  in labor law administration and enforcement, including weak labor inspection and fine collection processes; and (3) the tendency among Colombian employers to utilize civil law contracts so workers do not benefit from rights in the Colombian Labor Code and making it difficult for workers to effectively organize independent trade unions and bargain collectively.

The OECD observes that 20 trade unionists were murdered in 2014 and that there were over 300 assaults, threats, harassment and other kinds of violence perpetrated against trade unionists that same year.  The OECD cites conflicting reports about the motivation for murders of and violence against trade unionists – whether as a result of their role as trade unionists or local leaders standing up to armed groups – but emphasizes that improved prosecution of the crimes in close contact with trade unions during investigation would promote greater clarity as to why the violence occurred.  While the Colombian protection program for trade unionists has improved, the program faces a number of challenges such as budget cuts, a lengthy and laborious process for assessing threat risk against trade unionists and corruption scandals that demonstrate inadequate controls.

In addition to discussing and assessing fundamental labor rights issues, the OECD’s review of Colombia’s labor and social policies highlights the country’s need for better social security (including unemployment) policies that are more broadly applied.  Over 52% of Colombia’s workforce is self-employed, with 83% in unregistered businesses not covered by social security.

Observing that comprehensive reform to the Colombian social security and pension system is required, the OECD highlights a number of specific policy recommendations to incentivize more Colombians to participate in social security.  Only about 35% of the Colombian population in retirement age receives a pension – in contrast to 90% on average in the OECD.  Acknowledging Colombia’s introduction of a new unemployment protection system, the OECD notes that the system is underfunded and provides limited support to job seekers.

Many of the structural labor market issues noted by the OECD such as informal work and non-participation in the social security system have a bigger impact on women than men.  Despite the fact that female labor market participation in Colombia has increased over the last few decades, 20% of women aged 16-24 are not active in the labor market or studying (Not in Employment, Education and Training or NEET) compared to 1% of men.  In addition to higher unemployment rates than men and lower participation in formal employment, women in Colombia suffer from a “large and persistently stable gender pay gap” (p. 16).  Fewer women receive health protection or contribute toward a retirement pension so look forward to poverty in their old age.   Laws were passed in Colombia in 2010 and 2011 to make sex discrimination in pay unlawful and extend maternity leave from 12 to 14 weeks, but many Colombian women do not benefit from these protections because they work in the informal sector.

Critics have argued that the Government of Colombia may not be ready for or be deserving of OECD membership or special access to markets and free trade benefits because of ongoing human and labor rights violations.  This may be true.  The Colombian case shows that OECD and U.S. conditionality can contribute to a safer and better society in Colombia though many challenges remain.

A critical assessment: Can Export Processing Zones be transformed into catalytic enclaves for Women’s Economic Empowerment?

/ Tequila J. Brooks / Leave a comment

In 2011, the International Finance Corporation (IFC) partnered with the World Bank Gender Action Plan and the Government of Canada to publish a study positing the rather novel idea that Special Economic Zones (SEZs – more commonly known as Export Processing Zones or EPZs) might serve as a vehicle for women’s economic empowerment.

The study, entitled Fostering Women’s Economic Empowerment Through Special Economic Zones, provides a comparative analysis of SEZs in eight countries (Bangladesh, China, Costa Rica, Egypt, El Salvador, Jordan, Kenya and the Philippines) and discusses different SEZ initiatives (as well as opportunities and obstacles) that have been developed to contribute to the economic empowerment of women.  The IFC argues that SEZs can contribute to women’s economic empowerment through three dimensions:  (1) fair employment and working conditions; (2) equal access to opportunities for professional investment; and (3) extension of investment opportunities for women.

My recent working paper, A critical assessment:  Can Export Processing Zones be transformed into catalytic enclaves for Women’s Economic Empowerment, considers this novel idea from an international employment and women’s rights perspective.

The idea that EPZs might be utilized as instruments to improve working women’s lives is counter-intuitive.   EPZs have a reputation for sub-standard working conditions and exploitation because they are frequently exempted from local labor laws and other workplace protections.  They are also considered to be a sub-optimal economic development mechanism by the OECD and others.  On the other hand, the IFC’s study points to a number of examples of innovative programs that can be adopted by EPZ administrators – and contains enough frank analysis of obstacles to using EPZ governance structures to empower women – to make its recommendations worth considering.

After assessing the IFC’s idea in light of recent literature discussing the challenges facing workers in EPZs, I come to a somewhat guardedly optimistic conclusion that SEZs and EPZs might serve as a vehicle for policies and programs designed to empower women – but only if EPZ administrators and policy makers change attitudes about independent trade unions and work in partnership with workers, representative trade unions and women’s rights organizations.

Technology for Accountability Lab MOOC

/ Beth Van Schaack / Leave a comment

 

The Program on Liberation Technology (LibTech) at Stanford’s Center on Democracy, Development and the Rule of Law together with the National Democratic Institute (NDI) are proud to launch a free massive open online course dubbed “Technology for Accountability Lab.”

The course is geared for global democracy activists, software developers and other stakeholders to conceptualize, plan and implement technological tools and advocacy strategies to improve transparency by opening political and governmental processes.

This 10-week course – which starts on August 9, 2016 – will feature video lectures by Stanford professors Terry Winograd and Larry Diamond, as well as lecturers from NDI, Transparency International, Sunlight Foundation, Creative Commons, ProPublica, and other experts.

To to learn more about the course and register, visit the course link. Please share this announcement widely with interested participants and professional networks (#TFALAB).

Beyond Survival: Livelihood Strategies for Refugees in the Middle East

/ Jaya Ramji-Nogales / Leave a comment

What can be done static1.squarespace.comto improve the lives of Syrian refugees in Jordan, Lebanon, and Turkey?  A terrific interdisciplinary conference I attended last November at Cornell Law School, entitled Beyond Survival: Livelihood Strategies for Refugees in the Middle East, engaged with that question from a variety of perspectives, focusing on the pressing issues of employment and education.  Jointly organized by the Prof. Chantal Thomas of the Clarke Initiative for Law and Development in the Middle East and North Africa, Dean Eduardo Penalver and Associate Dean Laura Spitz of Cornell University Law School, Dr. Josyann Abisaab and Dr. Satchit Balsari of Weill Cornell Global Emergency Medicine Division, and Prof. Mostafa Minawi of the Ottoman and Turkish Studies Initiative, this was the first extended academic conference at a U.S. university to focus on the situation of Syrian refugees.  The conference brought together anthropologists, demographers, doctors, economists, education experts, historians, legal academics, public health experts, technologists, and UN headquarters and field staff from the region to discuss the current situation on the ground and potential strategies for improving access to jobs and schools.  Several speakers, including the UNHCR Representative in Jordan, had recently worked in and/or conducted research in refugee camps in Jordan and Lebanon, and were able to provide timely, detailed, and comprehensive information about the numerous challenges facing the refugee populations in those countries.  A report summarizing the conference proceedings, including this information and expert analysis from a variety of fields, has just been made available here.  The goal of the report is to set research priorities for academics and research institutions “seeking innovative, evidence-based solutions” and to encourage dialogue and engagement among students and faculty at university campuses to meet the urgent needs of Syrian refugees, and to think more broadly about “our obligations to people beyond our borders.”

Go On! International Law Weekend 2014: Call for Panel Proposals

/ Karen Hoffmann / Leave a comment

In anticipation of International Law Weekend 2014 – the premier international law event of the fall season, to be held on October 23-25, 2014, in New York City – the sponsors would like to invite proposals for panels, roundtables, and lectures by March 21. The overall theme of ILW 2014 is International Law in a Time of Chaos.

About ILW

ILW is sponsored and organized by the American Branch of the International Law Association (ABILA) and the International Law Students Association (ILSA). This annual conference attracts an audience of more than 1,000 practitioners, academics, diplomats, members of the governmental and nongovernmental sectors, and most importantly, foreign policy and law students who are learning about the range of practice and career opportunities.

Call for Proposals

The theme — hopefully not too disheartening — is “International Law in a Time of Chaos.” The role of international law in conflict mitigation is  a focus  – whether by building commercial links between states, fighting corruption, improving democratic governance, providing methods for resolving international and ethnic disputes, or regulating the use of force.  International Law Weekend 2014 will seek to address the role of public and private international lawyers in each of these tasks.

Panel proposals may also concern any other aspect of international law, including trade, investment, arbitration, intellectual property, combating corruption, labor standards in the global supply chain, and human rights, as well as issues of international organizations and international security.   We are also interested in panel proposals that are of particular interest to practitioners.  Alongside a broad array of public international law topics, we will have dedicated tracks of private international law topics in each program slot.

The ILW Program Committee invites proposals to be submitted online by Friday, March 21, 2014.

Please provide a title, brief description of the topic, and the names, titles, and affiliations of the chair and likely speakers – but also describe what you think would be the most engaging and exciting format, including ways to enhance participation by the audience.  Varied formats, such as debates, roundtables, lectures, and break-out groups are encouraged, as well as the more familiar genus of of panel presentations.

One of the objectives of ILW 2014 is to promote conversations among scholars and practicing lawyers; so formats should include presenters with diverse experiences and perspectives.

ILW 2014 will open with a Great Hall program  at the Association of the Bar of the City of New York at 42 West 44th Street on Thursday evening, October 23, and continue at the Fordham Law School at Lincoln Center on October 24-25, 2014.  We expect an audience that will include practitioners, professors, UN diplomats, business leaders, federal and state government officials, NGO leaders, writers, journalists, and interested citizens.

Questions regarding ILW 2014 can be directed to conferences@ilsa.org.

ILW 2014 Program Committee

Tamara Cummings-John, Legal Officer, United Nations Office of Legal Affairs; Davis Robinson, Former Legal Adviser, U.S. Department of State; Stephen Shapiro, Managing Partner, BSR Investments; Vivian Shen, Programs Director, International Law Students Association; David Stewart, President-Elect, American Branch of the International Law Association; and Ruth Wedgwood, President, American Branch of the International Law Association.

The Celebritization of Human Trafficking

/ Dina Francesca Haynes / 1 Comment

After working in human trafficking for more than fifteen years, I noticed a trend.  I would show up to speak at an event or a panel, or to train US government and law enforcement and I there I would find:  celebrity actors, celebrity journalists, celebrity humanitarians and the like.   Initially, I was as chuffed as the next person to rub elbows with the rich and famous.  But when after one  particular panel, a certain celebrity suggested to me that I should work on my “elevator pitch,” I began wondering what the pros and cons were to celebrity endorsers working in a field that I cared so much about.

In the article I have written, available in a draft form here, and soon to be published in the Annals of the American Academy of Political and Social Sciences, I demonstrate how  celebrities now regularly engage with human trafficking policy and practice.  In asking why this is, I articulate how human trafficking is considered a “sexy” topic, not only susceptible to alluring, fetishistic and voyeuristic narratives, but also one that plays into the celebrity-as-rescuer-of-the-victim ideal that receives excessive attention from media, policymakers and the public.  In articulating how the UN, legislators, the public, the press, financially interested NGO’s and celebrities themselves buy into this arrangement, I ascribe blame equally between parties interested in promoting their policy (and financial agendas), those who see hobnobbing with celebrities as a perk of their work, and those who view human rights activism as a convenient medium to further their own celebrity.  I conclude by finding that while some celebrities may become knowledgeable enough to give responsible advice to law and policy makers, others engaging in anti-trafficking activism are neither knowledgeable enough nor using good judgment when interacting with those who make the laws and create anti-trafficking programs.  Although we all share the blame, as celebrities have gained “in group” status in many of our lives, the responsibility must lie primarily with law and policy makers who are so slavishly devoted to using celebrity witnesses in order to satisfy their own desire to interact with celebrities that they abdicate their duties to constituents and donors by allowing celebrity activists to provide them with legal and policy advice.  The willingness of legislators to ask celebrities “what would you do if you were a legislator,”  is emblematic of the larger and more general problems with funding, narratives and the shallow level of discourse in current anti-trafficking initiatives.