Author: Aixin Dunn

Marielle Franco and the Brazilian Necropolis: Assassination and After Lives

By Xavier Durham

On March 14, 2018, news of the murder of Rio de Janeiro Councilor Marielle Franco rocked Brazil. A queer black woman, mother, feminist, and champion of Rio’s favela residents, Franco was an outspoken critic of police brutality. Her ascension as a human rights activist and elected representative gave hope for favela residents, especially Afro-Brazilian women vying for a voice in politics [1]. However, less than two years after her election, Marielle Franco was the victim of a coordinated assassination, along with her driver Anderson Pedro Gomes [2].

On March 12, 2019, the eve of the first anniversary of Franco’s murder, federal investigators in Brazil arrested two former police officers—Ronnie Lessa and Elcio Vieira de Queiróz—for their involvement in the killings. Both suspects were members of the Escritório do Crime (Crime Office), a criminal organization run by former and current law enforcement officials in the Rio das Pedras neighborhood of Rio de Janeiro [3]. Franco’s allies have long suspected that such groups, known in Brazil as militias, ordered her assassination. Their concerns held weight for four reasons: 1) Franco openly denounced former President Michel Temer’s order to militarize the city of Rio de Janeiro in February 2018 [4]; 2) the recovered bullet casings belong to ammunition purchased by the Federal Police in 2006 (the bullets used to kill Franco were reportedly stolen from a post office) [5]; 3) five cameras (that belong to Rio’s Security Department) along the route where Franco was assassinated were shut off anywhere between 24 and 48 hours prior to the killing [6]; and 4) extrajudicial killings and cover-ups involving police officers in Brazil rarely undergo investigation and point to a macabre, cyclical impunity [7]. Despite the arrests of Lessa and Vieira, Afro-Brazilians and the poor harbor serious doubts about obtaining justice, either for Marielle Franco and Anderson Gomes or the countless other black Brazilians killed by police every day.

Barbara Harlow’s work on assassinations provides a useful frame for addressing the structural underpinnings of these killings. Instead of relying on the state to play “detective” and investigate crimes, we must understand how the state determines the nature of crime and those it criminalizes [8]. Afro-Brazilians take little solace in the Brazilian government’s promise to prosecute those who pulled the trigger in Franco’s case, given how the state continues to perpetuate an unwavering politics of death. As Harlow might ask, what hope for justice is there for any and all black victims given that the circumstances of Franco’s death have been replicated time and time again [9]? Indeed, the very state that they uphold as an arbiter for justice is actually the conduit through which the most structural, anti-black sentiments proliferate and remain entrenched.

Franco’s assassination reflects the violent, banal reality of police anti-blackness in Brazil. But it is also part of the quotidian nature of white supremacy and the attendant everyday experiences of anti-blackness that the spectacle of police violence obscures [10]. The spectacle of violence does not stop with the state as death squads [11]; indeed, private security also takes center stage [12]. After violent death has occurred, mourning friends and family remain vulnerable to threats and harassment from police to encourage absolute silence and deter investigation [13]. Thus, the emotional and psychological impact of anti-black state violence transcends the victims’ families and bleeds out into their communities, corrupting the health and vitality of those stuck in a shadow of death (i.e., Afro-Brazilian mothers). Black execution is nothing short of genocide.

The violent cycle feeds into what anthropologist Jaime Alves calls the “Black Necropolis,” whereby the interpellation of blackness excludes Afro-Brazilians from the rights of citizenship and, ultimately, their own lives [14]. Fatal interpellation and the direct connection to the Brazilian state is best summarized by the popular truism, “if you want to know who is black and who is not in Brazil, just ask the police” [15]. This axiom affirms that blackness is defined by its proximity to state violence and coercion. Alongside this sobering reality, Marielle Franco’s assassination illuminates how the Brazilian state maintains control through a violent politics of death, and how state-centered justice is virtually unattainable, especially in the face of dissent.

By examining the assassinations of political dissidents and writers speaking out against state oppression, Harlow illuminated those who lived by the pen and died by the sword, all of whom were in the pursuit of radical justice. Her critical analysis of the complexity of assassinations, exposing the violent innerworkings of the state, translates to the circumstances surrounding Marielle Franco and anti-black violence in Brazil. Like dissidents before her, Franco was a threat to an established order that upheld the status quo and praised a neoliberal bent of progress. Her opposition is exemplified in her denouncement of former President Michel Temer’s order to deploy federal troops to favelas under the guise of crime reduction and security [16]. For that, her silence was paramount within the particularities of a macabre, death-driven logic all too common to the Brazilian state’s repertoire [17]. Indeed, to rely on the state to confront the pervasiveness of one of its foundational components through criminal investigation is to reinforce this component and uphold the state’s legitimacy as it stands. Harlow understood the fraught nature of political dissent and how justice cannot come from the propagator of injustice lest we remain satisfied with cosmetic solutions to deeply-entrenched structural issues.

The Brazilian state cannot and will not provide the avenues necessary for justice, and until the Necropolis crumbles, convictions for the murders of Marielle Franco and Anderson Gomes are mere parodies. Therefore, activists carrying on the struggle today must reimagine the future of Brazilian governance through a radical and intersectional political agenda that honors Franco’s legacy. Among the necessary components to this radical reimagining of Brazil, black life must be affirmed and elevated beyond mere survival; Afro-Brazilians must thrive. For now, the struggle continues as activists across Brazil rally against police brutality in a state where they were otherwise never meant to survive. Through these campaigns, Marielle Franco lives on.

#MariellePresente

#AndersonPresente

Bibliography

  1. Theresa Williamson, “Marielle Franco’s Legacy the the fight for Rio’s, and Brazil’s, Future,” RIOONWATCH, March 21st, 2018, http://www.rioonwatch.org/?p=42394.
  2. Dom Phillips, “Marielle Franco: Brazil’s favelas mourn the death of a champion,” The Guardian, March 17, 2018, https://www.theguardian.com/world/2018/mar/18/marielle-franco-brazil-favelas-mourn-death-champion.
  3. Redação RBA, “’Escritório do Crime’ está por trás do assassinato de Marielle,” Rede Brasil Atual, March 12, 2019, https://www.redebrasilatual.com.br/politica/2019/03/escritorio-do-crime-esta-por-tras-do-assassinato-de-marielle.
  4. Dom Phillips, “Brazilian army to take control of security in Rio as violence rises,” The Guardian, February 16, 2018, https://www.theguardian.com/world/2018/feb/16/brazilian-army-rio-de-janeiro-michel-temer.
  5. Leonardo Demori, Carolina Moura, Juliana Gonçalves, Yuri Eiras, and Bruna de Lara, “Who Killed Eduardo, Matheus, and Reginaldo?,” The Intercept, March 21, 2018, https://theintercept.com/2018/03/21/marielle-franco-death-brazil-violence-police/.
  6. teleSUR, “Brazil: Public Security Cameras En Route to Marielle Franco’s Home Were Turned Off Before Assassination,” May 4, 2018, https://www.telesurtv.net/english/news/Brazil-Public-Security-Cameras-En-Route-to-Marielle-Francos-Home-Were-Turned-Off-Before-Assassination-20180504-0002.html.
  7. Human Rights Watch, Good Cops Are Afraid: The Toll of Unchecked Police Violence in Rio de Janeiro. São Paulo: Human Rights Watch, 2016: 5.
  8. Barbara Harlow, After Lives: Legacies of Revolutionary Writing. New York: Verso, 1996: 22.
  9. This question is a paraphrased re-wording of the next dilemma Harlow sees in the aftermath of assassination (See: After Lives, pg. 21).
  10. Christen Smith, “Strange Fruit: Brazil, “Necropolitics, and the Transnational Resonance of Torture and Death.” Souls 15, no. 3 (2013): 177–198.
  11. Death squads are usually groups of vigilantes, current officers, and ex-military personnel that abduct and/or kill primarily Afro-Brazilians under the cover of night. The state’s lack of investigation into cases involving alleged death squad participation highlights their complicity in the practice and reinforces its anti-black logic.
  12. Martha K. Huggins, “Urban Violence and Police Privatization in Brazil: Blended Invisibility.” Social Justice 27, no. 2 (2000): 113–134.
  13. Christen Smith, “The Dangerous Game of Mourning the Dead: Police Violence and the Black Community in Brazil,” Truthout, March 3, 2016, http://www.truth-out.org/speakout/item/35078-the-dangerous-game-of-mourning-the-dead-police-violence-and-the-black-community-in-brazil.
  14. Jaime Alves, The Anti-Black City: Police Terror and Black Urban Life in Brazil. Minneapolis, MN: University of Minnesota Press.
  15. Jaime Alves, “From Necropolis to Blackpolis: Necropolitical Governance and Black Spatial Praxis in São Paulo, Brazil.” Antipode46, no. 2 (2014): 328 – 329.
  16. Dom Phillips, “Brazilian army to take control of security in Rio as violence rises,” The Guardian, February 16, 2018, https://www.theguardian.com/world/2018/feb/16/brazilian-army-rio-de-janeiro-michel-temer.
  17. Ernesto Londoño and Lis Moriconi, “Ex-Officers Arrested in Killing of Marielle Franco, Brazilian Politician and Activist, https://www.nytimes.com/2019/03/12/world/americas/marielle-arrest-rio.html.

Xavier Durham was the inaugural Barbara Harlow Intern in Human Rights and Social Justice at the Rapoport Center, in Spring 2018. He will soon begin the second year of his PhD program in Sociology at the University of California, Berkeley. After studying Black Feminist activism in Rio de Janeiro in the Summer of 2016, Xavier hopes to return in the Summer of 2020 to resume his work on private policing, surveillance, and anti-black violence.

Child Labor Among Syrian Refugees: A Closer Look at the Coercive Effects of Lebanon’s Refugee Policies

By Aaron Burroughs

Child labor among Syrian refugees in Lebanon is exceedingly present and, unfortunately, ordinary. An estimated 180,000 children are working in Lebanon, 3 out of 4 of which are from Syria [1]. The conditions faced by children forced into child labor in Lebanon are harrowing, even by adult labor standards. In a survey conducted by the International Rescue Committee [2], over two thirds of Syrian children engaged in child labor are forced to work six days a week, over half of them work up to ten hours a day, and one in four work between 11 and 15 hours each day. These children, as young as six years old, typically work under dangerous conditions, with 60% of the children surveyed saying they have faced some form of violence in the course of their labor. Child labor that falls below certain minimum age requirements is a violation of fundamental human rights inscribed in the Convention on the Rights of the Child [3] and the International Labor Organization’s Minimum Age Convention [4]. At the domestic level, labor under the age of 16 that “harms the health, safety or morals of children” or prevents the child from pursuing an education is illegal in Lebanon [4], but the prohibition is largely unenforced [5]. While a formal prohibition on child labor is a crucial first step, to fully confront the issue, there must be a reckoning with the complex set of legal and social exclusions that create the conditions under which child labor among refugee populations occurs. To truly protect the rights of Syrian refugee children, Lebanon must ensure employment opportunities for Syrian refugees of working age and fair access to resources and services, easing the coercive economic conditions that necessitate child labor within refugee households.

The harsh reality is that many families in Lebanon, especially refugee families, are forced to rely on the income of their children to sustain even a minimally acceptable livelihood. In many cases, children are the main or sole source of income for households, due to restricted job opportunities and exclusionary legal statuses for adult refugees [6]. While child labor is harmful to a child’s development and a violation of human rights, it may be a family’s last lifeline.

It should go without saying that life for Syrian refugees in Lebanon is extraordinarily difficult. An estimated 1.5 million Syrian refugees reside in Lebanon, a country with a population of only 4.4 million people [6]. 76 percent of refugee households are living below the poverty line and 58 percent are living in extreme poverty [7]. Receiving a work permit outside the sectors of agriculture, cleaning, and construction is virtually impossible [15], leading 92% of economically active Syrian refugees to work in informal sectors where they are paid less than minimum wage and deprived of social protections [14]. The economic precarity of refugee livelihood in Lebanon produces and sustains an epidemic of refugee child labor.

The international human rights regime has worked to eradicate violations of the rights of children and refugees. Lebanon’s refugee policy, however, is vague and insufficient. The state is not a party to any international refugee conventions[9], leaving absent a national framework for refugee rights [10]. Domestic legislation regarding Syrian refugees does exist and is instituted on an ad hoc basis. However, the Lebanese government avoids the term ‘refugee’ as this entails binding legal actions, and, instead, refers to Syrian refugees as ‘displaced’ [14]. We should understand these actions as tactics by the Lebanese government to evade any obligation to provide refugees permanent residence or tailored services. Aside from the stress mass inflows of people into the country would place on the economy and the country’s resources, Lebanon’s fragile sectarian balance is threatened by foreigners, refugees or otherwise. The inflow of Palestinian refugees in Lebanon after the Arab-Israeli War in 1948, for example, is often cited as a prominent cause of the Lebanese Civil War (1975-1990) [16]. Overt anti-refugee sentiment is held by the government and many Lebanese citizens, making any issue regarding refugees both highly politicized and provocative. Lebanon’s vague policies act as a barrier to refugee integration and protection, working (unsuccessfully) to deter migrant flows and to avoid checks on the government’s treatment of refugees.

In May of 2015, Lebanon suspended the registration of Syrian refugees by the United Nations High Commissioner for Refugees (UNHCR), effectively abolishing the right to asylum as a legitimate reason for entry. The UNHCR registered about one million refugees since the start of the Syrian Civil War, but an estimated 500,000 more Syrians were not able to register [11]. Subsequently, the government established a sponsorship system for unregistered individuals to obtain legal residency status. The sponsor may be a friend or family member, but oftentimes, sponsors exploit the dire circumstances of Syrian refugees, selling sponsorships at a steep price or sponsoring them for employment purposes, creating highly coercive sponsor-refugee relations akin to indentured servitude. The phenomenon of Syrian refugees facing mistreatment and abuse from their employers who extort their labor with threats to cancel their sponsorship is well documented [12]. Additionally, many refugees cannot afford the $200 residency fee also imposed on them by the government, however, and continue to reside in the country illegally [12]. Evidently, the Lebanese government has prioritized erecting obstacles for Syrian refugees to maintain their livelihood over abiding by international law.

Hundreds of thousands of Syrian refugees in Lebanon without legal status remain vulnerable to deportation [13], which is why many adult Syrian refugees have resorted to sending their children to work and limiting their own movement and visibility [12]. Employers prefer to hire Syrian children because they are forced to accept far less pay than an adult and will complete more strenuous labor than any “Lebanese boy who wants to do this work” [5]. While unauthorized work by a refugee adult can result in deportation due to heavy policing and constraints enforced upon them [8], refugee children engaged in labor are much less likely to attract retaliatory penalties from the state.

It bears mentioning that the contribution of refugee child labor serves to benefits Lebanon’s economy, and consequently the government has no true incentive to stop it. Refugee child labor avoids the political uproar of refugees competing for jobs with citizens. It helps local Lebanese businesses, both formal and informal, function at a low cost. At the same time, refugee families are able to scrape by instead of being forced to resort to petty crime or violence to sustain themselves. The rights of the children, of course, are subordinate to these concerns, and the best interests of the child fall by the wayside. For Lebanon to genuinely eradicate refugee child labor, it would have to stop treating adult Syrian refugees as a security concern and, instead, as human beings with rights, skills, and dignity, as well as recognize their productive potential to bolster the Lebanese economy. It must create opportunities for adult refugees to participate lawfully and equally as legitimate participants in the labor force. The formalization of the economy and refugee integration of the workforce have the potential to stabilize host economies and improve conditions for all workers [14]. Additionally, the government should offer financial support and services to families whose primary wage earner is unable to work due to injury or illness. Alternative development strategies must also be implemented. The creation of special economic zones that grant work permits to refugees can foster refugee business and sustainable livelihoods, although they must be highly regulated to avoid labor exploitation and must be carefully framed so as not to legitimate and foment nationalistic and anti-refugee sentiment. Greater financial support from the international community is crucial to providing these opportunities through grants and loans and investment, as well as greater resettlement of refugees by countries like the United States. Once employment opportunities are made for refugees to earn a living wage, only then can children graduate from working in the streets to working in the classroom.

Bibliography

  1. UNHCR, Child Labor in Lebanon, unhcr.org, accessed November 6, 2018, https://data2.unhcr.org/en/documents/download/.
  2. International Rescue Committee Europe, “New survey reveals extent of hardship and abuse experienced by Syrian children working on streets of Lebanon,” rescue-uk.org, accessed June 20, 2018, https://www.rescue-uk.org/press-release/new-survey-reveals-extent-hardship-and-abuse-experienced-syrian-children-working#Fullsurvey.
  3. UNICEF, “FACT SHEET: A summary of the rights under the Convention on the Rights of the Child, unicef.org, accessed Jun21, 2018, https://www.unicef.org/crc/files/Rights_overview.pdf.
  4. Republic of Lebanon Ministry of Labor, “Guide of Decree 8987 on Worst Forms of Child Labour,” ilo.org, accessed November 3, 2018, https://www.ilo.org/wcmsp5/groups/public/—arabstates/—ro-beirut/documents/publication/wcms_443273.pdf.
  5. Lisa Khoury, “Special report: 180,000 young Syrian refugees are being forced into child labor in Lebanon,” vox.com, accessed June 20, 2018, https://www.vox.com/world/2017/7/24/15991466/syria-refugees-child-labor-lebanon.
  6. Human Rights Watch, “Growing Up Without an Education,” hrw.org, accessed June 25, 2018, https://www.hrw.org/report/2016/07/19/growing-without-education/barriers-education-syrian-refugee-children-lebanon.
  7. UNHCR, “Survey finds Syrian refugees in Lebanon became poorer, more vulnerable in 2017, unhcr.org, accessed June 24, 2018, http://www.unhcr.org/en-us/news/briefing/2018/1/5a548d174/survey-finds-syrian-refugees-lebanon-poorer-vulnerable-2017.html.
  8. Sima Ghaddar, “Lebanon Treats Refugees as a Security Problem – and It Doesn’t Work,” tcf.org, April 4, 2017, accessed August 15, 2018, https://tcf.org/content/commentary/lebanon-treats-refugees-security-problem-doesnt-work/?session=1. .
  9. Library of Congress, “Refugee Law and Policy: Lebanon,” loc.gov, accessed June    21, 2018, https://www.loc.gov/law/help/refugee-law/lebanon.php
  10. United Nations General Assembly, Convention Relating to the Status of Refugees, (G.A. Res. 429 (V), 1951).
  11. Human Rights Watch, “Lebanon: New Refugee Policy a Step Forward,” hrw.org, February 14, 2017, accessed June 27, 2018, https://www.hrw.org/news/2017/02/14/lebanon-new-refugee-policy-step-forward
  12. Human Rights Watch, “Lebanon: Residency Rules Put Syrians at Risk,” hrw.org, January 12, 2016, accessed June 27, 2018, https://www.hrw.org/news/2016/01/12/lebanon-residency-rules-put-syrians-risk
  13. Human Rights Watch, “Lebanon: Events of 2016,” hrw.org, accessed June 27, 2018,  https://www.hrw.org/world-report/2017/country-chapters/lebanon.
  14. Diana Essex-Lettieri et al., Refugee Work Rights Report: The Syrian Crisis and Refugee Access to Lawful Work in Greece, Jordan, Lebanon and Turkey. (Oakland: Asylum Access, 2017), http://asylumaccess.org/wp-content/uploads/2017/09/Middle-East-Refugee-Work-Rights-Syrian-Crisis.pdf.
  15. Rasha Faek, “Little Hope of Jobs for Syrians in Lebanon and Jordan,” al-fanarmedia.org, February 25, 2017, accessed August 15, 2018, https://www.al-fanarmedia.org/2017/02/lebanon-jordan-syrians-face-bleak-employment-future/.
  16. Maja Janmyr, “No Country of Asylum: ‘Legitimizing’ Lebanon’s Rejection of the 1951 Refugee Convention,” International Journal of Refugee Law 29, no. 3 (2017), https://academic.oup.com/ijrl/article/29/3/438/4345649

Aaron Burroughs served as an undergraduate intern with the Rapoport Center for Human Rights and Justice in Spring and Summer 2018. He now resides in Amman, Jordan.

Summer Reflections Series: Solidarity Center

By Lissette Almanza

Through the generous support of the Rapoport Center’s Project on Inequality and Human Rights, I was able to spend my summer 2018 interning at the Solidarity Center in Washington D.C. The Solidarity Center, a global labor rights NGO affiliated with the AFL-CIO, works to empower workers to raise their voice for dignity on the job, justice in their communities and greater equality in the global economy. With the fellowship supporting my work on labor and human rights issues, I developed the skills and confidence to continue to pursue a career in international human rights advocacy.

Much of my work at the Solidarity Center’s Equality and Inclusion Department involved conducting research on the relationship between gender, trade policy and women’s labor rights, particularly as it relates to the African Growth and Opportunity Act (AGOA). My deep-dive into this research allowed me to draft an intersectional analysis on gender-related issues and labor rights violations in the world of work. The exploitation of women workers for economic gains, especially in the garment industry, prevent women and their families from achieving better livelihoods. However, the abuses women experience at work often remain invisible. With a better lens into these issues, my research will help advance the advocacy efforts of the Solidarity Center by demonstrating to union partners in Africa the need to fight for women’s worker rights and an egalitarian workplace.

As the summer unfolded, I found myself immersed in work surrounding gender-based violence (GBV) at work. GBV is violence that is directed against an individual or group of individuals based on their gender identity and can take multiple forms, including physical and sexual abuse, bullying and coercion among others. Following the International Labor Conference (ILC) that took place from May 28 – June 8, a proposed global standard on ending violence and harassment against women and men in the world of work became one step closer to reality, with a strong focus on GBV. Since the International Labor Organization (ILO) is considering for the first time a Convention with a Recommendation on this issue, I quickly realized that I was in the midst of a valuable and learning experience at the Solidarity Center.

As part of this global march towards an ILO Convention with a Recommendation, I had the opportunity to participate in the process of assessing ways that the Solidarity Center can support partners and allies to champion its adoption in June 2019. I used my policy analysis skills to create a comparison document that analyzed the text of the proposed global standard and tracked the amendments offered during the ILC by government, employer, and worker members. These tools are intended to help union partners strategize for the next round of negotiations and understand the position of each member group. I also worked closely with another intern to create an evaluation survey and interviewed field staff across the globe on the work that Solidarity Center and partners have done towards addressing GBV at work, as well as supporting the ILO Convention.

In addition to my work this summer, the Solidarity Center also facilitated weekly sessions to enhance our understanding of labor rights issues, as well as skill-based workshops. Interns met with staff or union affiliates to discuss topics on child labor, migration and human trafficking, workers’ rights in the global economy, and on collective bargaining. The conversations and discussions were enriching and allowed me to grasp a better sense of the importance of advocating for labor rights. The monitoring and evaluation session developed my understanding on what helps improve and achieve results for advocacy work.

Along with immersing myself in international labor rights during my time at the Solidarity Center, my voice as a labor rights advocate blossomed. Now, I feel connected to the worldwide labor movement and prepared to advance workers’ rights wherever I go. I am incredibly grateful for this opportunity and look forward to applying the skills and knowledge that I gained this summer as I jumpstart my career in the international human rights field.

Summer Reflections Series: Sustainable Settlements for Peace

As Berta Cáceres Fellow, Ricardo Velasco documented the development of Sustainable Settlements for Peace, a program developed by the organization CASA (Council for Sustainable Settlements of Latin America) and the Foundation Mentes en Transicion in Isla Grande, Islas del Rosario and in Filandia, Department of Quindío, Colombia. Through action-based and transformative education projects, and in dialogue with local knowledges, Sustainable Settlements for Peace aims to accompany and support historically marginalized communities in their achievment of their goals of autonomy and sustainable development, and to contribute to the construction of peace in rural Colombia by recovering local traditional knowledges and sharing practical skills for sustainability and peaceful coexistence. In Isla Grande, the program has been implemented in collaboration with the Local Council of Black Communities  through different pedagogical and community engagement processes that include agroecology and conflict resolutions workshops, as well as organizational efforts for improving the eco-tourism economy developed by local families. This local economy has been intrinsically linked with ongoing struggles for territorial autonomy in a context of state neglect. In Filandia the program has partenered with the Peasant Organization ANUC to accompany local coffee producers as they make an holistic transition into organic productive models that consider the social and cultural aspects of sustainability. The program also supports organizational efforts that have been disrupted within a context of stigmatization against local social leaders.

Ricardo’s research documents the differential impact Sustainable Settlements for Peace is having within the communities and how the program mobilizes the potential of local human and natural resources, and the opportunities opened by the transitional justice conjuncture. He explores the potential of the initiative for revitalizing community ties and producing new articulations of social and human rights mobilizations among ethnic minorities and marginalized groups to promote inclusion, social and environmental justice. At the same time, his work also includes teaching basic documentation techniques to youth leaders within these communities so that they can share and learn from their own experiences, recover local traditional knowledges, and have better communication strategies by leveraging the potential of new media.

Ricardo Velasco is a Berta Cáceres Human Rights Fellow (2018), a Summer Human Rights Fellows (2017 & 2018), and a Summer Fieldwork Grantee (2016)

Access to Counsel: A Corollary to “The Production of Precarity” within the US Immigration System

By Elizabeth Schmelzel

Leah Rodriguez’s work, “The Production of Precarity: How US Immigration ‘Status’ Affects Work in Central Texas” offers a comprehensive breakdown of the relationship between immigration law and precarity for immigrants in the United States, drawing on cases from Central Texas to illustrate those dynamics. Rodriguez points out that “[t]o the extent that immigrants’ precarious work is tied to their US immigration status, which is so often dependent on the will of Congress, the Executive administration, regional immigration judges, asylum officers, and countless administrative, bureaucratic actors in between,… immigration law works to create precarity.” If we want to confront and ameliorate immigrants’ precarity, she argues, law reform is critical. Rodriguez points to several possibilities for change—eliminating the codification of “discretion” and “deserving” migrants in immigration law and lowering barriers to securing driver’s licenses, among others. Yet even if law and policy shifted, creating more opportunities for immigrants to secure status or maintain work permits, immigrants will need assistance in asserting their rights. That reality is why the provision of attorneys for low-income immigrants would radically confront precariousness.

As it stands, very few categories of people have the right to a free attorney in the United States. Under the Sixth Amendment, it is only a criminal defendant that has a constitutional right to be represented by an attorney during trial. People caught in the immigration system, however, are accused of violating civil, not criminal, law. Therefore, while they can hire an attorney on their own, either with their own money or by securing the help of legal non-profits, immigrants do not have the right to appointed counsel at the government’s expense. This is true no matter what the stakes of an immigration case might be, from completing a relatively straightforward DACA application, to adjudicating a protracted and complicated asylum claim which could determine whether someone is deported. What this means is that indigent asylum seekers, who may have fled torture, who do not speak English, and who are unfamiliar with immigration law, are forced to represent themselves. Egregiously, this includes children, who, under American asylum law, can be forced to represent themselves in proceedings to determine whether they will be deported.[1]

We know that access to legal counsel secures better outcomes for immigrants, and assuages the government’s concerns about immigrants absconding to avoid court hearings. Detained immigrants are more likely to be released on bond if they have an attorney, and immigrants of all kinds are more likely to be successful on the outcome of their substantive immigration case if they are represented.[2]  One recent study shows that a full 93% of non-detained immigrants showed up to court when they had legal representation.[3] By comparison, only 32% of non-detained immigrants representing themselves attended required court hearings.[4] Thus, when considering Rodriguez’s proposed solutions for ameliorating immigrant precarity, the importance of access to counsel should not be overlooked. The question, of course, is whether there is the political will (and fiscal space) to incorporate free legal representation into the American immigration system. Perhaps not now, given the shameful political rhetoric around immigration in 2018. But as Rodriguez points out, maybe there could be, provided that well-informed readers, armed with data and facts, continue engaging in the art of persuasion “in the United States Congress, in the workplace, or around the dinner table.”

[1] American Immigration Council, “Children in Immigration Court: Over 95 Per Cent Represented by an Attorney Appear in Court.” Available https://www.americanimmigrationcouncil.org/sites/default/files/research/children_in_immigration_court_0.pdf. Accessed 20 June 2018; Loreilei Larid, “Immigration Children Begin Appearing in Court Without Lawyers or Parents,” ABA Jounral. Available: http://www.abajournal.com/news/article/children_separated_from_parents_begin_appearing_in_court_without_lawyers_or. Accessed 29 June 2018.

[2] Ingrid V. Egaly and Stephen Schaefer, A National Study of Access to Counsel in Immigration Court. 164 U. Penn. L. Review. 1, 69-70; 57-59 (2015).

[3] Id. at 73.

[4] Id.

Digital Privacy: Smart Technology and the Naive Consumer

By Leonel Mata

Recent reports concerning the extent to which companies, such as Facebook, have been acquiring and disseminating information of individuals across the world have highlighted the fact that privacy issues do not only concern how governments make use of personal information, but how private companies have been making use of it as well. The pervasiveness of technology, combined with its necessity in the modern world, has made issue of convenience versus protection an all-important debate.

To be a part of the modern world one must be connected to it constantly. The main way of achieving this is through the internet, and the main way the internet is accessed is through our cellphones. Long gone are the days when you could easily get by using physical mail and a landline telephone. While the rise of smartphones has made our lives easier, creating a quick and easy way to access information and to contact others almost instantaneously, it has also become a way to gather information on the individual in ways that were impossible before. As technology has advanced so too has the amount of information that is being acquired by both private and government entities. Despite this rapid scaling of access to personal information, the law has been slow to react and protect the individual in an adequate manner.

In China, one can see how advancements in technology have provided infinite gold-mines of information. China’s government has taken a keen interest in controlling how social media works on popular platforms, such as WeChat, Baidu Tieba, and Sina Weibo, out of a belief that information being disseminated on these platforms can disrupt social order and lead to the violation of laws.

China has also enacted a policy known as “real-name registration” where users must register their personal information with the necessary provider before they can do things like post comments on forums or articles. China’s step toward erasing anonymity is done under the guise of making the community safer and holding individual’s accountable for their statements and actions. However, it also has the effect of dissuading individuals from stating contrary views to those in charge. Naturally, this creates an additional barrier for individuals’ who seek to advocate for change, but it also has a chilling effect on the ability for a community to be able to discuss issues freely and openly without fear of retribution.

Out of a desire to access a larger market, companies regularly acquiesce to rules and regulations imposed by countries such as China. While it is true that Google has rejected some of China’s more restrictive and invasive policies, they have announced that they would be returning to China. Even without American companies such as Google, local companies such as Baidu have grown tremendously and have had no issue agreeing to the terms stipulated by the Chinese government.

Often overlooked is the fact that concern for one’s privacy is not merely an issue for those who live or visit countries such as China. Governments and companies alike in western democracies have increasingly made use of the pervasiveness of technology in order to acquire as much information as they can on each individual. In the United States, people have seen the rise of the National Security Agency and its ability to invade the privacy of individual’s when the government can justify that it is necessary. However, what is more alarming is the increase in the acquisition of personal information by private companies, such as Facebook, or internet service providers, such as Comcast.

In our daily lives we are regularly giving away bits and pieces of our privacy. When we use Fitbit, the company is given access to where and when you have been somewhere. Most shocking to the public has been the realization that when we participate in social media, such as Facebook, we give away an enormous amount of data that then has the potential to be misused and abused by companies.. These issues are not new ones, in fact, Facebook has been involved in privacy violations before, but has been able to come out of each one relatively unscathed because, when it comes to technology, the public prefers convenience.

While privacy advocates have been up in arms regarding the increasingly invasive nature of governments and companies across the globe, the public has been less concerned. Traditionally, when dealing with privacy our protections were written taking into account physical invasions into our space as well as physical collecting of our data. However, the world has changed significantly since these protections were written. Nowadays, an invasion of privacy can occur out of sight and out of mind. This has made the public much more accepting of giving away their privacy because it does not noticeably affect them. Recently, thanks to scandals surrounding companies such as Cambridge Analytica and Grindr, people have become more concerned regarding the extent to which their data is being used. It is unclear as to whether this will be enough to finally force governments to act to properly protect the rights of the individual against blatant misuses of their personal information.

It is true that certain companies have taken a number of steps to better safeguard the personal information of their customers, often to the government’s annoyance, but even these companies have proven to be susceptible to the demands of the government if there is a significant financial incentive to do so. This demonstrates that it cannot be left to companies to self-regulate how they protect the data of individuals. Thus, in order to safeguard our rights, governments must act to pass legislation imposing harsher personal privacy regulations and harsher penalties for those who do not comply with these regulations. The EU has done just this when it passed the General Data Protection Regulation back in 2016. Unsurprisingly, there has already been pushback from companies about enacting the EU requirements globally.

As for governments, such as China, who are more frequently the abuser rather than the protector of rights, the public should engage not only domestically, but at an international level  in order to create change in how abusive governments are treating their citizens’ right to privacy. Even for government’s that are more receptive to public criticism, one must be vigilant as they continue to squeeze away at one’s privacy. If action is not taken at the local, national, and international levels, then the right to privacy will soon be a thing of the past as individuals are taken advantage of by both public and private entities.

Leonel Mata is a third-year law student at The University of Texas School of Law. He is a member of the 2017-2018 Working Paper Series Committee, Submissions Editor of the Texas Journal of International Law, and a member of the Jessup International Moot Court team.

Afghanistan’s new Penal Code: Whether or Not to codify Hudud and Qisas

by Murtaza Rahimi

Afghanistan, in an attempt to modernize and unify the statutes regulating crimes and their punishments, enacted a new Penal Code in May 2017.[1] Problematically, article 2 of the new Code permits judges to rule on certain Islamic crimes and decide the punishments of such crimes in accordance with Hanafi jurisprudence of the Islamic law. The inclusion of these offenses and punishments undermine fundamental principles of criminal law, and are inconsistent with Afghanistan’s 2004 Constitution.

The Code could be praised for several reasons. First, it defines crimes that were absent in the previous Penal Code like cyber, environmental, international, electoral, corruption, cultural, and intellectual property crimes. Second, the Code attempts to more realistically adhere to the principle of proportionality, allowing for fines rather than incarceration for misdemeanors and petty crimes, and offering a range of alternatives to prison that were absent from the previous Penal Code.[2] Further, the long-term imprisonment is increased from 20 years to 30 years in order to restrict the death penalty to very serious crimes namely murder, crimes defined in the Rome Statute, terror and suicide attacks, crimes that seriously affect the territorial integrity, kidnapping/abduction, hostage taking, highway robbery that results in murder, and group rape. Finally, the new Code introduces much-needed nuance into the range of mitigating circumstances, accounting for gender issues and mitigation for those who commit crimes under a threat to their personal safety.

That said, the Code is not immune from criticism. One of the main criticisms is that the new Penal Code, like the 1976 Penal Code, only defines punishments that fall under the Tazir, which are punishments that are not defined in the Quran or Sunna and are executed under the discretionary power of the judge, in article 2(1). Further, in article 2(2) it states that Hudud, Qisas and Diyyah (blood money) will be implemented in accordance with the Hanafi Jurisprudence of the Islamic Law. Hudud offenses are crimes against God whose punishment is clearly specified in the Quran and the Sunna (prophetic traditions), and Qisas are physical assault and murder punishable through retaliation by the victim or heirs of the victim or through the payment of blood money.

Although legislators had first sought to include Hudud and Qisas in the new Penal Code, they later decided that this inclusion contradicted the spirit and the principles of the Penal Code and excluded them. However, the Code still gives judges the authority to implement such punishments in accordance with Hanafi jurisprudence of Islamic Law. This raises serious concerns and criticisms among legal scholars, human rights organizations like Human Rights Watch, and activists. Human rights activists oppose the incorporation of Hudud and Qisas in article 2(2) because they see these punishments, like stoning and lashes, as “cruel, inhuman or degrading punishments” prohibited in international human rights law, particularly article 7 of International Covenant on Civil and Political Rights and article 16 of Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and note that the prohibition against torture is considered as a jus cogens norm. Afghanistan is a party to the above conventions since 1983 and 1987, respectively. In addition to these central human rights concerns, the inclusion of article 2(2) raises other legal concerns, which are briefly listed below.

First, section 2(2) of the Penal Code is incompatible with article 2 of the Constitution from an originalist point of view. The 2004 Constitution, unlike the 1964 and 1976 constitutions, only recognizes Islam generally as the state religion regardless of Sunni and Shiite sectarian differences. In drafting the new constitution, representatives agreed not to follow the 1964 and 1976 constitutions, which regarded Islam with Hanafi jurisprudence (a Sunni school of jurisprudence) as the state religion. This was done mainly to prevent regimes from declaring other sects infidels or to systematically violate their freedom of religion. Both the Abdul Rahman regime in the late 1800s and the Taliban in 1990s had relied on fundamentalist interpretations of the state official sectarian religion to announce the Shiite sect followers infidel and conducted, arguably, genocide against them. The 2004 Constitution, thus, served to respect the Sunni and Shiite sects within Afghanistan. Therefore, the codification of article 2(2) of the Penal Code—that gives preference to Hanafi jurisprudence over, for example, Jaffari, Maliki, Shafi‘i, Hanbali and Ismaeli jurisprudence—is inconsistent with the Constitution. It, arguably, is not justifiable to say that the new Penal Code only followed the 1976 Penal Code, for the latter was adopted when the 1976 constitution was in force, while the former was adopted under the 2004 Constitution.

Second, the Constitution, to overcome sectarianism, only admits Islam alone as the official religion . It clearly means that no sectarian law, like Hanafi or Jafari, shall be considered the law or “the” source of law. Consequently, any Islamic norms including sectarian jurisprudence can become law only if they are approved by both houses of the National Assembly and endorsed by the President.[3] Therefore, referring generally to a sectarian law ignores explicit constitutional norms that not only violates the non-sectarian nature of the Constitution, but also undermines the rule of law.

In addition, article 2(2) of the Code undermines the principle of nullum crimen, nulla poena sine lege [no crimes and punishments without law]. According to this principle, the crimes and their punishments shall be prescribed clearly so that all citizens can predict what actions/omissions are crimes and what exact punishments they may face if they commit certain crimes. By including a general reference to Hanafi jurisprudence, where there is usually more than one interpretation regarding the punishments, the Code permits judges to sentence the offenders to punishments that are not prescribed clearly. Punishments will be much more serious if the offender is a non-Hanafi Muslim or a non-Muslim citizen; the freedom of religion of the offender will be violated if they are punished under a religious law to which they do not adhere.

Finally, the lack of regulation prescribing the procedure for the execution of Hudud and Qisas has resulted in multiple practices. There are at least two concerns regarding this argument. First, although under article 129 of the Constitution, only “final decisions of the courts shall be enforced,” there are instances in which the orders of the primary courts regarding Hudud are carried out before the defendant has an opportunity to appeal them; once a punishment like lashing is executed, or when the hands of a person convicted for serious theft are cut, the request for appeal is meaningless. Thus, like death penalty punishments, the Hudud punishments shall be enforced when the decision is finalized and is not subject to any further appeal(s). Second, under article 303 of the Criminal Procedure Code, it is the Prosecution and Police who shall execute the courts’ decisions. However, the execution of the Hudud and Qisas are routinely carried out by the judiciary. For example, in cases where an unmarried person engages in a form of adultery, it is the judge who both decides and executes the lashing. To illustrate, in 2014-15, at least the primary courts in Bamiyan, Uruzgan and Ghor provinces convicted young unmarried men and women for committing adultery and sentenced each of them to 100 lashes. Later the same judges who decided the cases, executed the 100 lashes against the offenders; their judgments were subject to appeal despite the punishment already having been carried out.

The parliament should effectively respond to the concerns raised by human rights activists and organizations and related legal critiques, and bring the Code in line with the state’s obligation under the Constitution, particularly article 7 of the Constitution, to observe and adhere to the international human rights instruments to which Afghanistan is a party.

[1] The new Penal Code replaced the 1976 Penal Code along with 34 other statutes. See article 916 of the new Penal Code. see Afghanistan Official Gazette No. 1260, (May 15, 2018).

[2] Articles 148-168: The alternatives for prison is applicable only for crimes that are punishable by less than five years imprisonment and includes home confinement, community control, community service, and temporary deprivation from social rights.

[3] In accordance with article 94 of the Constitution.

Murtaza Rahimi is a LLM at the University of Texas School of Law. He is a member of the 2017-2018 Working Paper Series Committee and a Fulbright Scholar from Afghanistan. 

The Downsides of Take-downs: Online Content Regulation and Human Rights Fact-Finding

by Anna Banchik

19 MAR 2018

Once lauded as purveyors of free expression and “technolog[ies] for liberation”[1] given their role in powering the Arab Spring and subsequent pro-democracy movements, social media sites[2] have, in 2017, unquestionably met their reckoning.

The year witnessed Facebook, Twitter, and Google (which owns YouTube) coming under intense scrutiny for their failure to remove hate speech, extremist content, and inaccurate information spread intentionally (disinformation) or unintentionally (misinformation) from their sites.[3] Members of the United States Congress have demanded that the companies ramp up their content moderating efforts in the midst of ongoing investigation into their facilitation of Russian meddling in the 2016 U.S. elections. For their part, European lawmakers concerned with the widespread dissemination of hate speech and extremist content are also applying pressure. On January 1, 2018, new German legislation came into effect which fines social media sites up to 50 million euros ($59 million) for failing to remove “manifestly unlawful” posts within 24 hours. The “Facebook Law,” as it is colloquially known, targets posts involving incitement to hatred and other prohibited forms of speech.[4] The European Commission has warned it is considering similar measures for targeting terrorist and extremist content.[5]

However, aggressive content moderation is not universally embraced. First Amendment activists in the U.S. and internet rights groups more broadly have argued that empowering social media companies to arbitrate what constitutes hate speech or extremist content would be a dangerous move, particularly in response to government requests that accounts be censored or shuttered.[6] Moreover, while cautioning that severe fines may have a chilling effect on online speech, Facebook has itself acknowledged the inherent difficulties in determining “the intent behind one post, or the risk implied in another.”[7] Imagine that “[s]omeone posts a graphic video of a terrorist attack,” writes Monika Bickert, Facebook’s Head of Global Policy Management. “Will it inspire people to emulate the violence, or speak out against it?”[8] That such difficulties arise in the case of human review brings into stark relief the added complications entailed in training machine learning algorithms to properly detect the context, intended meaning, and potential consequences of online content.

Overshadowed in this debate are the voices of a growing body of human rights groups who rely on social media sites to find and corroborate possible evidence of abuses. The widening accessibility of camera phones, participatory media, remote-sensing imagery, and other information and communication technologies have multiplied and diversified the sources of human rights-related information available for advocacy and legal accountability efforts. The International Criminal Court recently issued its first arrest warrant based largely on evidence collected from social media. The warrant cites seven videos documenting Libyan commander Mahmoud Mustafa Busayf Al-Werfalli shooting or ordering the execution of 33 civilians or wounded fighters.[9] Had these videos been quickly removed, they might have never made it to court or been preserved.

Such is the worry over a staggering volume of content from Syria and Myanmar taken down from YouTube and Facebook in recent months. Modifications in YouTube’s machine learning algorithms in August 2017 resulted in the swift removal of 900 YouTube channels posting videos of the Syrian conflict.[10] A month later, Facebook removed videos and images documenting a wave of attacks against the Rohingya, a Muslim ethnic minority in Myanmar,[11] while keeping “fake news” and hate speech directed against the group on its platform.[12]

The conundrum defies easy fixes. Recuperating channels and content can involve a lengthy process of appeals which may not be possible for the most vulnerable users posting content and attempting to document and expose human rights abuses. Numerous mobile apps have been developed to enable eyewitnesses to anonymously send content along with its metadata directly to legal experts and NGOs.[13] However, their adoption pales in comparison to that of Facebook, Twitter, and YouTube. For now, human rights groups will continue, as best they can, to track companies’ disappearing acts.

Work Cited

[1] Samidh Chakrabarty, “Hard Questions: What Effect Does Social Media Have on Democracy?” Facebook Newsroom. January 22, 2018. https://newsroom.fb.com/news/2018/01/effect-social-media-democracy/

[2] By “social media site,” I refer here to both social media platforms including Twitter and Facebook and user-generated content websites like YouTube.

[3] See Claire Wardle, “Fake news. It’s complicated,” Medium. February 16, 2017. https://medium.com/1st-draft/fake-news-its-complicated-d0f773766c79

[4] Linda Kinstler, “Can Germany Fix Facebook?” The Atlantic. November 2, 2017. https://www.theatlantic.com/international/archive/2017/11/germany-facebook/543258/

[5] Samuel Gibbs, “EU Warns Tech Firms: Remove Extremist Content Faster or Be Regulated.” The Guardian. December 7, 2017. https://www.theguardian.com/technology/2017/dec/07/eu-warns-tech-firms-facebook-google-youtube-twitter-remove-extremist-content-regulated-europ.

[6] Glenn Greenwald, “Facebook Says It Is Deleting Accounts at the Direction of the U.S. and Israeli Governments.” The Intercept. December 30, 2017. https://theintercept.com/2017/12/30/facebook-says-it-is-deleting-accounts-at-the-direction-of-the-u-s-and-israeli-governments/

[7] Monika Bickert. “Facebook’s Community Standards: How and Where We Draw the Line.” Facebook Newsroom. May 23, 2017. https://newsroom.fb.com/news/2017/05/facebooks-community-standards-how-and-where-we-draw-the-line/. See also supra note 4.

[8] Ibid.

[9] Prosecutor v. Al-Werfalli, Case No. ICC-01-11-01/17-2, Public Warrant of Arrest. August 15, 2017. https://www.icc-cpi.int/CourtRecords/CR2017_05031.PDF.

[10] Avi Asher-Schapiro, “YouTube and Facebook are Removing Evidence of Atrocities, Jeopardizing Cases Against War Criminals.” The Intercept. November 2, 2017. https://theintercept.com/2017/11/02/war-crimes-youtube-facebook-syria-rohingya/.

[11] Ibid.

[12] Facebook did, however, recently remove the account of one of Myanmar’s most outspoken voices against the Rohingya, Buddhist monk Wirathu. See Laignee Barron, “Nationalist Monk Known as the ‘Burmese bin Laden’ Has Been Stopped From Spreading Hate on Facebook.” February 28, 2018. http://time.com/5178790/facebook-removes-wirathu/. See also Megan Specia, “A War of Words Puts Facebook at the Center of Myanmar’s Rohingya Crisis.” October 27, 2017. https://mobile.nytimes.com/2017/10/27/world/asia/myanmar-government-facebook-rohingya.html?_r=1&referer=http%3A%2F%2Fm.facebook.com.

[13] E.g., the International Bar Association’s eyeWitness to Atrocities app (http://www.eyewitnessproject.org/) and The Whistle, based at the University of Cambridge (http://www.thewhistle.org/)

Anna Banchik is a PhD candidate in the Department of Sociology at the University of Texas at Austin, conducting interdisciplinary research at the intersections of science and technology studies (STS), visual media, and human rights. She is also a member of the Working Paper Series Editorial Committee.

Volatile Times for Brazil’s Human Rights

by Eyal Weinberg

15 FEB 2018

The decision of Porto Alegre’s appeals court to uphold the corruption conviction of former President Luiz Inácio Lula da Silva three weeks ago (1/24/2018) threw Brazil into turmoil. The former Brazilian president (2003-2010) is the last to be targeted in the grandiose “Car Wash” investigation, a major probe into the rampant corruption in Brazil’s political and economic systems. The ruling was not the first to remove a powerful figure from Brazil’s political landscape; since 2014, special prosecution task forces have secured the imprisonment of various influential politicians and business moguls. But Lula’s conviction overshadows all previous spectacular moments of the Car Wash investigation.  A study by the Getulio Vargas Foundation has already concluded that the ruling was the leading political event on social media in Brazil in the past two years, counting 1.2 million online references in less than 24 hours.

The implications of the ruling exceed the realms of social media, of course. Last July, the court found Lula guilty of receiving a beachside apartment from a construction company in exchange for lucrative contracts in state projects. Now, the appellate court not only unanimously declined Lula’s appeal, but also voted to increase his sentence from nine to twelve years in prison. More than sending one of the most popular presidents in Brazilian history to jail, the sentence makes Lula ineligible to run for the coming October presidential elections (under Brazil’s Clean Slate law). The former union leader-turned president still has a few more routes of appeal left—he has denied any wrongdoing and already reaffirmed his presidential nomination—but the prospects are far from rosy.

Public opinion is very much divided over the recent court’s decision. Opponents of Lula celebrated the ruling and the ousting of whom they consider the “head of a crime organization.” The Brazilian stock exchange closed on a record high (up 3.72 percent) on the day of the verdict, indicating how badly investors wanted Lula out. Demonstrating the judiciary’s mistrust in the former president, a federal judge ordered the seizure of Lula’s passport the following day. Lula’s supporters, however, are confident in his innocence and maintain that the Car Wash investigation has deteriorated into a political witch-hunt against him and the Workers’ Party. They point to irregularities in the tribunal’s proceedings and see its ruling as a direct continuation of the 2016 impeachment of President Dilma Rousseff (Lula’s successor in the Workers’ Party). Even some conservative commentators criticized the judicial process. Indeed, the hastiness of the appellate court in considering Lula’s appeal—typical cases wait in line for over a year before getting a hearing—and the fact that his charges were far less severe than those of other politicians who stole millions but were never indicted cast the court’s decision in a suspicious light, at best.

For now, however, Lula leads the polls, earning over 36 percent of the potential votes in the coming October election. What is the reason for his enduring strong appeal? Lula’s magnetic charisma, and the Workers Party’s sophisticated political mechanism that cultivates support across Brazil’s poor northeast are key factors. It is also true that none of the other presidential hopefuls have yet been able to offer a compelling platform, and voters tend to stick with what they remember to have worked. But this is only half the story. Perhaps it is worthwhile to revisit some of the advancements Lula and his successor Rousseff have implemented during their terms, particularly in regards to human rights.

The biggest success of Lula’s government was the transformative and internationally-celebrated bolsa família program, which lifted 20 million Brazilians above poverty level. The plan, part of Lula’s Fome Zero (Zero Hunger) policy, was accompanied by various other programs that expanded access to postsecondary education (ProUni), increased rural credit to poor farmers (PRONAF), and reduced food insecurity (PAA). The administration also raised the minimum wage and advanced policy change in regards to housing, health, and land rights for various populations (among them quilombo communities). Many of these programs were further expanded under Dilma Rousseff’s Brasil Sem Miseria (Brazil Without Extreme Poverty) policy. Lula’s government also promoted racial equality and encouraged affirmative action mechanisms in the education system (through REUNI and SINAPIR). Rousseff later enacted the latter, passing the pioneering Quotas Law that requires federal universities to reserve up to 50% of their admission spots to students of low-income families and African or indigenous descent. Of course, Rousseff’s centerpiece of human rights policy was the formation of Brazil’s National Truth Commission (2012-2014), which examined human right violations taking place under the country’s military dictatorship (1964-1985).

This concise list indicates the level of commitment to social and human rights policy under the Workers’ Party rule. This is in addition to a momentous reform in environmental policy, which among other things drove deforestation of the Amazon down by over 80% (through the PPCDAm plan). Notwithstanding various criticisms levelled against some of the above programs, Lula and Rousseff’s agenda had a dramatic, typically positive effect on the lives of Brazilians, particularly low-income citizens. It is perhaps no surprise that Lula still captures the hearts of millions of voters. President Michel Temer, who took office after Rousseff’s impeachment in 2016, had already scaled down many of Lula’s initiated programs. The long-time supporter of the soy and cattle rancher oligarchy had also promoted concessions to mining in national protected areas, launched a massive privatization plan, curbed public spending, and is set to pass more austerity measures—among them a substantial cut in pension benefits. Just last month President of the Lower House Rodrigo Maia had publicly said that the Bolsa Família program “enslaves people.”

To be sure, the current alternatives for the presidency pale in comparison to the now convicted-former president Lula. Temer is perhaps the least favorite president since the end of military rule. His approval ratings are in the single digit range, and in recent poll, 90% of Brazilians said they would not vote for any candidate aligned with the current government’s platform. More alarming is the fact that the leadership vacuum invites reactionary, threatening waves. Currently second in the polls for the 2018 Presidential election is federal congressman Jair Bolsonaro, a former military officer who aspires to be Brazil’s next Trump—or perhaps Rodrigo Duterte. Promising to uproot corruption for good, Bolsonaro has already expressed his support of torture and extrajudicial killing of criminals. Various times he spoke about the military dictatorship with nostalgia, reminiscing of the regime’s “law and order.” And he suggested that beating your children can prevent them from becoming gay.

Bolsonaro’s controversial homophobic, racist, and hateful statements find sympathetic ears with those despaired of the ongoing economic recession, political stagnation, and peaking crime rate. Many of them have lost faith in the democratic institutions, and are slowly moving towards acceptance of authoritarianism. A recent survey concluded that 43% of the population would support a “temporary military intervention,” and another poll showed that 23% of Brazilians would back either a military regime or a “strong leader.” As the notion of a military coup is no longer taboo in public debate, and with Lula’s political future uncertain, Brazilians—and especially human rights advocates—should brace themselves for an intense, explosive year.

Eyal Weinberg is a PhD candidate in the History Department at The University of Texas at Austin, and he is a member of the 2017-2018 Working Paper Series Editorial Committee. His area of focus is twentieth-century Brazil.

Economic Sanctions: Effective Enforcement Method for Labor Standards?

by Julie Wilson

1 FEB 2018

Although including labor standards in international trade agreements has had some effect on recognizing and enforcing fair labor practices, such provisions fail to significantly improve these practices on a global scale. Labor standards are included in trade agreements because they are considered a barrier to free trade. Currently, existing standards are largely unenforceable; however, targeted economic sanctions may strengthen their efficacy.

The Development and Current Status of Labor Standards in Trade Agreements

Before labor standards were prevalent in trade agreements, such agreements initially focused on lowering tariff barriers to trade. But by the 1970s, the General Agreement on Tariffs and Trade (GATT) and subsequent World Trade Organization (WTO) rounds had decreased tariff rates enough that they no longer significantly barred trade. Thus, attention shifted to nontariff barriers, including import licensing, rules for valuation of goods at customs, pre-shipment inspections, and rules of origin.[1] The discussion of nontariff barriers led to discussions of other areas related to trade, such as labor standards.

As a result of this shift in focus, growing domestic political pressure in the US to include enforceable labor standards in trade agreements has emerged. When Congress granted the Executive branch authority to negotiate the Trans-Pacific Partnership, Congress specifically included labor standards as a trade objective.[2]

The US has recently started to include more labor provisions in its trade agreements, including the US—Jordan Free Trade Agreement; the Canada—Chile Free Trade Agreement; and the North American Agreement on Labor Collaboration (NAALC).[3] Where enforcement exists at all, approaches range from treating trade-related labor violations as trade violations (e.g., import bans) or developing separate enforcement mechanisms to fine violations (e.g., child labor). Most such agreements, however, fail to require that labor standards align with international standards.

The Purpose of Labor Standards in Trade Agreements

Stakeholders disagree on the impact of labor standards on fair conditions and trade practices. Stakeholders in favor of including standards warn that countries with exploitative labor practices gain unfair trade advantages. This so-called “race to the bottom” forces other countries to lower their labor standards to compete in the market.[4] Such stakeholders believe that including labor standards in trade agreements would reveal unfair and exploitative labor practices in countries that would otherwise be opposed to improving their domestic labor practices. Countries would be held accountable for compliance failures through economic sanctions, the primary tool for enforcing labor standards compliance.[5]

Alternatively, stakeholders against enforcing labor standards claim that they would interfere with free trade and impede efficiency. Under this view, the “race to the bottom” idea is a myth; rather, enforcing labor standards would disadvantage less developed countries through decreased market access, decreased trade, and worse working conditions for laborers.[6]

The Reality of Labor Standards in Trade Agreements

It is likely that labor standards in trade agreements would effect some change, but only for the worst offenders because economic sanctions are ultimately a limited tool.[7]

The argument for including labor standards relies on the assumption that labor standards can be enforced. However, current labor standards are largely unenforceable. Economic sanctions suffer multiple efficacy problems. First, the standards they enforce may not be internationally recognized. Second, sanctions ignore that some countries lack sufficient resources for immediate improvement. Third, trade sanctions can be coercive, convincing small and poor countries to comply in order to resist the high cost of violations.[8] Finally, primary international trade and labor organizations lack effective recognition and compliance mechanisms. Thus, labor standards are limited by their enforcement capacity.

The most serious obstacle facing effective implementation of economic sanctions is disagreement over how to define compliance with labor standards, which in turn makes enforcement of such standards tenuous. Without common definitions of rights such as “freedom of association” or “right to collective bargaining,” there is no baseline to establish what behavior is or isn’t compliant.[9] Without this foundation, performance cannot be measured by neutral observers.

International bodies recognize labor standards in inconsistent ways. The WTO does not explicitly recognize labor standards violations as violations of its rules.[10] Instead, it merely affirms the standards of the International Labour Organization (ILO).[11] The ILO outlines labor standards, but it faces challenges in determining a country’s obligation to these standards. For example, although the ILO generally prohibits private contractors from employing prison labor, many countries, including the US, “consider private contractors to be an integral part of the modern management of penal institutions.”[12] Additionally, unlike the WTO, the ILO has virtually no enforcement power. The ILO may only provide technical assistance to violating countries and cannot authorize retaliation or sanctions for violations. Thus, although the ILO recognizes labor standards, it has limited abilities to induce compliance.[13]

In multilateral agreements, the recognition of labor standards varies widely. Some agreements include labor standards as side agreements, while others explicitly incorporate labor standards into the main text of the agreement. However, even incorporated standards are ultimately limited by the efficacy of their enforcement mechanisms.

The incorporation of labor standards into multilateral agreements has achieved some success with targeted economic sanctions. For example, the US’s Generalized System of Preferences (GSP) program allows developing countries to export certain products in specified amounts to the US duty free. Ten years after the program began in 1984, Congress implemented an additional requirement: developing countries must take steps to implement basic labor standards. Failure to do so would threaten that country’s participation in the GSP program.

GSP countries have been responsive to this condition. For example, Swaziland implemented constitutional changes to protect workers’ rights and reach compliance with the program. However, of the fifteen countries sanctioned by the US, seven countries have not yet been reinstated. Labor standards as a solution to poor working conditions overlooks the cost of isolating these economies while they remain non-compliant. Regardless of the reason for their prolonged violation, lack of access to this program prevents these countries from accessing GSP’s economic aid.[14]

Trade sanctions may succeed in inducing compliance for clear-cut violations. However, they are unlikely to be effective at reaching gray areas – which include many laws and practices surrounding working conditions. Thus, until more productive mechanisms of compliance emerge, labor standards remain a limited tool to improve workers’ conditions globally.

Work Cited

[1] Non-tariff Barriers: Red Tape, etc., https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm9_e.htm (Last visited November 30, 2017).

[2] Office of the United States Trade Representative, The Trans-Pacific Partnership: Detailed Summary of U.S. Objectives (September 2015), https://ustr.gov/sites/default/files/TPP-Detailed-Summary-of-US-Objectives.pdf.

[3] Peterson Inst. for Int’l Econ., Trans-Pacific Partnership: An Assessment, 85 (Cathleen Cimino-Isaacs et al eds., 2016). https://piie.com/publications/chapters_preview/338/4iie3322.pdf.

[4] Robert M. Stern and Katherine Terrell, University of Michigan, Labor Standards and the World Trade Organization, (August 2003).

[5] Peterson Inst., supra at note 3.incorporatedctivefined violations.ns are used in a targeted method.onsnt. reach compliance. See also UGanda.uch standards meani

[6] Id. at 73-74.

[7] Id. at 74.

[8] Theodore Moran, The Brookings Institution, Trade Agreements and Labor Standards (May 1, 2004) https://www.brookings.edu/research/trade-agreements-and-labor-standards/.incorporatedctivefined violations.ns are used in a targeted method.onsnt. reach compliance. See also UGanda.uch standards meani

[9] Id.

[10] Rorden Wilkinson, Labour and Trade Related Regulation: Beyond the Trade-Labour Standards Debate?, 1 British Journal of Politics and International Relations 2, 165-191 (1999).

[11] Labour Standards: Consensus, Coherence and Controversy, https://www.wto.org/english/thewto_e/whatis_e/tif_e/bey5_e.htm (Last visited November 30, 2017).

[12] Moran, supra note 10.

[13] Gary Burtless, Workers’ Rights: Labor Standards and Global Trade, September 1, 2001, https://www.brookings.edu/articles/workers-rights-labor-standards-and-global-trade/.

[14] Robert A. Rogowsky and Eric Chyn, US Trade Law and FTAs: A Survey of Labor Requirements, July 2007, https://www.usitc.gov/publications/332/journals/trade_law_ftas.pdf.

Julie Wilson is a second-year law student at the University of Texas School of Law. She is Human Rights Scholar at the Rapoport Center for Human Rights and Justice and Chair of the 2017-2018 Working Paper Series Editorial Committee.