Category: Working Papers

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.

Child Labor and the Mountain that Eats Men

by Sofia Bonilla

12 JAN 2018

The town of Potosí in Bolivia rests at the bottom of a soaring, 15,800-foot mountain called Cerro Rico. The mountain provides the primary, and nearly only, source of income for the town of 240,000 inhabitants. During their 16th-century conquest of Latin America, the Spanish enslaved the indigenous people there, imported African slaves from overseas, and forced both groups to mine silver from the mountain. At the time, Cerro Rico held one of the richest silver deposits in Bolivia and the world and was a source of abundant wealth for the Spanish Empire. Eventually, the slaves nearly hollowed out the mountain—although there remains a residual supply of silver, Bolivian miners mainly extract tin and zinc.[1]

As a result of years of mining activities, modern-day Cerro Rico is riddled with caverns, shafts, sinkholes, and precarious tunnels, so much so that engineer Nestor Rene Espinoza describes it as “a slab of Swiss cheese.”[2] The risks associated with mining this mountain are not new. Historians estimate that over eight million miners have died since extraction began at Cerro Rico in the mid-1500s.[3] However, these are not the only reasons it is called “The Mountain That Eats Men.” Miners, a majority of whom are of indigenous descent, still use equipment introduced in the nineteenth century: headlamps powered by fire, manual hammers and pickaxes, and outdated drills. Even more startling is the prevalence of child miners, some of whom start mining at age twelve. These children work in oxygen-scarce conditions, risk falling down mine shafts hundreds of feet long, and face being blown to pieces by a surprise detonation. Despite these treacherous conditions, the most common killer is silicosis—a lung disease caused by breathing in rock particles that reduces one’s lifespan to just forty years—locally known as “black lung.”[4] Miners wear face masks for protection, but the thin paper layer does little to stave off the disease.

The child miners earn less than two dollars and fifty cents (US) per day on the precarious mountain, sometimes less, depending on how much silver, tin, and other precious minerals they can extract. Many of these young miners have nowhere else to turn. Cerro Rico is their only option for work. Without their labor to supplement—or even provide—the family income, their families will starve. A majority of the child miners and their families live on the side of the mountain in huts powered by a single light bulb. They perform this extremely dangerous work in the early hours of the morning so they are able to attend school during the day.[5]

Though the many dangers of Cerro Rico loom over Potosí, “[n]either the labor ministry nor COMIBOL—the national mining agency that leases concessions to more than 30 mining cooperatives grouping together some 15,000 miners on Cerro Rico—even attempt to enforce health and safety laws.”[6] Oscar Cáceres, a COMIBOL geologic engineer, explains that the state is not responsible for deaths or accidents on or within the mountain, leaving miners of all ages to their own devices upon entry.[7] The child labor laws in Bolivia allow children as young as ten years old to work legally,[8] while the International Labor Organization sets the general minimum employment age at fifteen years and the minimum age for hazardous work at eighteen.[9] The Bolivian law was created in an effort to make child labor a safer, more regulated practice,[10] but work environments such as Cerro Rico suggest that the law has failed in this respect.

Rather than lowering the legal age of work, governments can create social insurance programs so that children are not expected to supplement household incomes. These programs, such as conditional cash transfers (CCTs), can help poor families—the main demographic that practices child labor—by awarding a monthly salary in exchange for their children attending school. This tactic was successfully implemented through Brazil’s state-funded Bolsa Família program which both prohibits child labor and “provid[es] financial incentives [of twelve USD per month] to poor families that ensure that their children attend school regularly and receive vaccinations.”[11] The World Bank testifies to Bolsa Família’s success, citing it as “one of the key factors behind the positive social outcomes achieved by Brazil in recent years.”[12]

The Bolivian government introduced its own national CCT program in 2006,[13] aimed at alleviating the pressure on children and enabling them to focus on school. The program, called the Bono Juancito Pinto, awards an annual two hundred Bolivianos (twenty-eight USD) to families whose children attend at least eighty percent of the school year. In 2012, President Morales announced that the CCT program had reduced the dropout rate from “6.1 percent in 2006 to 2.0 percent in 2012.”[14] Although UNICEF confirms the program’s positive impact on Bolivia, [15] research by James W. McGuire reveals that Bono Juancito Pinto mainly improved drop-out rates of preschool, first- and second-graders—not secondary school students, who are the main participants in child labor.[16] Even after the program was later extended to include secondary school students, McGuire found that the Bono Juancito Pinto had virtually no effect on child labor “given that the school day in Bolivia is only 4 hours long, and is, therefore, compatible with the average workday length of child laborers, which is about 5.5 hours.”[17] Despite these shortcomings, the program is still in use and is expected to assist 179,068 students in Potosí[18] as of October 2017.

The silver extracted and shipped internationally from Cerro Rico carries with it centuries of hazardous labor practices and millions of deaths. This phenomenon is not unique to Potosí. There are “218 million children between 5 and 17 years” working worldwide, with “almost half of them, 73 million, work[ing] in hazardous child labour.”[19] Children around the world are risking their safety in order to maintain their family’s livelihood in the face of poverty, violence, labor exploitation, and ineffective governmental regulation. Governments, in turn, must continue searching for impactful methods to aid poor families and end the dangerous cycle child labor produces. Programs like Bono Juancito Pinto and other financial plans serve as helpful starting points, but cannot alone resolve this problem. Without deliberate and effective action, the global economy will continue to place the lives of children at risk.

Work Cited

[1] Simeon Tegel, “Cerro Rico: The Mountain That Eats Men.” Public Radio International. March 20, 2013. Accessed November 14, 2017. https://www.pri.org/stories/2013-03-20/cerro-rico-mountain-eats-men.

[2] Juan Forero, “Bolivia’s Cerro Rico: The Mountain That Eats Men.” NPR. September 25, 2012. Accessed November 14, 2017. https://www.npr.org/2012/09/25/161752820/bolivias-cerro-rico-the-mountain-that-eats-men.

[3] Dan Collyns, “’Bolivia’s Cerro Rico mines killed my husband. Now they want my son.’” The Guardian. June 24, 2014. Accessed February 7, 2018. https://www.theguardian.com/global-development/2014/jun/24/bolivia-cerro-rico-mine-mountain-collapse-miners.

[4] See supra note1.

[5] Viktorija Mickute, “Mineritos: Bolivia’s Child Miners.” Global Journalist.org. September 4, 2014. Accessed February 8, 2018. http://globaljournalist.org/2014/09/mineritos-bolivias-child-miners/.

[6] See supra note 1.

[7] Jean Friedman-Rudovsky, “Mined to Death: Why Bolivia’s Cerro Rico Mountain Is Collapsing.” TIME Inc. June 16, 2011. Accessed November 14, 2017. http://content.time.com/time/world/article/0,8599,2077641,00.html.

[8] NPR staff, “Bolivia Makes Child Labor Legal, In An Attempt To Make It Safer.” NPR. July 30, 2014. Accessed November 14, 2017. https://www.npr.org/2014/07/30/336361778/bolivia-makes-child-labor-legal-in-an-attempt-to-make-it-safer.

[9] International Labor Organization, Minimum Age Convention, 1973, (No.138). The convention does provide for the possibility of initially setting the general minimum age at 14 (12 for light work) where the economy and educational facilities in a given country are insufficiently developed.

[10] See supra note 6.

[11] Council On Hemispheric Affairs, “Made in Brazil: Confronting Child Labor.” COHA. November 16, 2010. Accessed November 14, 2017. http://www.coha.org/made-in-brazil-confronting-child-labor/.

[12] World Bank staff, “Bolsa Família: Changing the Lives of Millions in Brazil.” World Bank. August 22, 2007. Accessed February 8, 2018. http://www.worldbank.org/en/news/feature/2007/08/22/bolsa-familia-changing-the-lives-of-millions-in-brazil.

[13] James McGuire, Conditional Cash Transfers in Bolivia: Origins, Impact, and Universality. (Wesleyan University, 2013).

[14] See supra note 9.

[15] Mariana Perez, “UNICEF Destaca El Pago de Los Bonos Sociales Para Los Niños.” Cambio. November 4, 2017. Accessed December 8, 2017. http://www.cambio.bo/?q=node/24663.

[16] See supra note 10.

[17] See supra note 10.

[18] Rocío Ruiz,. “El bono Juancito Pinto beneficia a 179.068 estudiantes en Potosí.” El Potosí. October 23, 2017. Accessed December 8, 2017. http://elpotosi.net/local/20171023_el-bono-juancito-pinto-beneficia-a-179068-estudiantes-en-potosi.html.

[19] International Labor Organization. “Child Labour.” ILO. September 2017. Accessed November 14, 2017. http://www.ilo.org/global/topics/child-labour/lang–en/index.htm.

Sofia Bonilla is a senior at the University of Texas at Austin majoring in Plan II Honors, International Relations & Global Studies, and Iberian & Latin American Literatures & Cultures. She is an Undergraduate Intern at the Rapoport Center for Human Rights and Justice.

Society Pays for Unpaid Internships

by Patrick Aana

13 DEC 2017

Unpaid internships are often criticized for taking advantage of students and recent graduates who are expected to contribute labor without compensation. But under another paradigm, unpaid interns are the lucky ones—many potential candidates cannot even consider such positions because they lack the funds to support themselves throughout the experience. This class-based disparity is worrying, especially considering that internships increasingly determine future job opportunities and that unpaid positions are more prevalent than ever.[1] The unequal access inherent in unpaid internships has led some to call for their prohibition, criticizing them not only for exploiting young workers but also for perpetuating inequality across generations.[2] These criticisms are particularly relevant to the public and nonprofit sectors, where internships are more likely to be unpaid than paid,[3] and to international institutions like the United Nations where internships indirectly affect relationships among future generations of world leaders. But requiring that all internships be paid positions will not necessarily increase opportunities available to less privileged candidates; other solutions should also be considered to ensure that barriers to such positions are effectively addressed.

In 2015, unpaid internships drew scrutiny when David Hyde, a 22-year old United Nations intern, apparently unable to afford rent in Geneva, was discovered living in a tent.[4] The proliferation of unpaid internships has seen rapid growth in international institutions like the UN, where the number of unpaid interns each year has increased from 131 in 1996 to over 4,000 in recent years, most of whom serve in the high-cost cities of Geneva and New York.[5] Hyde admits that he falsely confirmed to interviewers that he would be able to support himself in Geneva, but claims that he was only driven to do so when telling the truth about his circumstances led to several rejections.[6] His report highlights the troubling implications of unpaid internships: candidates must reveal their socioeconomic status, meaning that one’s personal financial situation becomes a condition for gaining employment. Since a disproportionate number of interns at the UN are from developed countries, one cannot ignore the likelihood that many qualified candidates around the world (and especially in the Global South) self-select out of applying.[7]

In the United States, unpaid internships are subject to some regulation, but they are generally acceptable in public service organizations. The US Department of Labor (DoL) applies six criteria when determining whether or not an unpaid intern is actually entitled to minimum wage and overtime.[8] While this test allows unpaid internships to exist in the private sector, it subjects them to scrutiny. But because it is difficult to enforce, its effectiveness is dubious.[9] In contrast to the theoretical scrutiny of private firms, the DoL sympathizes with public service organizations that may not have the capacity to compensate individuals who may opt to volunteer their time regardless, considering unpaid work to be “generally permissible” in the public and nonprofit sector “where the intern volunteers without expectation of compensation.”[10]

But as a matter of policy, should we accept unpaid internships in public service organizations as more palatable? Regulations like those seen in the US attempt to address the problem of exploitation,[11] but they do not address the inequality that unpaid internships appear to perpetuate. Even if an unpaid internship does not exploit the individual intern, it can exclude those who cannot afford to work without an income. Should exposure to nonprofit or government work be limited to those with the means to work for weeks or months at a time without making money? While it is these public service organizations that often lack the resources to compensate, they, most of all, should be inclusive—on principle and to better serve their communities.

Reasoning that unpaid internships are damaging to social mobility, official calls to end them are beginning to emerge.[12] In October 2017, the United Kingdom’s Social Mobility Commission released a study showing that a majority of Britons supported a ban on long-term unpaid internships.[13] The chair of the commission, Alan Milburn, described unpaid internships as a “modern scandal which must end,” stating that “young people from low income backgrounds are excluded because they are unpaid. They miss out on a great career opportunity and employers miss out from a wider pool of talent. Unpaid internships are damaging for social mobility. It is time to consign them to history.”[14] Even on an international level, European Union ombudsman Emily O’Reilly called for the European External Action Service to pay all of its almost 800 interns so as to “allow greater access for young people of all backgrounds.”[15] Corroborating what many firms have indicated about their preference for hiring graduates with internships, O’Reilly remarked that such internships “can be a significant stepping stone in young people’s careers and should be available to as broad a range of people as possible.”[16]

However, an outright ban on unpaid internships seems unlikely to improve the opportunities accessible to young people.[17] It is likely that a resulting smaller supply or higher demand in these positions will still disadvantage those of lower economic means.[18] Similar to arguments made on the issue of the minimum wage, organizations may have no choice but to offer fewer positions, and those internships that are still available will still be more likely to go to students with better networks and an elite-university education.

There are other ways of increasing accessibility of these positions without increasing the financial pressure on the host organization, such as providing a universal basic income[19] or fundraising from third parties. Interns may be able to obtain stipends and grants from the host organization, or from universities and third-party foundations as well.[20]

Though no landmark changes have been implemented at the UN since Hyde was discovered in his tent, it is worth noting that the International Labor Organization, more than a decade ago, decided to pay its interns after one was found sleeping in the basement.[21] The UN as a whole should follow suit, but the organization claims that it does not have the resources to pay interns and that mandating paid internships requires authorization from member nations.[22] Perhaps a quota system, parallel to that already in place in its hiring practices but unfortunately not replicable in local and national organizations, would make these positions more accessible and ensure proper representation of young people around the world.

Unpaid internships enable privilege to follow privilege and limit the career opportunities for those from disadvantaged backgrounds. Change is desperately needed and simply ending unpaid internships may not be the best solution. The problem is especially striking at the United Nations, an institution that should represent the height of integrity and rights-based practices given its organizational mandate. Currently, the UN’s unpaid internships marginalize developing countries and thus undermine the organization’s moral appeal and institutional legitimacy instead of promoting international inclusion and equity. Perhaps the more prudent question to ask is not whether unpaid interns should be compensated, but how can they be compensated in a way that reduces obstacles and elevates future generations.

Work Cited

[1] Cf. Generation i, The Economist (Sept. 12, 2014), https://www.economist.com/news/international/21615612-temporary-unregulated-and-often-unpaid-internship-has-become-route; Jamie Doward and Matilda Munro, Poorer Graduates struggle for jobs as unpaid internships soar, The Guardian (April 15, 2017), https://www.theguardian.com/society/2017/apr/15/unpaid-internships-soar-poorer-graduates-struggle-ippr-study (describing the growth of internships as a whole as well the increasing use of unpaid positions).

[2] See generally Rob Davies and Elena Cresci, Growth in unpaid full-time internships raises fears for social mobility, The Guardian (April 21, 2017), https://www.theguardian.com/money/2017/apr/21/growth-in-unpaid-full-time-internships-raises-fears-for-social-mobility.

[3] Kate Newman, For interns at nonprofits, don’t expect a paycheck, Aljazeera America (Aug. 25, 2014), http://america.aljazeera.com/articles/2014/8/25/nonprofit-interns.html.

[4] Aisha Gani, Unpaid UN intern who slept in tent quits after media uproar, The Guardian (Aug. 12, 2015), https://www.theguardian.com/world/2015/aug/12/unpaid-un-intern-who-had-to-sleep-in-a-tent-quits-after-media-uproar.

[5] Brandon Jordan, Why Doesn’t the United Nations Pay Its Interns?, The Nation (March 10, 2017), https://www.thenation.com/article/why-doesnt-the-united-nations-pay-its-interns/.

[6] Aisha Gani, supra note 4.

[7] Cf. Brandon Jordan, supra note 5 (noting almost as many interns came from France as those from all African nations).

[8] Fact Sheet #71: Internship Programs Under the Fair Labor Standards Act, Department of Labor Wage and Hour Division (April 2010), https://www.dol.gov/whd/regs/compliance/whdfs71.htm

[9] Steven Greenhouse, The Unpaid Intern, Legal or Not, The New York Times (April 2, 2010), http://www.nytimes.com/2010/04/03/business/03intern.html.

[10] Fact Sheet #71, supra note 8.

[11] See id (including “similar to training” and “for the benefit of the intern,” among the Department of Labor’s criteria for unpaid internships).

[12] Social Mobility Commission, Unpaid internships are damaging to social mobility (Oct. 23, 2017), https://www.gov.uk/government/news/unpaid-internships-are-damaging-to-social-mobility.

[13] Kevin Rawlinson, Public backs ban on long-term unpaid internships, study finds, The Guardian (Oct 23, 2017), https://www.theguardian.com/money/2017/oct/23/public-backs-ban-on-long-term-unpaid-internships-social-mobility-commission.

[14] Id.

[15] Aleksandra Eriksson, EU foreign service should pay its interns, EU watchdog says, EUobserver (Feb. 17, 2017), https://euobserver.com/social/136937.

[16] Id.; see also Generation i, supra note 1 (discussing the growth of internships as a hiring pipeline for organizations).

[17] Darren Walker, Internships Are Not a Privilege, The New York Times (July 5, 2016), https://www.nytimes.com/2016/07/05/opinion/breaking-a-cycle-that-allows-privilege-to-go-to-privileged.html (noting that “while compensating interns is necessary, it is not sufficient.”).

[18] See generally Kate Newman, supra note 3.

[19] Sirena Bergman, If you really care about social mobility, you won’t support paying interns, Independent (Oct. 23, 2017), http://www.independent.co.uk/voices/social-mobility-paying-interns-rich-poor-divide-income-workplace-dont-support-a8015171.html.

[20] See, e.g., Darren Walker, supra note 19; Anemona Hartocollis, When Internships Don’t Pay, Some Colleges Will, The New York Times (Nov. 2, 2017), https://www.nytimes.com/2017/11/02/education/edlife/paid-internships-colleges-social-service.html.

[21] Brandon Jordan, supra note 5.

[22] Id.

Patrick Aana is a Human Rights Scholar at the Rapoport Center for Human Rights and Justice and a member of the 2017-2018 Working Paper Series Editorial Committee. 

Unequal and Under Threat: Economic Inequality and the Dangers to Environmental & Human Rights Defenders

by Scott Squires

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Abstract

In many countries with large endowments of natural resource wealth, resource extraction is considered to be the primary driver of economic development and a major contributor to GDP. Often, however, natural resource extraction is environmentally degenerative and engenders backlash among indigenous communities, conservationists, outspoken members of the human rights community, and other civil society organizations. Unfortunately, environmental and human rights defenders who speak out against such development projects are often subjected to intimidation, censorship, and violence. Increasingly, these activists are murdered for their work.

But what are the root causes when an activist is murdered or silenced for speaking out against natural resource extraction and large-scale development projects? How are neoliberal development models implicated in the dangers posed to activists, and how do conditions of in- country inequality affect the likelihood activists will be murdered? Based on linear regression analysis, I contend there is a correlation between in-country economic inequality and the threat level environmental human rights defenders face. Furthermore, this paper uses case studies to demonstrate the conditions environmental activists face in Honduras and South Africa—two countries with extreme levels of inequality. Finally, this paper makes recommendations to the international community to protect threatened activists.

Keywords: environmental law, environmental defenders, human rights, inequality, Global South

Fashioning China: Precarious Creativity of Women Designers in Shanzhai Culture

by Sara Liao

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Abstract

This study examines a copycat culture called Shanzhai, particularly looking into fashion imitations made and circulated by a group of women designers through digital media. It investigates the cultural transformation of labor taking place in China through the critical lens of precarious creativity. Women designers perform digital labor to de-fetishize the labor process of global fashion brands, which mythicizes class and commodity. These women’s fashion work lacks official recognition as meaningful labor, while their ability to make a case for the legitimacy of their work is further diminished when the state co-opts Shanzhai for its nation-building narratives. These women’s experiences of precarity and their very act of copying reveal the simultaneous possibility and impossibility of the Chinese Dream.

Keywords: precarious creativity, women, digital labor, Shanzhai, fashion imitations, creative industries, Chinese Dream

About the author:

Sara Liao is a media scholar whose research interests lie in the intersection of digital media, gender and labor studies, globalization, and popular cultures, with a specific focus on Asian societies. She will join the School of Journalism and Communication at the Chinese University of Hong Kong in fall 2017.

Revised version published as “Fashioning China: Precarious Creativity of Women Designers in Shanzhai Culture,” Communication, Culture, & Critique. Advance online publication. View here.

Legitimacy on Trial: Transnational Governance, Local Politics, and the Battle over Gender-Violence Law in Nicaragua

by Pamela Neumann

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Abstract

The killing and abuse of women remains one of the most serious problems confronting Latin American societies. Many countries have passed a variety of laws intended to address femicide and other forms of violence against women. Yet the implementation of these laws has been inconsistent at best. This article analyzes the case of Nicaragua, which passed a comprehensive law on gender-based violence (Law 779) in 2012. While celebrated by local women’s organizations, Law 779 was subsequently weakened through a series of legislative reforms and executive decrees. This article seeks to explain why state actors in Nicaragua initially supported Law 779 and later sought to undermine it. Despite the development of transnational governance structures over the last two decades, this article demonstrates how local political conditions remain central to explaining the trajectory of gender-violence legislation, particularly in contexts characterized by a high concentration of political power. Through an analysis of Law 779, this article contributes to broader debates about the nature of state legitimacy and the potential of legal advocacy to address violence against women.

Keywords: gender, violence against women, gender-based violence, Latin America, women’s rights, transnational feminism, state legitimacy

About the author:

Pamela Neumann earned her M.A. in Latin American Studies and Ph.D. in sociology from the University of Texas at Austin. Her research interests include gender-based violence, social movements, and development in Latin America. Her current book project examines the politics of gender violence law and women’s everyday experiences with the legal justice system in Nicaragua. Her work has been published in Gender & Society, Social Problems, and Social Forces.

Mobility across Borders and Continuums of Violence: Experiences of Bangladeshi Women in Correctional Homes in Kolkata

by Rimple Mehta

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Read a response here.

Abstract

The trajectory of violence in the lives of women engaging in transborder mobility can be plotted along a continuum where the border becomes one moment and site of violence in a series of violent experiences. Being masculinised and militarised the border becomes the breeding ground for gender–based violence. In this context, the paper discusses the experiences of violence in the lives of Bangladeshi women in Correctional Homes in Kolkata. Their narratives suggest that perpetrators and sites of violence change but the Indo-Bangladesh border remains central to their experiences of violence. This paper focuses on the violence experienced by these women before crossing the border, while crossing the border to come to India, during their stay in India and while returning to Bangladesh; coupled with emotions of fear, anxiety and shame. Their experiences of violence need to be seen in the context of their non-normative ways of being – their challenge to the norms instituted for women by the family, state and society. Their so–called deviations from normative modes of behaviour put them in situations of extreme vulnerability.

Keywords: gender-based violence, border studies, mobility

About the author:

Dr. Rimple Mehta is an Assistant Professor at the School of Women’s Studies, Jadavpur University, India. She has studied Sociology, Social Work and Women’s Studies and has written on gender, borders, sexuality and prisons. Her paper titled “So Many Ways to Love You/Self: Negotiating Love in a Prison” won the 2013 Enloe Award and was published in the International Feminist Journal of Politics. She has also been associated with organisations and networks working against violence on women and has worked on cases of women affected by domestic violence.

Shining Light on Bad Practices: Re-assessing Tools for Corporate Accountability in Burma

by Kate Taylor

30 NOV 2017

Over the last twenty years, transparency has become a watchword within international policy-making institutions. Specifically, enhanced transparency has emerged as a critical component in the pursuit of corporate accountability for human rights abuses. Transparency-enhancing initiatives related to corporate accountability have proliferated enormously over this period, and their various forms have diversified substantially — from voluntary codes of conduct to mandatory reporting requirements. Despite this breadth, nearly all transparency-enhancing initiatives, whether legally mandated by the state or voluntary private initiatives, push corporations to make periodic public disclosures of financial and non-financial matters (primarily regarding human rights, labor, environmental and anti-corruption).

For human rights advocates embracing transparency as an accountability tool in the business and human rights arena, the broadly stated theory of change is that shining light on bad corporate practices can lead to remedy and reform. Of course, human rights advocates who promote such transparency do not accept corporate disclosures at face value — and many are willing to scrutinize their veracity and completeness. Yet, in assessing advocacy and accountability tools in the business and human rights arena, it seems necessary to examine the opportunity cost of this focus on transparency, querying what it both overlooks and obscures.

Recent reforms to Burma’s investment law illustrates the risks of over-emphasizing transparency as an accountability tool. Throughout 2016-17, the newly-sworn-in National League for Democracy (NLD) Burmese government rewrote its investment law, as well as its subordinate rules and regulations.  The reform process was undertaken by Burma’s Directorate of Investment and Company Administration (DICA) with technical assistance from the International Finance Corporation (IFC).

Human rights NGOs provided feedback with the aim of embedding respect for human rights and the environment within Burma’s new investment law regime. Ensuring that the Law and Rules incorporated rigorous transparency provisions was of fundamental importance to human rights advocates — bearing in mind the country’s egregious legacy of business-related human rights abuses and the opacity which has long-characterized Burma’s particular brand of crony capitalism.

Civil society feedback submissions covered a number of human rights issues and included transparency as a key concern. Notable among these suggestions was that the new government impose a set of “Responsible Investment Reporting Requirements,” which would require businesses investing over a certain monetary threshold to publicly disclose an annual report addressing a wide range of issues, including human rights, environmental matters, labor rights, anti-corruption measures, property acquisition and military communications.

Ultimately, civil society submissions regarding transparency were among the few suggestions taken up by DICA and the IFC in the re-writing of the new Investment Law and Rules. The final iteration of the Rules requires basic project information to be publicly disclosed before the government makes large-scale investment decisions. Additionally, it requires investors to submit annual reports on certain financial and non-financial matters to the Myanmar Investment Commission (which the Commission may decide to make public), including details of the investments’ impact on the environment and local community — but the disclosure requirements are bare-boned and are not accompanied by serious institutional buy-in on the part of the Myanmar Investment Commission. Ultimately, the drafters were hostile to rigorous human-rights based reporting requirements, which would have required due diligence on the part of companies, despite the urging of human rights NGOs. It seemed that the government, together with the IFC, was willing to incorporate only the smallest measure of transparency into the legal regime.

Without much more, embedding strong transparency requirements into Burma’s new investment law regime would do little to rectify the serious pathologies which characterize its business and human rights landscape. Enhanced transparency in Myanmar’s investment climate may begin to foster responsible business practices and encourage due diligence, but it does not promise to address broader structural issues that directly cause or exacerbate business-related human rights abuses extant in Burma, such as reckless investments in conflict-affected areas, systemic corporate tax avoidance, mammoth land grabs and displacement, and chronically weak labor-rights institutions.

Indeed, allowing irresponsible businesses to proceed as long as their disclosure requirements are met annually may actually legitimate a range of harmful business practices and obscure others that are undisclosed. Frequently, corporate disclosure efforts (especially in weak institutional contexts, where the prospects for audit and scrutiny are scarce) are little more than public relations exercises, with scant connection to the businesses’ real impacts on the ground. By emphasizing transparency as a global governance tool, we risk allowing corporations to give the allure of being a ‘rights-respecting’ or ‘socially responsible’ entities, with no substantive responsibilities being met to those most affected by their operations.

The focus on enhancing transparency also fails to support local communities affected by large-scale investments that frequently face intimidation and repression for speaking out against projects. Merely having information does little to open up spaces for contestation and access to justice. In addition, without linkages to domestic or transnational advocacy networks, ‘access to information’ means little for impacted communities. In the case of highly technical corporate disclosures, such reports can easily become sites of exclusion. The disclosure of a company’s Environmental Impact Assessment (EIA) is a salient example. EIAs are largely unintelligible for those untrained in environmental management (and in Burma, are frequently disclosed in languages and terms not understood by impacted communities). Yet, in producing and disclosing an EIAs, companies often claim to have met their obligations toward community consultation.

As a governance tool, information disclosure and transparency fit well within the prevailing neoliberal logic and its preference for due process rights over substantive equalities. Human rights advocates would be remiss in their work to solely focus on such tools. Transparency is a laudable beginning for investments in Burma, but it is the start, and not nearly the end of the broader accountability project. The risk that mere transparency is conflated with accountability and justice should not be overlooked.

Kate Taylor is a human rights lawyer and Postgraduate Fellow at the Rapoport Center for Human Rights and Justice, and is a member of the 2017-2018 Working Paper Series Editorial Committee. Her impressions in this post are drawn from her experience working in Burma on human rights reforms to the country’s investment law regime. 

Legalized Slavery in the United States Implemented Through the “Justice” System

by Courtney McGinn

26 APR 2017

The prison system in the United States equates to modern-day slavery due to its targeting of racial and ethnic minorities. There are 2.2 million people in the nation’s prisons and jails, which amounts to a 500% increase over the last 40 years. One in seventeen black men, aged between thirty and thirty-four, were in prison in 2015, as were one in forty-two Hispanic males, and one in ninety-one white males in the same age group. Today, people of color make up thirty-seven percent of the United States population but sixty-seven percent of the prison population. African Americans are “more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences.”  Similarly, African American men are six times as likely to be incarcerated as white men and Hispanic men are more than twice as likely to be incarcerated as non-Hispanic white men. One in three African American males are expected to go to prison, while one in seventeen white males are expected to do the same.[i]  In fact, no other country in the world imprisons as many of its racial or ethnic minorities as the United States does, even the highly repressive regimes in Russia, China, and Iran.[ii] Currently, the United States imprisons a larger percentage of its African American population than South Africa did at the height of apartheid.[iii]

The increase of the incarcerated population, especially the population of incarcerated minorities, is a result of a series of law enforcement and sentencing policy changes in the “tough on crime” era, not a result of more crimes committed by these individuals.  Since the official beginning of the “War on Drugs” in 1982, the number of people incarcerated for drug offenses in the United States drastically increased from 40,900 in 1980 to 469,545 in 2015, with most of those incarcerated being African Americans. The War on Drugs was allegedly in response to the crack cocaine epidemic, but this has been dispute by several civil rights activists. For example, Michelle Alexander, a highly acclaimed civil rights lawyer and the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, points out that President Ronald Reagan officially announced the current drug war in 1982, well before crack even became an issue in the media or a crisis in poor black neighborhoods.[iv] It was actually a few years after the drug war was declared that “crack began to spread rapidly in the poor black neighborhoods of Los Angeles and later emerged in cities across the country.”[v] In Michelle Alexander’s view, shared among others, this drug “epidemic” was created by the United States to continue the oppression of African Americans.[vi] In fact, the CIA admitted that the guerrilla armies it actively supported in Nicaragua were smuggling illegal drugs into the United States – “drugs that were making their way onto the streets of inner-city black neighborhoods in the form of crack cocaine.”[vii] The CIA also admitted that during the War on Drugs era, it blocked law enforcement efforts to investigate illegal drug networks that were helping to fund its covert war in Nicaragua.[viii]

As the War on Drugs continued, law enforcement began focusing on urban areas, on lower-income communities, and on communities of color. Therefore, minorities became a target for incarceration. While crack cocaine was considered an inner-city issue mostly affecting African Americans, whites were directly tied to the use of powder cocaine.[ix]  Since the 1980s, federal penalties for crack were 100 times harsher than those for powder cocaine, with African Americans disproportionately sentenced to much lengthier terms. In 2010, the crack/powder sentencing disparity reduced from 100:1 to 18:1, but the disparity still remains, leaving minorities vulnerable to inequitable treatment by the criminal justice system.

Studies show that people of every color use and sell drugs illegally at substantially similar rates to their white counterparts.[x] Such studies even frequently suggest that whites, particularly white juveniles, are more likely to partake in drug crime than people of color.[xi] Although African Americans comprise only fourteen percent of regular drug users, they account for thirty-seven percent of those arrested for drug offenses. Despite this, minorities, specifically African Americans, are far more likely to be stopped, searched, arrested, prosecuted, convicted and incarcerated for drug law violations than are whites. Today, there are more African Americans behind bars for a drug offense than the number of people who were in prison or jail for any crime in 1980. If current trends continue, one in three young African-American men will serve time in prison.[xii]

Once incarcerated, most “criminals” are required to perform mandatory, essentially unpaid, labor.  While not all prisoners are “forced” to work, most “opt” to because they have no other choice – they need the pay, no matter how low, in order to purchase food, toiletries, and other basic necessities not provided to them. Some individuals experience additional financial strain by having to pay legal fees or support their families. In places like Texas, however, prison work is mandatory and unpaid.  According the Texas Department of Criminal Justice, prisoners start their day with a 3:30 a.m. wake-up call and are served breakfast at 4:30 a.m. All prisoners who are physically able are required to report to their work assignments by 6 a.m. For prisoners who refuse to work, they are placed in solitary confinement. The Texas Department of Criminal Justice states that one of its goals is to reduce operational costs by having prisoners produce their own food, but also admits that the prison system earns revenue from “sales of surplus agricultural production.” This is all too familiar to the slavery practices that occurred years ago – the “slave” works tirelessly with no pay while the “slave master” reaps those benefits.

After incarceration, individuals continue to be marginalized by their status as “criminals.” Once labeled a felon, the older forms of discrimination that were deemed illegal after the collapse of the Jim Crow era become legal again; employment and housing discrimination, denial of the right to vote, denial of educational opportunities, denial of food stamps and other public benefits, and exclusion from jury service. [xiii] Because of these realities, it is hard to view the prison system in the United States as anything but a modern form of slavery. As Michelle Alexander stated, “[w]e have not ended racial caste in America; we have merely redesigned it.[xiv]

Work Cited

[i] Film: 13th.

[ii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 6.

[iii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 6.

[iv] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 5.

[v] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 5 (citing “The Crack Attack: America’s Latest Drug Scare, 1986-1992,” in Images of Issues: Typifying Contemporary Social Problems (New York: Aldine De Gruyter, 1995), 152).

[vi] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 5.

[vii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 6.

[viii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 6.

[ix] Film: 13th.

[x] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 7.

[xi] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 7.

[xii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 9.

[xiii] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 2.

[xiv] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010), 2.

Courtney McGinn is an LLM student at Texas Law, concentrating in Human Rights and Comparative Constitutional Law, and member of the 2016-2017 Working Paper Series Editorial Committee.

#JungleRepublic: Where a Facebook Status Can Cost You Your Freedom

by Reina Wehbi

12 APR 2017

An enraged young Lebanese activist, Ahmad Amhaz, was detained in March over this Facebook status: “Three kinds of animals currently rule our country: a donkey, a crocodile and a third whose kind is yet to be discovered.” Referencing the Lebanese president, prime minister, and speaker of parliament, Ahmad used the popular social media network to express his dissatisfaction with what he perceives as the “incompetency” of the country’s leaders, using the hashtag #JungleRepublic. After being stopped at a check point by intelligence officers for an alleged traffic violation, Ahmad was driven to a police station where he was later told he was arrested for online libel. Ahmad was then transferred to the Bureau of Cybercrime and Intellectual Property Rights for investigation. One week later, the investigative judge confirmed charges of libel and defamation against Ahmad who was kept in detention. Meanwhile, popular outrage from Lebanese civil society and human rights organizations—including Human Rights Watch and the Lebanese Center for Human Rights—grew stronger, propelling the release of a statement condemning the “arrest, detention and prosecution of Ahmad,” which constituted a violation of Lebanon’s human rights obligations under International Law. The fury of human rights defenders led the president and the prime minister to relinquish their personal rights regarding the case and the activist was released on bail after 9 days of detention. However, Ahmad is still on trial and could face up to two years in jail for violating Article 852 of the Lebanese Penal Code, which prohibits defaming the office of the President and national emblems.

The wave of arrests targeting journalists and activists in Lebanon over online statements— especially those made on Twitter and Facebook—during the last few years has escalated at an alarming rate. The Penal Code that the Cybercrime Bureau relies on to prosecute those who commit online libel, slander, and defamation dates back to the Ottoman Era, and thus does not comprehensively cover online crimes, modern norms of free expression and punishable dissemination of information. In the absence of clear law regulating cyberspace, the credibility of the Cybercrime Bureau, which was established by the Internal Security Forces in 2006 following the rise of cybercrimes, continues to be tested. Moreover, the broad and vague language of Lebanese criminal laws allows for discretion in applying the law. The Bureau enforces these vague laws against those with no political power as a way of intimidating the public. The legality and proportionality of pre-trial detention prior to conviction also remains in question and puts at stake the right to due process.

Article 13 of the Lebanese Constitution guarantees freedom of expression “within the limits established by the law.” Although the article seems to protect this basic freedom, it grants public officials immunity against criticism and results in “self-censorship” of journalists, activists and civilians who often use social media to voice their concerns and respond to officials’ activity. Although it is hard to draw a line between protected speech and extreme speech, Lebanon remains in a dire need of updated laws that are compatible with modern modes of communication. In the opinion of the young activist Ahmad, “officials should not be immune to criticism or defamation when they are not diligently serving the public.”

Reina Wehbi is an LLM student at Texas Law, concentrating in Human Rights and Comparative Constitutional Law, and member of the 2016-2017 Working Paper Series Editorial Committee.