Nothing is Inevitable! Main Takeaways from an Event on “Techno-Racism and Human Rights: A Conversation with the UN Special Rapporteur on Racism”

TECHNOLOGY & HUMAN RIGHTS

Nothing is Inevitable! Main Takeaways from an Event on Techno-Racism and Human Rights

A Conversation with the UN Special Rapporteur on Racism

On July 23, 2020, the Digital Welfare State and Human Rights Project hosted a virtual event on techno-racism and human rights. The immediate reason for organizing this conversation was a recent report to the Human Rights Council by the United Nations Special Rapporteur on Racism, Tendayi Achiume, on the racist impacts of emerging technologies. The event sought to further explore these impacts and to question the role of international human rights norms and accountability mechanisms in efforts to address these. Christiaan van Veen moderated the conversation between the Special Rapporteur, Mutale Nkonde, CEO of AI for the People, and Nanjala Nyabola, author of Digital Democracy, Analogue Politics.

This event and Tendayi’s report come at a moment of multiple international crises, including a global wave of protests and activism against police brutality and systemic racism after the killing of George Floyd, and a pandemic which, among many other tragic impacts, has laid bare how deeply embedded inequality, racism, xenophobia, and intolerance are within our societies. Just last month, as Tendayi explained during the event, the Human Rights Council held a historic urgent debate on systemic racism and police brutality in the United States and elsewhere, which would have been inconceivable just a few months ago.

The starting point for the conversation was an attempt to define techno-racism and provide varied examples from across the globe. This global dimension was especially important as so many discussions on techno-racism remain US-centric. Speakers were also asked to discuss not only private use of technology or government use within the criminal justice area, but to address often-overlooked technological innovation within welfare states, from social security to health care and education.

Nanjala started the conversation by defining techno-racism as the use of technology to lock in power disparities that are predicated on race. Such techno-racism can occur within states: Mutale discussed algorithmic hiring decisions and facial recognition technologies used in housing in the United States, while Tendayi mentioned racist digital employment systems in South America. But techno-racism also has a transnational dimension: technologies entrench power disparities between States that are building technologies and States that are buying them; Nanjala called this “digital colonialism.”

The speakers all agreed that emerging technologies are consistently presented as agnostic and neutral, despite being loaded with the assumptions of their builders (disproportionately white males educated at elite universities) about how society works. For example, the technologies increasingly used in welfare states are designed with the idea that people living in poverty are constantly attempting to defraud the government; Christiaan and Nanjala discussed an algorithmic benefit fraud detection tool used in the Netherlands, which was found by a Dutch court to be exclusively targeting neighborhoods with low-income and minority residents, as an excellent example of this.

Nanjala also mentioned the ‘Huduma Namba’ digital ID system in Kenya as a powerful example of the politics and complexity underneath technology. She explained the racist history of ID systems in Kenya – designed by colonial authorities to enable the criminalization of black people and the protection of white property – and argued that digitalizing a system that was intended to discriminate “will only make the discrimination more efficient”. This exacerbation of discrimination is also visible within India’s ‘Aadhaar’ digital ID system, through which existing exclusions have been formalized, entrenched, and anesthetized, enabling those in power to claim that exclusion, such as the removal of hundreds of thousands of people from food distribution lists, simply results from the operation of the system rather than from political choices.

Tendayi explained that she wrote her report in part to address her “deep frustration” with the fact that race and non-discrimination analyses are often absent from debates on technology and human rights at the UN. Though she named a report by the Center Faculty Director Philip Alston, prepared in cooperation with the Digital Welfare State and Human Rights Project, as one of few exceptions, discussions within the international human rights field remain focused upon privacy and freedom of expression and marginalize questions of equality. But techno-racism should not be an afterthought in these discussions, especially as emerging technologies often exacerbate pre-existing racism and enable a completely different scale of discrimination.

Given the centrality of Tendayi’s Human Rights Council report to the conversation, Christiaan asked the speakers whether and how international human rights frameworks and norms can help us evaluate the implications of techno-racism, and what potential advantages global human rights accountability mechanisms can bring relative to domestic legal remedies. Mutale expressed that we need to ask, “who is human in human rights?” She noted that the racist design of these technologies arises from the notion that Black people are not human. Tendayi argued that there is, therefore, also a pressing need to change existing ways of thinking about who violates human rights. During the aforementioned urgent debate in the Human Rights Council, for example, European States and Australia had worked to water down a powerful draft resolution and blocked the establishment of a Commission of Inquiry to investigate systemic racism specifically in the United States, on the grounds that it is a liberal democracy. Mutale described this as another indication that police brutality against Black people in a Western country like the United States is too easily dismissed as not of international concern.

Tendayi concurred and expressed her misgivings about the UN’s human rights system. She explained that the human rights framework is deeply implicated in transnational racially discriminatory projects of the past, including colonialism and slavery, and noted that powerful institutions (including governments, the UN, and international human rights bodies) are often “ground zero” for systemic racism. Mutale echoed this and urged the audience to consider how international human rights organs like the Human Rights Council may constitute a political body for sustaining white supremacy as a power system across borders.

Nanjala also expressed concerns with the human rights regime and its history, but identified three potential benefits of the human rights framework in addressing techno-racism. First, the human rights regime provides another pathway outside domestic law for demanding accountability and seeking redress. Second, it translates local rights violations into international discourse, thus creating potential for a global accountability movement and giving victims around the world a powerful and shared rights-based language. Third, because of its relative stability since the 1940s, human rights legal discourse helps advocates develop genealogies of rights violations, document repeated institutional failures, and establish patterns of rights violations over time, allowing advocates to amplify domestic and international pressure for accountability. Tendayi added that she is “invested in a future that is fundamentally different from the present,” and that human rights can potentially contribute to transforming political institutions and undoing structures of injustice around the world.

In addressing an audience question about technological responses to COVID-19, Mutale described how an algorithm designed to assign scarce medical equipment such as ventilators systematically discounted black patient viability. Noting that health outcomes around the world are consistently correlated with poverty and life experiences (including the “weathering effects” suffered by racial and ethnic minorities), she warned that, by feeding algorithms data from past hospitalizations and health outcomes, “we are training these AI systems to deem that black lives are not viable.” Tendayi echoed this, suggesting that our “baseline assumption” should be that new technologies will have discriminatory impacts simply because of how they are made and the assumptions that inform their design.
In response to an audience member’s concern that governments and private actors will adopt racist technologies regardless, Nanjala countered that “nothing is inevitable” and “everything is a function of human action and agency.” San Francisco’s decision to ban the use of facial recognition software by municipal authorities, for example, demonstrates that the use of these technologies is not inevitable, even in Silicon Valley. Tendayi, in her final remarks, noted that “worlds are being made and remade all of the time” and that it is vital to listen to voices, such as those of Mutale, Nanjala, and the Center’s Digital Welfare State Project, which are “helping us to think differently.” “Mainstreaming” the idea of techno-racism can help erode the presumption of “tech neutrality” that has made political change related to technology so difficult to achieve in the past. Tendayi concluded that this is why it is so vital to have conversations like these.

We couldn’t agree more!

To reflect that this was an informal conversation, first names are used in this story.

July 29, 2020. Victoria Adelmant, and Adam Ray.

Adam Ray, JD program, NYU School of Law; Human Rights Scholar with the Digital Welfare State & Human Rights Project in 2020. He holds a Masters degree from Yale University and previously worked as the CFO of Songkick.

Victoria Adelmant, Director of the Digital Welfare State & Human Rights Project at the Center for Human Rights and Global Justice at NYU School of Law.

July 29, 2020 Dev Account Uncategorized

Global Justice Clinic and Human Rights Organizations Call on Government of Haiti to Cancel a Planned Raid

HUMAN RIGHTS MOVEMENT

Global Justice Clinic and Human Rights Organizations Call on Government of Haiti to Cancel a Planned Raid

The Global Justice Clinic, twenty-three other human rights organizations, and a number of individuals signed on to a letter calling for the government of Haiti to cancel a planned gang raid that it announced on Friday April 24, 2020.

Download Letter

In a statement to the press, Haiti’s Minister of Justice and Public Security said that residents of the impoverished community of Village de Dieu in Port-au-Prince had 72 hours to evacuate their homes and their neighborhood. The government would conduct a gang raid, and beyond the 72 hour window, indicated that they absolved themselves of responsibility for what happens in the area. There is extreme and understandable concern within Haiti that the gang raid may turn into indiscriminate violence. As the letter explains, in the past two years, the government has been implicated in massacres against civilians. Further, there is evidence that a former police officer who allegedly perpetrated past massacres has been coordinating with the Haitian National Police to enact Monday’s raid. The signatory organizations and individuals call on the government of Haiti to cancel the raid and to protect the human rights and physical safety of all Haitian people.

As of Wednesday, April 29, 2020, the raid has not occurred. However, human rights organization in Haiti and beyond continue to pressure the Haitian government to publicly declare that they will cancel the raid, and that they will address insecurity in a way that respects the human rights of Haitian people, particularly the most vulnerable.

April 1, 2020 Dev Account Uncategorized

Profiling the Poor in the Dutch Welfare State

TECHNOLOGY AND HUMAN RIGHTS

Profiling the Poor in the Dutch Welfare State

Report on court hearing in litigation in the Netherlands about digital welfare fraud detection system (‘SyRI’)

On Tuesday, October 29, 2019, I attended a hearing before the District Court of The Hague (the Netherlands) in litigation by a coalition of Dutch civil society organizations challenging the Dutch government’s System Risk Indication (“SyRI”). The Digital Welfare State and Human Rights Project at NYU Law, which I direct, recently collaborated with the United Nations Special Rapporteur on extreme poverty and human rights in preparing an amicus brief to the District Court. The Special Rapporteur became involved in this case because SyRI has exclusively been used to detect welfare fraud and other irregularities in poor neighborhoods in four Dutch cities and affects the right to social security and to privacy of the poorest members of Dutch society. This litigation may also set a highly relevant legal precedent with impact beyond Dutch borders in an area that has received relatively little judicial scrutiny to date.

SR Report

Amicus Brief

Lies, damn lies, and algorithms

What is SyRI? The formal answer can be found in legislation and implementing regulations from 2014. In order to coordinate government action against illicit use of government funds and benefits in the area of social security, tax benefits and labor law, Dutch law allows for the sharing of data between municipalities, welfare authorities, tax authorities and other relevant government authorities since 2014. A total of 17 categories of data held by government authorities may be shared in this context, from employment and tax data, to benefit data, health insurance data and enforcement data, among other categories of digitally stored information. Government authorities wishing to cooperate in a concrete SyRI project request the Minister for Social Affairs and Employment to use the SyRI tool by pooling and analyzing the relevant data from various authorities using an algorithmic risk model.

The Minister has outsourced the tasks of pooling and analyzing the data to a private foundation, somewhat unfortunately named ‘The Intelligence Agency (‘Inlichtingenbureau’). The Intelligence Agency pseudonymizes the data pool, analyzes the data using an algorithmic risk model and creates a file for those individuals (or corporations) who are deemed to be at a higher risk of being involved in benefit fraud and other irregularities. The Minister then analyzes these files and notifies the cooperating government authorities of those individuals (or corporations) are considered at higher risk of committing benefit fraud or other irregularities (‘risk notification’). Risk notifications are included in a register for two years. Those who are included in the register are not actively notified of this registration, but they can receive access to their information in the register after a specific request.

The preceding understanding of how the system works can be derived from the legislative texts and history, but a surprising amount of uncertainty remains about how exactly SyRI works in practice. This became abundantly clear in the hearing in the SyRI-case before the District Court of The Hague on October 29. The court is assessing the plaintiffs’ claim that SyRI, as legislated in 2014, violates norms of applicable international law, including the rights to privacy, data protection and a fair trial recognized in the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, the International Covenant on Civil and Political Rights and the EU General Data Protection Regulation. In a courtroom packed with representatives from the 8 plaintiffs, reporters and concerned citizens from areas where SyRI has been used, the first question by the three-judge panel was to clarify the radically different views held by the plaintiffs and the Dutch State as to what SyRI is exactly.

According to the State, SyRI merely compares data from different government databases, operated by different authorities, in order to find simple inconsistencies. Although this analysis is undertaken with the assistance of an algorithm, the State underlined that this algorithm operates on the basis of pre-defined indicators of risk and that the algorithm is not of the ‘learning’ type. The State further emphasized that SyRI is not a Big Data or data-mining system, but that it employs a targeted analysis on the basis of a limited dataset with a clearly defined objective. It also argued that a risk notification by SyRI is merely a – potential – starting point for further investigations by individual government authorities and does not have any direct and automatic legal consequences such as the imposition of a fine or the suspension or withdrawal of government benefits or assistance.

But plaintiffs strongly contested the State’s characterization of SyRI. They claimed instead that SyRI is not narrowly targeted but instead aims at entire (poor) neighborhoods, that diverse and unconnected categories of personal data are brought together in SyRI projects, and that the resulting data exchange and analysis occur on a large scale. In their view, SyRI projects could therefore be qualified as projects involving problematic uses of Big Data, data-mining and profiling. They also made clear that it is exceedingly difficult for them or the District Court to assess what SyRI actually is or is not doing, because key elements of the system remain secret and the relevant legislation does not restrict the methods used, including the request to cooperating authorities to undertake a SyRI project, the risk model used, and the ways in which personal data can be processed. All of these elements remain hidden from outside scrutiny.

Game the system, leave your water tap running

The District Court asked a series of probing and critical follow-up questions in an attempt to clarify the exact functioning of SyRI and to understand the justification for the secrecy surrounding it. One can sympathize with the court’s attempt to grasp the basic facts about SyRI in order to enable it to undertake its task of judicial oversight. Pushed by the District Court to clarify why the State could not be more open about the functioning of SyRI, the attorney for the State warned about welfare beneficiaries ‘gaming the system’. Referring to a pilot project pre-dating SyRI, in which welfare authority data about individuals claiming low-income benefits was matched with usage data held by publicly-owned drinking water companies to identify beneficiaries who committed fraud by falsely claiming they were living alone while actually living together (to claim a higher benefit level), the attorney for the State claimed that making it known that water usage is a ‘risk indicator’ could lead beneficiaries to leave their taps running to avoid detection. Some individuals attending the hearing could be heard snickering when this prediction was made.

Another fascinating exchange between the judges and the attorney for the State dealt with the standards applied by the Minister when assessing a request for a SyRI project by municipal and other government authorities. According to the State’s attorney, what would commonly happen is that a municipality has a ‘problem neighborhood’ and wants to tackle its problems, which are presumed to include welfare fraud and other irregularities, through SyRI. The request to the Minister is typically based ‘on the law, experience and logical thinking’ according to the State. Unsatisfied with this reply, the District Court probed the State for a more concrete justification of the use of SyRI and the precise standards applied to justify its use: ‘In Bloemendaal (one of the richest municipalities of the Netherlands) a lot of people enjoy going to classical concerts; in a problem neighborhood, there are a lot of people who receive government welfare benefits; why is that a justification for the use of SyRI?’, the Court asked. The attorney for the State had to admit that specific neighborhoods were targeted because those areas housed more people who were on welfare benefits and that, while participating authorities usually have no specific evidence that there are high(er) levels of benefit fraud in those neighborhoods, this higher proportion of people on benefits is enough reason to use SyRI.

Finally, and of great relevance to the intensity of the Court’s judicial scrutiny, the question of the gravity of the invasion of human rights – more specifically, the right to privacy – was a central topic of the hearing. The State argued that the data being shared and analyzed was existing data and not new data. It furthermore argued that for those individuals whose data was shared and analyzed, but who were not considered a ‘higher risk’, there was no harm at all: their data had been pseudonymized and was removed after the analysis. The opposing view by plaintiffs was that the government-held data that was shared and analyzed in SyRI was not originally collected for the specific purpose of enforcement. Plaintiffs also argued that – due to the wide categories of data that were potentially shared and analyzed in SyRI – a very intimate profile could be made of individuals in targeted neighborhoods: ‘This is all about profiling and creating files on people’.

Judgment expected in early 2020

The District Court announced that it expects to publish its judgment in this case on 29 January 2020. There are many questions to be answered by the Court. In non-legal language, they include at least the following: How does SyRI work exactly? Does it matter whether SyRI uses a relatively straightforward ‘decision-tree’ type of algorithm or, instead, machine learning algorithms? What is the harm in pooling previously siloed government data? What is the harm in classifying an individual as ‘high risk’? Does SyRI discriminate on the basis of socio-economic status, migrant status, race or color? Does the current legislation underpinning SyRI give sufficient clarity and adequate legal standards to meaningfully curb the use of State power to the detriment of individual rights? Can current levels of secrecy be maintained in a democracy based on the rule of law?

In light of the above, there will be many eyes focused on the Netherlands in January when a potentially groundbreaking legal precedent will be set in the debate on digital welfare states and human rights.

November 1, 2019. Christiaan van Veen, Digital Welfare State & Human Rights Project (2019-2022), Center for Human Rights and Global Justice at NYU School of Law.

November 1, 2019 Dev Account Uncategorized

Human Rights in the Digital Age: Can they Make a Difference?

TECHNOLOGY AND HUMAN RIGHTS

Human Rights in the Digital Age: Can they Make a Difference?

This event brought together international policymakers, human rights practitioners, leading academics and representatives from technology companies to discuss the relevance of the international human rights law framework in a world increasingly dominated by digital technologies.

In only a few decades, we have witnessed tremendous change through digital innovation, from personal computers, a globe-spanning Internet, and ubiquitous smartphones, to rapid advances in Artificial Intelligence. As we express ever more of ourselves digitally, the economy is built around the data generated, which is then used to predict and nudge our future behavior. Surveillance capitalism (Zuboff, 2019) is being matched by the digitization of government, whether in national security, policing, immigration or court systems. And postwar welfare states are rapidly becoming digital welfare states (Alston & Van Veen, 2019).

The speed, magnitude and complexity of these developments have left little or no time for reflection let alone resistance on the part of most of those affected. Only now is the world waking up to the value-choices implicit in embracing many of these technological changes. And many of the initiatives designed to curb the excesses of the digital age are entirely voluntary, based in malleable conceptions of ethics, and themselves reliant upon technological solutions promoted by the very Big Tech firms these initiatives are supposed to regulate.

This event focused on the role of law, democratic institutions and human rights in the digital age. Can the societal impacts of digital technologies be meaningfully addressed in the language of rights? What difference does it make to insist on applying the lens of human rights law? What difference can international and domestic human rights accountability mechanisms make in the technology debate? Whose voices and issues are neglected in this debate and how can human rights law empower those on the margins of society?

The keynote speaker was Michelle Bachelet, United Nations High Commissioner for Human Rights; and the panel moderated by Ed Pilkington, Chief Reporter, Guardian US, featured:

Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights and John Norton Pomeroy Professor of Law, New York University School of Law
Michelle Bachelet, United Nations High Commissioner for Human Rights
Chris Hughes, Co-founder of Facebook and Co-Chair of the Economic Security Project and Senior Advisor, Roosevelt Institute
Kumi Naidoo, Secretary General, Amnesty International
Shoshana Zuboff, Charles Edward Wilson Professor Emerita, Harvard Business School and author of The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (2019)

October 17, 2019. This event was co-hosted by the UN Special Rapporteur on extreme poverty and human rights, the Center for Human Rights and Global Justice at New York University School of Law and Amnesty International with the Guardian as a media partner.

October 17, 2019 Dev Account Event Summary

GJC’s Ellie Happel Expert Witness in Case Blocking Trump Administration from Terminating TPS For Haiti

HUMAN RIGHTS MOVEMENT

GJC’s Ellie Happel Expert Witness in Case Blocking Trump Administration from Terminating TPS For Haiti

On Thursday, April 11, 2019 Judge Kuntz of the Eastern District of New York issued a nationwide Preliminary Injunction that blocks the Trump Administration from terminating TPS for Haiti. Global Justice Clinic Haiti Project Director Ellie Happel was the first witness called by the plaintiffs in the case. Ellie’s expert testimony was based both on her experience living in Haiti during the time under consideration (2010–2017), and on the facts presented in the Global Justice Clinic report, Extraordinary Conditions: A Statutory Analysis of Haiti’s Qualification for TPS.

The Trump Administration ended TPS for Haiti in November, 2017. Judge Kuntz ruled that the decision by the Department of Homeland Security (DHS) to terminate TPS for Haiti was improperly influenced by the White House. The decision was “reverse engineered” to “get to no,” ruled Judge Kuntz, finding that the Plaintiffs were likely to succeed on claims they brought under both the Administrative Procedure Act (APA) and the Equal Protection Clause of the U.S. Constitution. The judge found that there was significant evidence that the decision to terminate was a “preordained outcome,” including evidence that suggesting that, in fewer than 30 minutes, a DHS employee reworked a memo that favored extending TPS for Haiti to one that supported termination. The Court found that the plaintiffs’ Equal Protection claim raises “serious concerns.” “Based on the facts on this record, and under the [relevant legal framework], there is both direct and circumstantial evidence [that] a discriminatory purpose of removing non-white immigrants from the United States was a motivating factor behind the decision to terminate TPS for Haiti.” Judge Kuntz concluded that “absent injunctive relief, Plaintiffs, as well as 50,000 to 60,000 Haitian TPS beneficiaries and their 30,000 U.S. Citizen children stand to suffer serious harm.”

Download Decision

In addition to Ellie’s role as an expert witness in this case, the Global Justice Clinic was involved in a FOIA lawsuit that divulged relevant records from the Department of Homeland Security (DHS) and the State Department. These records were integral to this case and others challenging the Trump Administration’s termination of TPS for Haiti. Professor Margaret Satterthwaite served as a plaintiff in the FOIA lawsuit.

Download Complaint

April 16, 2019.

April 16, 2019 Dev Account Product

Guyanese Indigenous Council Rejects Canadian Mining Company’s Flimsy Environmental and Social Impact Assessment, Calls for Rejection of Mining Permit

CLIMATE & ENVIRONMENT

Guyanese Indigenous Council Rejects Canadian Mining Company’s Flimsy Environmental and Social Impact Assessment, Calls for Rejection of Mining Permit

The Global Justice Clinic has been working with the South Rupununi District Council (SRDC) since 2016. Through the clinic, students have provided data analysis and legal support for monitoring activity undertaken by the SRDC.

Last week, the South Rupununi District Council (SRDC), a legal representative institution for the Wapichan people, released a statement forcefully denouncing the procedurally and substantively defective environmental and social impact assessment (ESIA) submitted by a Canadian mining company (Guyana Goldstrike) seeking to begin large-scale mining operations on Marutu Taawa through its Guyanese subsidiary (Romanex). Marutu Taawa, also known as Marudi Mountain, stands deep in the traditional territory of the Wapichan and holds historical, cultural, spiritual and biological significance for the entire region. Because Marutu Taawa sits at a critical watershed, the environmental impact of large-scale mining operations would threaten the ability of the Wapichan people to continue living in the ancestral lands they have called home for centuries. Notwithstanding the threat to the Wapichan people posed by large-scale mining, SRDC finds that Guyana Goldstrike’s ESIA relies on incomplete, inaccurate, or decades-old information to ignore the substantial environmental, public health, and cultural consequences that would occur if such mining operations were allowed to proceed. The SRDC also strongly condemns the mining company’s failure to consult the Council, as a legal representative institution of the Wapichan people. This failure to meaningfully consult stands in direct violation of both Guyanese and international law.

Given the inadequacy of the ESIA and Guyana Goldstrike’s flouting of domestic and international law, the SRDC has strongly encouraged the Guyanese Environmental Protection Agency (EPA) to deny the Canadian company’s subsidiary the environmental permit needed to initiate large-scale operations in the territory. The SRDC also calls on the EPA to oversee a process that ensures that Guyana Goldstrike and Romanex adhere to Guyanese and international law and best practices in the international mining sector.

This post was originally published as a press release on September 28, 20218.

September 28, 2018 Dev Account Uncategorized

NYU Clinics File Lawsuit Seeking Disclosure of Trump Policy Behind Termination of TPS for Haitians

HUMAN RIGHTS MOVEMENT

NYU Clinics File Lawsuit Seeking Disclosure of Trump Policy Behind Termination of TPS for Haitians

On Thursday January 25, 2018, the National Immigration Project of the National Lawyers’ Guild and Margaret Satterthwaite, NYU School of Law professor and director of the Global Justice Clinic (GJC), filed a Freedom of Information lawsuit against the U.S. Department of Homeland Security, U.S. Department of State, and U.S. Immigration and Customs Enforcement to obtain records documenting the reasons behind the U.S. government’s decision to terminate Temporary Protected Status (TPS) for Haitians. NYU School of Law’s Immigrant Rights Clinic provided legal counsel.

Download Lawsuit

On November 20, 2017, the Trump Administration terminated TPS for Haiti, stating that the conditions caused by the earthquake no longer exist. Many reports, including Extraordinary Conditions: A Statutory Analysis of Haiti’s Qualification for TPS, published by the GJC in October, show that families in Haiti continue to face displacement, homelessness, one of the worst cholera epidemics in the world, hunger, and other challenges that make Haiti unsafe for return. The termination will affect the estimated 58,000 Haitian TPS holders and their families. TPS is set to terminate in July of 2019.

President Trump’s recent racist statements towards certain foreign nations, including Haiti, make the public’s right to access information that influenced the decision to terminate TPS that much more urgent.

January 25, 2018.

Communications from NYU clinics do not represent the institutional views of NYU School of Law or the Center, if any.

January 25, 2018 Dev Account Uncategorized

Global Justice Clinic Calls for Transparency in the Development of Haiti’s Mining Sector

CLIMATE AND ENVIRONMENT

Global Justice Clinic Calls for Transparency in the Development of Haiti’s Mining Sector

On July 24th, the Haitian media reported that Senator Hervé Fourcand submitted a draft mining law to Parliament for its consideration. This law has not been made available to the public despite repeated requests made by GJC collaborator, the Kolektif Jistis Min (KJM), a collective of Haitian social movement organizations that support communities affected by metal mining. The passage of the mining law would unlock the sector. The law that currently governs mining in Haiti is seen as outdated, and considered the key obstacle to future metal mining.

In late August, GJC Haiti Project Director Ellie Happel and Oxfam America staff met with members of Congress and the State Department in Washington, D.C. The objective of the meetings in D.C. was to request that U.S. actors encourage the Haitian government to disclose the draft law and to hold a meaningful public debate about its content. Such a debate is crucial at this time, since Haiti does not yet have a modern mining industry, and the human rights and environmental risks attendant to the nascent sector are significant. At the beginning of December, Representative Jan Schakowsky of Illinois submitted a letter to the President of Haiti’s Parliament, suggesting that he makes the draft law public and stating concerns about the human rights and environmental risks that mining poses. Four other members of Congress signed the letter.

The lack of access to information about Haiti’s mining sector is a longstanding problem. In 2013, the Haitian Senate passed a resolution calling for a moratorium on mining, citing the “opacity” of information about the country’s mineral resources. In 2015 GJC and KJM testified at a hearing before the Inter-American Commission on Human Rights on the situation of the right to access to information in Haiti. The Commission found the testimony about the “existing obstacles to the exercise of the right of access to public information”—specifically in the context of mining—“troubling.”

GJC provides an extensive analysis of the draft mining law in its report co-authored with Hastings College of Law, Byen Konte, Mal Kalkile? Human Rights and Environmental Risks of Gold Mining in Haiti. GJC found that this version of the draft law fails to adequately protect Haiti’s environment, violates the Haitian Constitution of 1987, and does not respect the rights of Haitian communities. GJC created a brief analysis of the law to use in advocacy efforts. GJC translated it into Kreyòl, and KJM similarly uses it in advocacy efforts in Haiti, including to inform radio interviews.

Download Brief Analysis

August 29, 2017.

August 29, 2017 Dev Account Uncategorized

Byen Konte, Mal Kalkile? Human Rights and Environmental Risks of Gold Mining in Haiti

CLIMATE AND ENVIRONMENT

Byen Konte, Mal Kalkile? Human Rights and Environmental Risks of Gold Mining in Haiti

Until now, most discussions about mining have occurred behind closed doors among government officials, company stakeholders, and international financial institutions. There is a dearth of information in the public domain about what gold mining entails, what challenges it poses, what opportunities it presents, and what it may mean for communities and the country as a whole. The purpose of this report is to help fill that gap.

Download Report

Haiti stands at a crossroads: The prospect of gold mining glitters on the horizon, while the reality of an uncertain political future, weak institutions, and widespread impoverishment glares in the foreground. Celebrated as the only nation in the world born of a successful slave revolution, but known today as the poorest country in the Western Hemisphere, Haiti is a fragile, if resilient, place. Rights are precarious, and basic resources are scarce. As of 2014, only 62 percent of all households in Haiti had access to safe drinking water, while less than 50 percent enjoyed such access in rural areas. The cholera epidemic that erupted in 2010, which has taken more than 9,000 lives to date, has revealed the vulnerability of the Haitian population amid inadequate water, sanitation, and health infrastructure. But it has also highlighted the power of popular protest. Haiti has a longstanding tradition of peasant movements, in which ordinary Haitians have mobilized to challenge and overcome injustice. It is in this context—against the backdrop of the country’s complex history with foreign intervention and investment—that efforts to develop a mining industry in Haiti must be understood.

Minerals can be exploited only once. The current moment, before mining has begun, presents a unique opportunity for the Haitian people to engage in a robust public debate about the risks and benefits of mining and for the Haitian State to implement preventive measures to avoid future human rights abuses and environmental harms. Such a debate requires transparency, public education, and active engagement of Haitian communities.

Report Objectives and Approach

Recognizing the important decisions that Haiti faces, the Global Justice Clinic at New York University School of Law (GJC) and the University of California Hastings College of the Law have prepared this Report concerning the risks and realities of modern gold mining and its implications for human rights and the environment in Haiti. The Report is the fruit of collaboration between environmental law experts and human rights lawyers, informed by the Justice in Mining Collective, a platform of Haitian organizations and individuals committed to promoting the interests of Haiti’s rural, northern communities and prompting a national dialogue about the future of Haiti’s mineral resources. Consistent with best practice in the field of international human rights, this Report is based on intensive documentary research and review of primary and secondary materials on gold mining in Haiti; interviews with community members, Haitian government officials, and representatives of mining companies and international organizations operating in Haiti; field investigation; and discussions with members of communities in areas where companies hold permits for activities related to gold mining. The Report is a product of more than 100 days of interviews and participant observation in more than fifty meetings held in communities affected by mining-related activities in Haiti (see infra).

All Report-related research in Haiti was undertaken using a human rights-based approach, which supports the power and capacity of people and communities to change their own lives, both independently and through institutions that represent or affect them. This approach takes respect for human rights as its starting point and end objective, emphasizes the informed engagement of rights-holders in both the analysis of factors affecting their own lives and the design of solutions, and stresses accountability, by including evaluation of both the process and outcomes of the research.

The Report addresses four main issues:

the process of modern gold mining, through an examination of its mechanics around the world and a history of extractive activity in Haiti;
the experiences and concerns of communities in Haiti that have hosted mineral exploration in the past ten years, including community members’ allegations that mining companies have failed to respect human rights and the communities’ fear of future human rights violations;
the environmental and social risks of mining gold in Haiti;
the institutional, legal, and regulatory frameworks that will shape the economic, social, and environmental consequences of mining in Haiti.

September 1, 2016 Dev Account Uncategorized

World Bank Refuses to Consider Haitian Communities’ Complaint about New Mining Law

CLIMATE AND ENVIRONMENT

World Bank Refuses to Consider Haitian Communities’ Complaint about New Mining Law

Complaint Office Recognizes “Legitimate” Concerns, Rejects Complaint on Technical Grounds

Last week, the World Bank Inspection Panel refused to consider a complaint from Haitian communities about the Bank’s support for development of the mining sector in Haiti. Communities affected by mining activity and the Justice in Mining Collective, a group of six Haitian civil society organizations, submitted the complaint in early January, alleging violations of their rights to information and participation and threats of human rights abuses and environmental harms. The Inspection Panel—an office established to address complaints from people affected by World Bank-sponsored projects—recognized that the complaint raised “serious and legitimate” concerns and that the mining industry presents significant risks. The office nevertheless denied the complaint on narrow, technical grounds. The complainants expect to receive a copy of the decision in French today.[1]

Communities’ concerns about the development of the mining industry stem in part from their experiences with mineral exploration to date. Farmers report that they have lost crops and watched fertile land turn barren; they allege that companies have entered and operated in their communities without seeking permission; and they contend that they have nowhere to bring their concerns. Now, the World Bank’s complaint office has declared that it will not investigate their grievances. “For the Panel to recognize that our concerns are legitimate and yet refuse to register the case, it is as if the lives of Haitian people do not matter to the World Bank,” said Peterson Derolus, Co-Coordinator of the Justice in Mining Collective.

The farmers and families in rural communities where mining companies have explored for gold have been systematically excluded from conversations about the mining industry. In 2014, the World Bank crafted a new mining law in close consultation with mining company executives and Haitian government authorities. The reforms largely have taken place behind closed doors. “To date, even Parliament has been excluded from the process of drafting the new law,” Derolus said. “But the Haitian Constitution states that mineral resources belong to the State, meaning not only the government, but also the Haitian people.”

The World Bank’s own policies normally require it to ensure transparency and meaningful public consultation and to adhere to environmental and social standards in all its operations. The Inspection Panel found that those safeguards do not apply to the “Bank-Executed Trust Fund” used to finance the revision of Haiti’s mining law, even though they do apply to similar Bank projects funded in different ways. Noting this inconsistency, the Panel called for reforms to ensure that the Bank applies its safeguards to technical assistance projects like this one based on the risk of environmental and social harm, rather than the particular financing mechanism used.

“The World Bank is providing assistance that will change the entire legal regime for mineral mining in Haiti. It chose to do so in a way that exempts the project from the Bank’s own safeguard policies, including those that require community participation,” said Sarah Singh of Accountability Counsel, an organization representing affected Haitian communities. “The Bank should not have discretion to avoid community complaints regarding a project that poses such clear human rights and environmental risks.”

The risks are particularly acute today in Haiti—a country known for its devastated environment, poor infrastructure, and lack of rule of law—as the state is in the midst of a major political crisis. Since January, President Martelly has ruled by decree. Parliament, which had objected to the way the Executive was developing the mining industry, has been dissolved. The past few weeks have seen increasing protests and multiple days of nationwide transit strikes. “We call on the World Bank to recognize the grave risks it incurs in developing the mining industry in Haiti and to endorse a moratorium on mining until a meaningful national debate is held and other community demands have been met,” said Margaret Satterthwaite, Director of the Global Justice Clinic, which represents affected Haitian communities. “If the Bank-backed mining law is passed by decree, Haiti will be open to the gold mining business without the consent of its people.”

[1] The World Bank’s complaint office, the Inspection Panel, is an independent office that investigates allegations by people who claim to have experienced harm or who fear future harms as a result of World Bank projects. The Notice of Non-Registration is available in English. The Panel indicated that the Notice of Non-Registration would be made available in French on February 17, 2015. The complaint is also available in English and in French.

This post was originally published as a press release on February 17, 2015.

February 17, 2015 Dev Account Uncategorized