Makundi ya haki yaonya kuwa huduma ya afya ya kibinafsi inaathiri wengi, kufuja rasli mali za umma

INEQUALITIES

Makundi ya haki yaonya kuwa huduma ya afya ya kibinafsi inaathiri wengi, kufuja rasli mali za umma

Hatua ya serikali kuunga mkono upanuzi wa huduma ya afya ya kibinafsi nchini Kenya imesababisha kutengwa na kurudisha nyuma hatua za kutimiza malengo ya afya kwa wote, makundi mawili ya haki yamesema kwenye ripoti iliyotolewa leo. Sera za kitaifa zilizokusudiwa kuongeza ushiriki wa sekta ya kibinafsi katika utoaji wa huduma ya afya, pamoja na uwekezaji duni katika mfumo wa umma, zimechangia kuenea kwa wahudumu wa kibinafsi ambao mara nyingi hutoa huduma duni, hupuuza vipaumbele vya afya ya umma, na kuwasukuma wakenya wengi katika umasikini na malimbikizi ya madeni.

Ripoti

Ripoti hiyo ya kurasa 52, “Tiba Tatanishi: Athari ya ubinafsishaji wa Huduma ya Afya nchini Kenya,” imeandikwa na Hakijamii kwa pamoja na Kituo cha Haki za Kibinadamu na Haki za Kimataifa katika Chuo Kikuu cha New York (CHRGJ). Ripoti hiyo inabaini kwamba ubinafsishaji umewekea watu binafsi na serikali mzigo mkubwa wa gharama, umewazuia watu wengi kupata huduma ya afya, na unahujumu haki ya afya. Sera kuu ya serikali ya kutimiza mpango wa afya kwa wote—mpango wa kupanua bima ya jamii inayoegemea sekta ya kibinafsi kupitia Hazina ya Kitaifa ya Bima ya Afya (NHIF)—unatishia kuzidisha matatizo haya.

“Ubinafsishaji si suluhisho tosha kwa kutimiza mpango wa afya kwa wote,” alisema Philip Alston, aliyekuwa Mjumbe Maalum wa Umoja wa Mataifa na mwandishi mwenza wa ripoti hii. “Watetezi wa ubinafsishaji wa huduma ya afya hutoa ahadi za kila aina kuhusu jinsi hatua hiyo itapunguza gharama za matibabu na kuimarisha upatikanaji wa huduma ya afya, lakini utafiti wetu umepata kwamba wahudumu wa kibinafsi wameshindwa kabisa kutimiza ahadi zao.”

“Watetezi wa huduma ya afya ya kibinafsi wameshindwa kutoa ufafanuzi halisi wa hali ilivyo,” alisema Nicholas Orago, Mkurugenzi Mtendaji wa Hakijamii na mwandishi mwenza wa ripoti hii. “Huku wengi wakihusisha huduma ya kibinafsi na vituo vya kiwango cha juu, ‘mabwanyenye’ na ‘wachochole’ hukumbana na aina tofauti za sekta ya kibinafsi. Huduma ya afya ya kibinafsi imekuwa na madhara makubwa kwa watu maskini na jamii zilizoko hatarini, ambazo hulazimika kutumia wahudumu nafuu wa kiwango cha chini, ambao hutoa huduma ambazo mara nyingi ni hatari au hata kinyume cha sheria.”

Ubinafsishaji umedhibitishwa kuwa wa gharama kubwa kwa watu binafsi na serikali. Sekta ya afya ya kibinafsi hutegemea zaidi ufadhili wa serikali, ikiwemo matumizi ya mabilioni ya pesa kila mwaka kutoa kandarasi kwa vituo vya kibinafsi, ruzuku kwa huduma ya kibinafsi, na malipo kwa miradi ya kisiri ya ushirikiano wa sekta za umma na kibinafsi. Watu binafsi hukabiliwa na ada za juu zaidi katika vituo vya kibinafsi, ambako matibabu wakati mwingine yanagharimu mara kumi na mbili zaidi ya gharama katika sekta ya umma.

“Huduma ya afya ni biashara kubwa, huku mashirika ya kimataifa na kampuni za ufadhili wa kibinafsi zikilenga kujinufaisha kutoka sekta hiyo nchini Kenya,” alisema Rebecca Riddell, Mkurugenzi mwenza wa mradi wa Haki za kibinadamu na Ubinafsishaji katika kituo cha CHRGJ na mwandishi mwenza wa ripoti hii. “Kampuni hizi zinatarajia faida kutoka uwekezaji wao, hatua ambayo husababisha bei za juu zaidi katika sekta ya kibinafsi huku rasli mali haba za umma zikitumika kuimarisha faida za sekta ya kibinafsi.”

Ripoti hii imeandikwa kutokana na mahojiano yaliyofanyiwa watu zaidi ya mia moja themanini wakiwemo wagonjwa na watoaji wa huduma ya afya, maafisa wa serikali na wataalamu. Watafiti walizungumza na wanajamii kutoka mitaa ya mabanda katika miji ya Mombasa na Nairobi na vile vile maeneo ya mashambani katika kaunti ya Isiolo. Wengi walieleza jinsi walivyotengwa kutoka huduma ya kibinafsi au kukabiliwa na matatizo kugharamia matibabu, kama vile kulazimika kuuza mali muhimu kama shamba ama kukatiza masomo ya watoto na fursa nyingine za kutafuta riziki. Wengine walielezea matokeo ya kusikitisha ya huduma ya kiwango cha chini katika vituo vya kibinafsi, ikiwemo vifo ambavyo vingeepukika na ulemavu. Athari zake ni kubwa zaidi kwa watu maskini au wenye mapato ya chini, wanawake, walemavu, na wale wanaoishi sehemu za mashambani.

Watafiti pia walipata kwamba sekta ya kibinafsi nchini Kenya imejilimbikiza zaidi katika huduma zenye faida kubwa,na kupuuza maeneo yenye faida duni, wagonjwa, na huduma. Wafanyikazi wa huduma ya afya katika sekta ya kibinafsi walieleza jinsi walivyohitajika kutimiza “malengo” ya kuhudumia idadi fulani ya wagonjwa na vile vile kufanya kazi katika mazingira duni ikilinganishwa na sekta ya umma.

“Mkinzano kati ya faida na malengo ya afya ya umma unafaa kuwachochea watungaji sera kufikiria upya utegemeaji wa sekta ya kibinafsi,” alisema Bassam Khawaja, Mkurugenzi mwenza wa mradi wa Haki za kibinadamu na Ubinafsishaji na mwandishi mwenza wa ripoti hii. “Huduma nyingi muhimu za afya zina thamani kubwa au ni muhimu kwa kuokoa maisha licha ya kwamba hazina faida kubwa kibiashara.”

Mpango unaotarajiwa wa kusambaza kote nchini huduma ya bima ya afya ya lazima utachangia kuelekezwa kwa pesa zaidi za umma kwa wahudumu wa kibinafsi bila kusitisha kutengwa na gharama za juu. Ingawa NHIF inatoa bima ya umma, hazina hiyo hutoa kandarasi nyingi kwa vituo vya kibinafsi, hulipa wahudumu wa kibinafsi kwa viwango vya juu, na hulipa kiwango kikubwa cha madai kwa wahudumu wa kibinafsi. “Kupanua huduma kupitia NHIF badala ya kuwekeza katika mfumo dhabiti wa huduma ya afya ya umma ni hatua kubwa kurudi nyuma,” Orago alisema.

Msukumo mkubwa wa ubinafsishaji umetoka kwa washirika wa kigeni. Washirika wakuu wa maendeleo wamehimiza Serikali ya Kenya kuongeza jukumu la sekta ya kibinafsi katika utoaji wa huduma ya afya, ikiwemo mashirika ya kifedha ya kimataifa, wakfu za kibinafsi, na mataifa tajiri yanayotafuta masoko mapya kwa bidhaa zao.

“Dhamira ya kiitikadi kwa sekta ya kibinafsi imekiuka haki za wakenya, huku washirika wa maendeleo wakieneza na kufadhili huduma ya kibinafsi bila kuwajibika,” Alston alisema. “Usiri mkubwa juu ya makubaliano mengi na sekta ya afya ya kibinafsi unatoa mwanya kwa ufisadi na maslahi ya kibinafsi.”

Ripoti hii inabainisha kwamba serikali inapaswa kufikiria upya msaada wake kwa sekta ya kibinafsi na kutoa kipaumbele kwa mfumo wa huduma ya afya ya umma, ambao bado unatoa huduma nyingi kwa wagonjwa wanaoruhusiwa kwenda nyumba na wale wa kulazwa nchini Kenya licha ya uhaba wa fedha. “Ingawa serikali inafaa kushughulikia mapungufu makubwa katika mfumo wa afya wa umma, uwekezaji maarufu wa hivi karibuni unaonyesha hamu kubwa ya matumizi ya huduma ya afya ya umma,” alisema Alston.

“Kukiwepo na nia njema ya kisiasa na rasli mali, mfumo wa huduma ya afya wa umma una nafasi bora kutoa kwa wakenya wote huduma iliyo rahisi kupatikana, yenye gharama nafuu, na ya kiwango cha juu ambao wanastahili kupata,” alisema Orago.

This post was originally published as a press release on November 16, 2021.

November 16, 2021 Dev Account Uncategorized

A GPS Tracker on Every “Boda Boda”: A Tale of Mass Surveillance in Uganda

TECHNOLOGY & HUMAN RIGHTS

A GPS Tracker on Every “Boda Boda”: A Tale of Mass Surveillance in Uganda

The Ugandan government recently announced that GPS trackers would be placed on every vehicle in the country. This is just the latest example of the proliferation of technology-driven mass surveillance, spurred by a national security agenda and the desire to suppress political opposition.

Following the June 2021 assassination attempt on Uganda’s Transport Minister and former army commander, General Katumba Wamala, President Yoweri Museveni suggested mandatory Global Positioning System (GPS) tracking of all private and public vehicles. This includes motorcycle taxis (commonly known as boda bodas) and water vessels. Museveni also suggested collecting and storing the palm prints and DNA of every Ugandan.

Hardly a month later, reports emerged that the government, through the Ministry of Security, had entered into a 10-year secretive contract with a Russian security firm to undertake the installation of GPS trackers in vehicles. Selection of the firm was never subjected to the procurement procedures required by Ugandan law, and a few days after this news broke, it emerged that the Russian firm was facing bankruptcy litigation. The line minister who endorsed the contract subsequently distanced himself from the deal, saying that he was merely enforcing a presidential directive. The government has confirmed that Ugandans will have to pay 20,000 UGX (approximately $6 USD) annually to the Russian firm for the installation of trackers on their vehicles. This controversial move means Ugandans are paying for their own surveillance.
According to 2020 statistics by the Ugandan Bureau of Statistics, a total of 38,182 motor vehicles and 102,273 motor cycles are registered in Uganda. Most of these motorcycles function as boda bodas and are a de facto mode of public transport in Uganda commonly used by people of all social classes. In the capital of Kampala, boda bodas are essential because of their ability to navigate heavy traffic jams. In remote locations where public transport is inaccessible, boda bodas are the only means of transportation for most people, except the elites. While a boda boda motorcycle was allegedly used in the assassination attempt on General Katumba Wamala, those same boda bodas also function as ambulances (including bringing the General to a hospital after the attack) and many other essential purposes.

It should be emphasized that this latest attempt at boda boda mass surveillance is part of a broader effort by the government of Uganda to exert power and control via digital surveillance and thereby limit the full enjoyment of human rights offline and online. One example is the widespread use of indiscriminate drone surveillance. Another is the Cyber Crimes Unit in the Ugandan police which, since 2014, has had overly broad powers to monitor the social media activity of Ugandans. Unwanted Witness has raised concerns about the intrusive powers of this unit, which violate Article 27 of the 1995 Uganda Constitution that guarantees the right to privacy.

And that is not all. In 2018, the Ugandan government contracted the Chinese firm Huawei to install CCTV cameras in all major cities and on all highways, spending over $126 million USD on these cameras and related facial recognition technology. In the absence of any judicial oversight, there are also concerns about backdoor access to this system for illegal facial recognition surveillance on potential targets and the use of this system to stifle all opposition to the regime.

The fears about the use of this CCTV system to violate human rights and stifle dissent came true in November 2020. Following the arrest of two opposition presidential candidates, political protests erupted in Uganda, and this CCTV system was used to crack down on dissent after these protests. Long before these protests, the Wall Street Journal had already reported on how Huawei technicians assisted the Ugandan government to spy on political opponents.

This is taking place in a wider context of attacks on human rights defenders and NGOs. Under the guise of seeking to pre-empt terror threats, the state has instituted cumbersome regulations on nonprofits and granted authorities the power to monitor and interfere in their work. Last year, a number of well-known human rights groups were falsely accused of funding terrorism and had their bank accounts frozen. The latest government clampdown on NGOs resulted in the suspension of the operations of 54 organizations on allegations of non-compliance with registration laws. Uganda’s pervasive surveillance apparatus will be instrumental in these efforts at censoring and silencing human rights organizations, activists, and other forms of dissent.
The intrusive application of digital surveillance harms the right to privacy of Ugandans. Privacy is a fundamental right enshrined in the 1995 Constitution and numerous international human rights treaties and other legal instruments. The right to privacy is also a central pillar of a well-functioning democracy. But in the quest to surveil its population, the Ugandan government has either underplayed or ignored the violation of human rights.

What is especially problematic here is the partial privatization of government surveillance to individual corporations. There is a long and unfortunate track record in Uganda of private corporations evading all human rights accountability for their involvement in surveillance. In 2019, for example, Unwanted Witness wrote a report that faulted a transport hailing app—SafeBoda—for sharing customers’ data with third parties without their consent. With the planned GPS tracking, Ugandan boda boda users will have their privacy eroded further, with the help of the Russian security firm. Driven by a national security agenda and the desire to control and suppress any opposition to the long-running Museveni presidency, digital surveillance is proliferating as Ugandans’ rights to privacy, to freedom of expression, and to freedom of assembly are harmed.

October 13, 2021. Dorothy Mukasa is the Chief Executive Officer of Unwanted Witness, a leading digital rights organization in Uganda.

October 13, 2021 Dev Account Uncategorized

GJC Issues a Solidarity Letter in Support of Communities in the Dominican Republic Resisting the Expansion of Barrick Gold’s Pueblo Viejo Mine

CLIMATE AND ENVIRONMENT

GJC Issues a Letter of Support for Communities in the Dominican Republic Resisting the Expansion of Barrick Gold’s Pueblo Viejo Mine

On October 4, 2021, the Global Justice Clinic and 42 other civil society organizations sent a letter to the Dominican Ministries of Energy and Mines and the Environment and Natural Resources in response to Barrick Gold’s plan to expand its mine in the Dominican Republic. They expressed solidarity with communities located in the area. Residents and allies, including Dominican politicians, academics, and activists, have noted that the site where Barrick proposes to build a tailings dam is the headwater of one of the most important rivers in the country, the Ozama River. In recent weeks, thousands of people have protested the proposed expansion. This is the second solidarity letter that the Global Justice Clinic has helped to coordinate.

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The first letter, issued in May, raised concern over how the proposed expansion may exacerbate vulnerability to climate change and Barrick’s track record of environmental harm. Five months later, resistance against the proposed expansion has grown.

This post was originally published as a press release on October 4, 2021.

October 4, 2021 Dev Account Uncategorized

GJC Issues Statement Calling for End to Mass Deportations to Haiti

HUMAN RIGHTS MOVEMENT

GJC Issues Statement Calling for End to Mass Deportations to Haiti

The Global Justice Clinic and immigrant justice and human rights organizations—many of which are Haitian-led—release a statement denouncing the Biden administration’s launch of one of the largest mass deportation campaigns in U.S. history. These deportations target Haitian people and violate migrants’ rights to seek asylum. The U.S. government is sending Haitian people, including many children and babies, to a country that is reeling from political and humanitarian crises. The decision is infected with anti-Black and anti-Haitian discrimination. The Global Justice Clinic and fellow signatories call for an immediate halt to deportations to Haiti and an end to unlawful Title 42 expulsions.

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This post was originally released as a press release on September 21, 2021.

September 21, 2021 Dev Account Post

“Leapfrogging” to Digital Financial Inclusion through “Moonshot” Initiatives

TECHNOLOGY & HUMAN RIGHTS

“Leapfrogging” to Digital Financial Inclusion through “Moonshot” Initiatives

The notion that new technological solutions can overcome entrenched exclusion from banking services and fair credit is quickly gaining widespread acceptance. But tech-based “fixes” often funnel low-income groups into separate, inferior systems and create new tech-driven divisions.

In July 2021, the New York City Mayor’s Office of the Chief Technology Officer launched the NYC[x] Moonshot: Financial Inclusion Challenge. This initiative seeks to deploy digital solutions to address inequalities in access to financial institutions. As the Chief Technology Officer stated, “Too many people have been left out of the financial system for too long. This disparity means that financial transactions … end up costing more for those who can least afford it.”

One in ten Americans are “unbanked,” meaning that they do not have a bank account. People of color are disproportionately excluded from traditional financial institutions. Banks consistently operate fewer branches in Black, Native American, and Latinx communities, creating “banking deserts,” while the practice of redlining continues. Poorly-regulated predatory financial institutions such as payday lenders, which impose higher costs than banks and trap customers in cycles of debt, are highly concentrated in these communities and take advantage of financial exclusion. In New York’s borough of the Bronx, over 49% of households are unbanked and high-cost lenders significantly outnumber banks.

Unequal access to banking means unequal access to fair credit. This compounds inequalities, as a poor credit record increasingly determines crucial outcomes, including higher interest rates on loans, higher insurance premiums, and difficulty obtaining employment or housing.

NYC is pursuing technology-based solutions to address these issues. The Moonshot initiative, which seeks proposals “utilizing breakthrough financial inclusion technology” to bring the unbanked into the financial system, follows previous tech-driven schemes. A recent initiative involved IDNYC, the city’s official identification card launched in 2015. This ID scheme had sought to facilitate access to banking by providing government-issued IDs to groups previously unable to open bank accounts for want of official identification; the ID is explicitly available to undocumented immigrants. However, shortly after its launch, the city’s largest banks dealt a blow to the IDNYC scheme by refusing to accept it as sufficient identification to open accounts. In response, the Mayor’s Office turned to technology. In 2018, it solicited proposals from financial firms to introduce electronic chips—the same smartcards used in debit cards—into the ID cards. This would allow IDNYC cardholders to load money onto their ID cards and make payments using these cards. Such reloadable cards are known as prepaid cards.

This proposed integration of identification and payment functions was not unique. In the U.S., the city of Oakland’s municipal identification scheme enabled cardholders to have their welfare benefits deposited onto the ID card and make payments with it. Also in California, the city of Richmond’s ID similarly functions as a prepaid card. In 2020, MasterCard’s “City Key” card, which combines official identification and payments, was distributed to low-income residents in Honolulu. Outside of the U.S., MasterCard was involved in adding electronic chips to national ID cards in Nigeria, and the Malaysian national ID also functions as a reloadable debit card.

But the proposal to incorporate smartcards into IDNYC was abandoned. Dozens of immigrants’ rights organizations warned that the integration of payment functions increased immigrant cardholders’ risk of surveillance and profiling. Adding the chip would lead to “massive data collection” by the financial technology firm brought into IDNYC and, because such firms are legally required to retain information about cardholders, undocumented immigrants’ data could be subpoenaed by the Trump administration. The Mayor’s Office accepted that these risks were fundamentally in conflict with the inclusionary goals of IDNYC and withdrew the plan.

While the proposal was abandoned, the narratives and driving forces behind it have intensified. Turning to a prepaid card system to “eliminate banking deserts” in NYC followed a well-established script that promises to “leapfrog” over deeply-rooted social problems using new technologies. The Gates Foundation, McKinsey, MasterCard, and others have long furthered this narrative that groups left behind by traditional financial institutions can be reached through innovative technological solutions which “leapfrog” banks. Bill Gates was famously quoted saying, “banking is necessary but banks are not”—and today, actors which are not banks, such as payment technology companies and telecommunications firms, are increasingly offering “financially-inclusive” services such as mobile money and smartcard solutions in explicit efforts “to ‘disrupt’… traditional banking services.” Prepaid cards especially seek to bypass banks: by their very design they operate without any link to bank accounts.

As such, these technological solutions funnel unbanked groups into a separate, “parallel banking system.” Prepaid cards do not provide access to bank accounts, so cardholders remain unbanked. This is an inferior banking product; cardholders do not gain the same access to the services and fairer credit that bank accounts enable. Financial inclusion persists, but the unbanked now have smartcards.

Further, the companies “disrupting” banking are usually not subject to the same legal obligations as banks, nor do they provide the same financial protections. Within these separate, technology-enabled payment systems for the unbanked, the extractivism and predatory practices that financial inclusion efforts are supposed to address re-emerge. NYC’s Chief Technology Officer had lamented that financial exclusion means that transactions cost “more for those who can least afford it”—but when Oakland launched its smartcard ID, the company running the prepaid function levied countless fees on cardholders, including $0.75 per transaction, $1 per reloading of funds, and a $2.99 monthly fee. The fees were higher than those of banks. Further, the insistence that electronic payments will solve financial exclusion is motivated by a desire to monetize new customers’ transaction data. Companies are racing to “capture the data of the newly ‘included’” and uncover the “financial lives of the poor” as a new market segment.

As the Immigrant Defense Project and others argued, turning IDNYC into a prepaid card would therefore “be perpetuating, not resolving, inequality in our banking system.” Within our work outside the U.S., we see the same technological solutions being embraced, all while they siphon low-income groups toward less-regulated, separate systems. For example, in South Africa and Australia, recipients of state benefits are forced onto prepaid cards not linked to traditional bank accounts. Still, “digital financial inclusion” through these technologies is being hailed as the solution to financial exclusion.

The 2021 Moonshot initiative appears to be based on the same ideals. The very notion of a “moonshot” is solutionist—it connotes a monumental (technologically-driven) effort to achieve a lofty goal. Official “launch” documents state that technology can “help solve the most pressing issues of people’s lives.” Rather than seeking to work with banks, the scheme turns to developers: the unbanked need “new options.” This focus on technology can obscure the root causes of financial exclusion—namely racism, discrimination, and predatory financial practices. “New options” will too often mean separate, inferior systems; and eschewing attempts to resolve inequalities within the “old options” leaves harmful practices—such as the linking of everything from housing to insurance with credit reports, continuing redlining, and the closing of bank branches without regard for those left behind—unaddressed.

September 21, 2021. 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.

September 21, 2021 Dev Account Uncategorized

The Climate Fight Needs Imagination—Using the Tariff Act of 1930 to Fight Climate Change

CLIMATE AND ENVIRONMENT

The Climate Fight Needs Imagination-Using the Tariff Act of 1930 to Fight Climate Change

The Human Rights and Climate Change movement should make use of less conspicuous tools, like the administrative agency, and forms of exploitation as a way of targeting corporations in the climate change fight.

Flags of various countries including U.S., Lebanon among others. — Vladislav Kapin (unsplash)

It is well-known that a handful of corporations are responsible for most of the world’s greenhouse gas emissions. And yet the private sector marches forward flaunting an insignia of impunity, due to slow adaptability by legal frameworks coupled with its diligent resistance. Practitioners and advocates across the world are therefore hard at work concocting creative ways to bring a scintilla of accountability to such actors. One of the most powerful results of such efforts has been the rights turn that climate litigation has taken, in which claimants use human rights arguments to hold governments and corporations accountable for their egregious climate change actions.

This emerging human rights & climate change (HRCC) field is transcending traditional means of targeting corporations (like tort law, liability, and criminal law) and is sure to expand its reach to corporate actors with breakthrough decisions like Milieudefensie et al v Royal Dutch Shell. For the first time, a corporation was held responsible for lowering its greenhouse gas emissions. Despite this, corporations continue to be secondary duty-bearers under international law and human rights obligations. They, in other words, continue to be fugitive.

This means that the HRCC movement must keep using its imagination. It should recognize the power of seemingly minor legal interventions and the use of less-shiny tools like the administrative agency. It should also be attentive to other forms of exploitation that are inherently—but not so obviously—linked to climate change, as targeting these can provide another avenue for climate change action. And we need all the help we can get.

What is 19 U.S.C. § 1307?

Section 307 of the Tariff Act of 1930 (19 U.S.C. § 1307) prohibits the importation into the US of any goods made “wholly or in part” using forced, indentured, or convict labor in any part of the world. Once a petition is filed, the US Customs and Border Protection (CBP) conducts an investigation to determine whether to issue a Withhold Release Order (WRO) to prevent imports from entering the country.

What does 19 U.S.C. § 1307 have to do with climate change?

The business model of outsourcing lower-value activities throughout “supply chains” spanning countries with wide-ranging (think: weak) legal systems and human rights practices is at the core of value creation for multinational corporations. Indeed, the agriculture, food, garment, mining and extraction industries, to name a few, get more bang for the buck when using the labor of more than 24 million modern slaves. 19 U.S.C. § 1307 is designed to target this problem by closing the door on forced-labor products.

The lack of transparency that allows corporations to exploit and perpetuate modern slavery has also given them a green light to indulge in environmental attacks. Indeed, those individuals who perform forced labor often work for industries with the most egregious climate change impacts. Yet the inexistent recognition of 19 U.S.C. § 1307 as a tool for climate accountability points to a conceptual gap in advocacy—a lack of consideration for the nexus between modern slavery, environmental degradation, and climate change.

Let’s take the Brazilian beef industry as an example. As the world’s principal beef exporting country, Brazil exported a total of US$7.3 billion in beef in 2019 alone—equivalent to 21% of global beef exports. Brazilian civil society, the ILO, the UN Special Rapporteur on Contemporary Forms of Slavery, the US Department of State and the Congressional Research Service, among other institutions, have evidence that the industry is sustained by rampant forced labor. Indeed, over half of all rescues of forced labor victims between 1995 and 2020 took place in the livestock sector. The crime is often accompanied by environmental offences, as the cattle ranch workers are themselves hired to clear native forests for pasture.

Uncoincidentally, the region with the highest incidence of slave labor in Brazil is the northern “deforestation arch,” including the Amazon Forest which is plagued by weak regulation. Between 2003 and 2014, over 21,000 workers were rescued from forced labor in the Amazon region alone, about 70% in the cattle raising sector. It is no secret that deforestation obliterates the Amazon’s ability to save humanity.

So, who is behind the monstrous Brazilian beef industry? JBS, Marfrig, and Minerva. Together, they are responsible for two-thirds of all Brazilian beef exports and account for over 40% of the Amazon rainforest’s slaughter capacity. The US is the fifth largest importer of Brazilian beef, importing 2.84% of all Brazilian exports, importing 56% of all Brazilian unprocessed beef exports between February and July 2020 alone. And it doesn’t stop there. Cattle raising in the Amazon has increased more than tenfold over the last 40 years. The US Department of Agriculture projects that Brazil’s export market share will reach 23% of global beef exports by 2028. With this impending storm, using the readily available 19 U.S.C. § 1307 as one of multiple tools to deter and bring awareness to both the human and climate grievances taking place in the Amazon Forest should be a no-brainer.

Why else use 19 U.S.C. § 1307?

There are many other reasons why advocates should take advantage of 19 U.S.C. § 1307:

Its reawakening: The statute laid dormant since its inception in 1930 due to its “consumptive demand exception” that largely swallowed the rule. After the Obama administration eliminated the exception in 2015, there has been a considerable uptick in the issuance of WROs. Between March 2016 and June 2021, the CBP issued almost 30 WROs, standing in stark contrast to the 33 WROs total issued from 1930 to 2015. This is part of a broader willingness by the current administration to use trade enforcement to tackle forced labor—an issue that has generally garnished wide bipartisan support. With this political momentum, now is the right time to act.
A Low Evidentiary Standard: If the CBP Commissioner finds at any time that information available reasonably, but not conclusively, indicates that merchandise violating 19 U.S.C. § 1307 is being, or is likely to be, imported into the US, then a WRO may be issued. This evidentiary threshold is much lower than that applicable to criminal statutes, like the TVPA, and makes this remedy quite accessible. Thus, even if courts deny a finding of forced labor in a specific case, there is hope that the CBP issues a WRO.
A Heavy Burden Shift to the Corporation: Once a WRO is put in place, the burden of proof shifts to the company in question to provide evidence, in ninety days, that the goods in question were not produced with forced labor or that it has remediated all of the 11 ILO indicators of forced labor. It is rare—has only happened twice—for a company to meet this high burden. So once a WRO is put in place, it is likely to stay in place.
Modeled After a Progressive Definition: The definition of forced labor used by 19 U.S.C. § 1307 was modeled after the ILO Convention’s definition. ILO instruments have therefore informed US approaches to forced labor, with the CBP explicitly referencing ILO standards in each WRO press statement issued in 2019. This is good news for practitioners, as ILO standards are progressive and recognize a wide range of behaviors as forced labor. US governmental bodies have recently called for the CBP to further promote alignment with ILO standards.
Accessible: While collecting evidence of forced labor may be daunting, the WRO petition submission process is straightforward and free of cost. This saves petitioners from resource drainage and the painfully slow timeframe of taking corporations to court. In addition, it allows petitioners to surpass the litigation tactics of corporate giants, including filing for bankruptcy, demanding stays, and launching sanctions motions against plaintiffs’ counsel.

Even if not explicitly tied to climate, WROs have already been successfully issued against corporations, like those in the palm oil and mining industries. Using our imagination to take advantage of readily available tools, like 19 U.S.C. § 1307, to build a holistic climate movement that covers all its bases is the least we can do for our planet.

August 17, 2021. Melina De Bona, The Earth Rights Research & Action (TERRA Law).

August 17, 2021 Youssef Farhat Post

Government’s new strategy grossly inadequate, says former UN Rapporteur Philip Alston

INEQUALITIES

Government’s new strategy grossly inadequate, says former UN Rapporteur Philip Alston

Privatization of the bus sector in England outside London, Scotland, and Wales has delivered a service that is expensive, unreliable, and dysfunctional, said New York University human rights expert, Philip Alston, in a new report. The former UN Special Rapporteur criticized the government’s new national bus strategy for England, which he said merely tinkers with the existing system, offering ineffective half measures that fail to address the structural cause of the country’s bus crisis.

The 38-page report finds that many people have lost jobs and benefits, faced barriers to healthcare, been forced to give up on education, sacrificed food and utilities, and been cut off from friends and family because of a costly, fragmented, and inadequate privatized bus service that has failed them.

“Over the past 35 years, deregulation has provided a master class in how not to run an essential public service, leaving residents at the mercy of private actors who have total discretion over how to run a bus route, or whether to run one at all,” said Philip Alston, who authored the report with Bassam Khawaja and Rebecca Riddell, Co-directors of the Human Rights and Privatization Project at NYU’s Center for Human Rights and Global Justice. “In case after case, service that was once dependable, convenient, and widely-used has been scaled back dramatically or made unaffordable.”

The UK government imposed an extreme form of privatization and deregulation on the bus sector in England outside of London, Scotland, and Wales in 1985, arguing a year earlier that competition would deliver “a better service to the passenger at less cost.” More than three decades later, the promised benefits have not materialized and the current service is grossly inadequate.

Researchers spoke to passengers in England, Scotland, and Wales who described a broken system of fragmented services, disappearing routes, reduced frequency, poor reliability, falling ridership, limited coverage, inefficient competition, and poor information. Average fares have skyrocketed, rising 403 percent in England since 1987, while ridership has plummeted, falling an estimated 38 percent in England outside of London between 1982 and 2016/17.

“Private companies understandably prioritize profits rather than the public good, extracting money from the system while cutting unprofitable but necessary routes,” said Khawaja. “The public has effectively become an insurer of operator profits, propping up private services with considerable subsidies.” Despite privatization, the government provides billions of pounds in funding for bus services annually, accounting for more than 40 percent of funding for bus services in England, and has allocated hundreds of millions more to support private operators during the COVID-19 pandemic.

Bus service failures have restricted access to work, education, healthcare, and food. This has been especially severe for low-income people or those in poverty, as well as those in rural areas, older people, women, and people with disabilities. Inadequate transport systems also jeopardize individuals’ ability to take part in society and cultural life. And because bus services are operated by effectively unaccountable private companies, those impacted often have little meaningful recourse.

“The absence of a strong public bus system affects a great many people’s economic opportunities, but also their means to participate in their communities, travel to football matches or libraries, and visit family and friends,” Alston said.

Buses provide an essential service and account for some 4.5 billion journeys per year in England, Scotland, and Wales—the majority of all journeys on public transportation. More people commute to work by bus than all other forms of public transportation combined. They also boost economic growth, enable access to basic rights, alleviate poverty, and reduce congestion and greenhouse gasses.

The United Kingdom has international human rights obligations directly related to transportation. Physical accessibility is an essential component of many economic and social rights, but also civil and political rights such as the right to vote, to freedom of religion, and to assembly. Many residents’ ability to exercise these rights is directly contingent on access to a reliable and affordable bus service. Parliament should legislate minimum standards of transportation that UK residents can depend on, instead of leaving it up to the vagaries and predations of the market, Alston said.

Alston and his co-authors called on the governments of England, Scotland, and Wales to cease relying on private actors and market forces to determine access to such a vital service, adopt public control of bus transport as the default system, and provide the necessary financial and political support to local authorities pursuing public control or ownership of bus services.

“Unlike the current system, public control or ownership would allow for reinvestment of profits, integrated networks, more efficient coverage, simpler fares, consistency with climate goals, and public accountability,” said Riddell. “It’s also a more cost effective approach.”

“The United Kingdom is one of the wealthiest countries in the world, and can afford a world-class bus system if it chooses to prioritize and fund it,” Alston said. “Instead, the government has outsourced responsibility for a vital public service, propping up an arrangement that prioritizes private profits and denying the public a decent bus.”

This story was originally published as a press release on July 19, 2021.

July 19, 2021 Dev Account Uncategorized

Enough Symbolism, We Need Real Climate Action: Why We Shouldn’t Let Governments Hide Behind Symbolic Climate Emergency Declarations

CLIMATE AND ENVIRONMENT

Enough Symbolism, We Need Real Climate Action: Why We Shouldn’t Let Governments Hide Behind Symbolic Climate Emergency Declarations

Though symbolic climate emergency declarations can helpfully shape the narrative around climate change, advocates shouldn’t let them be used to mask government failures to take material action to combat the climate crisis.

The dawn of a new administration raises hopes among climate activists that the U.S. government may finally take the urgent action needed to avert climate catastrophe. High-profile climate advocates have recently called on Joe Biden to be the “climate president.” As part of this effort to push Biden on climate change, some–including Representative Alexandria Ocasio-Cortez and Senate Majority Leader Chuck Schumer–have argued that the president should treat climate change like an emergency by declaring a climate emergency and, potentially, using the emergency powers afforded the executive to take bold actions on climate change.

What would that look like? Would it materially advance climate action? Experiences around the world on climate emergency declarations offer an answer: it depends.

A handful of countries and hundreds of municipalities, cities, and towns worldwide have declared a climate emergency, and those numbers continue to increase. Countries that have issued climate emergency declarations include: New Zealand, the United Kingdom, Canada, Bangladesh, and Argentina. Municipalities and cities likewise include: Sydney, Australia; New York City; Bogotá, Colombia; and South Chungcheong, South Korea. For some observers, this is an outstanding trend. The picture, however, is complicated upon further inspection and assessment of what these climate emergency declarations actually do.

While some of these climate emergency declarations are paired with material policy commitments and programs, overwhelmingly, these declarations are only symbolic. Although it’s important to shift the discourse on climate change so that its urgency garners more mainstream recognition, with less than ten years left to put humanity on track to avoid climate disaster, it just isn’t enough.

Below, we take a look at the climate emergency declaration trend and what it means for the new U.S. president.

What Is a Climate Emergency?

A climate emergency declaration is a resolution or piece of legislation passed by a governing body that recognizes climate change as an emergency and, generally, voices support for action commensurate with treating climate change as an emergency. The first climate emergency declaration was passed in 2016 in Darebin, Australia and hundreds of emergency declarations have been issued since.

Generally, climate emergency declarations tend to be non-binding resolutions. They may also be imbedded in larger climate legislation. If they are stand-alone resolutions, then they may be followed by additional climate legislation or policy commitments aimed at further reducing greenhouse gas emissions.

The content of the declarations varies, but they all label climate change as an “emergency.” They generally include expressions of support for mobilizations of resources, particularly on a massive scale. Indeed, one of the goals of Climate Mobilization, an organization leading the climate movement push for emergency declarations, is to build political will using emergency declarations for WWII-level resource mobilization in the fight against climate change. Many declarations also support efforts to reach carbon neutrality by 2030 or some other year in the near- to medium-term future.

So, What Have Climate Emergency Declarations Actually Achieved?

Undeniably, climate emergency declarations have helped shift the discourse around climate change to better reflect the gravity and the urgency of the situation. This shift in the framing of climate change–from a problem that could be gradually addressed to one that requires immediate and profound action–is a goal of the climate advocates working to advance these declarations. Advocates argue that declaring climate emergencies can help trigger a “fundamental departure from [the] ‘normal’ mode of functioning” by waking people up to the existential threat posed by climate change. In other words, declaring a climate emergency can help shift people from functioning in a “business as usual” mode to a “climate emergency” mode by “telling the truth” about the nature of the climate threat.

Climate emergency declarations overwhelmingly, however, fall short of advancing material action on climate change. The climate emergency declarations issued by the United Kingdom, Canada, the European Union, Japan, Spain, and Argentina, for example, are non-binding insofar as they do not require the government to take any particular action on climate change. Moreover, the vast majority of these declarations have been issued by local governments, which typically don’t have the emergency powers that federal governments do. Even in places where climate emergency declarations are paired with substantive policies, like in New Zealand, the policy itself may not be sufficient nor actually reflect, in material terms, the characterization of climate change as an emergency. In other words, though political leaders are employing “emergency” rhetoric, they are failing to match that rhetoric with the substantive action that we would expect to see governments take in emergency situations. Though these political leaders are “declaring” climate change as an “emergency,” they are not invoking the emergency procedures and powers permitted under law that are used in other emergency situations, such as natural disasters and war.

Why It Matters that These Declarations Are Generally Non-Binding and Symbolic in Nature

Though climate emergency declarations clearly help communicate the dangers of climate change, they also provide cover for political leaders who want to play the role of a “climate leader” without taking the tangible action necessary to actually lead on climate change.

Take Canada, for example. In 2019, the Canadian House of Commons passed a non-binding resolution expressing the legislative chamber’s view that climate change is indeed an emergency and requires a response requisite with its characterization as such. However, the very next day, the Trudeau administration approved a controversial pipeline expansion. The fact that the Canadian government can pay lip service to climate action through a non-binding resolution while at the same time advancing policies that undermine climate mitigation highlights the core limitations of climate emergency declarations as they have been designed thus far. Not all governments demonstrate inconsistency on climate change as extreme as this, but the effect is similar. Climate emergency declarations, which are overwhelmingly symbolic, allow political leaders to paint themselves as being serious on climate change without making actual commitments or taking any concrete actions to stem the climate crisis.

What Does All of This Mean for the United States?

The point is: we must not settle for symbolic performances in lieu of the ambitious material climate action that is so desperately needed.

Instead, let’s continue to push President Biden to be the climate president and treat climate change like the emergency it is. After all, this is one of the last presidencies that can still undertake ambitious actions to avoid locking in climate wreckage in the coming decades. But, given the stakes, let’s not give this administration–nor any government–the opportunity to hide behind symbolic performances. That means pushing Biden to make hard, substantive commitments on climate change, including the use of the constitutional and legal powers afforded the president during emergencies, so that climate action doesn’t continue to languish in a Congress, still home to far too many climate deniers and climate minimizers.

July 6, 2021. Jacqueline Gallant, The Earth Rights Research & Action (TERRA Law).

July 6, 2021 Youssef Farhat Post

Why We Must Stand with Haiti’s Democracy Activists

HUMAN RIGHTS MOVEMENT

Why We Must Stand with Haiti’s Democracy Activists

When tens of thousands of people are on the streets decrying dictatorial actions, they’re cheered on as pro-democracy protestors. Yet when similar protests occur in Haiti, they are diminished and overlooked. Being on the right side of history requires that we listen to the voices of Haitian civil society.

In the days leading up to February 7, 2021, the U.S. State Department announced its support for the continued rule of President Jovenel Moïse in Haiti. This position was in direct opposition to much of Haitian civil society, including its vibrant human rights community, which condemned Moïse’s occupation of the presidency as an unconstitutional prolongation of his mandate, which they understand to have ended on February 7. This interpretation of Haiti’s Constitution is shared by Haitian legal experts, including its judicial oversight body, religious leaders and activists. Haitian civil society has been sounding the alarm about Moïse’s abuse of power for years, documenting links to a series of massacres, corruption, and the proliferation of gangs. There has never been a more critical juncture for those based outside of Haiti to listen to Haitian voices.

To emphasize this imperative, the Global Justice Clinic issued a joint statement on February 13 calling for the U.S. government to address the human rights concerns of Haitian civil society and hosted a panel discussion with NYU’s Hemispheric Institute on March 24 to hear directly from Haitian human rights defenders and civil society leaders about the current situation in Haiti.

The U.S. government is not alone in giving short shrift to Haitian civil society. Media coverage has failed to adequately convey the widespread outcry against this administration. Nor has it captured the energy and hope that buoys Haitian human rights activists in this moment. Emmanuela Douyon is an economist and anti-corruption activist with “Nou Pap Domi,” a collective of young Haitians committed to fighting corruption, impunity, and social injustice. She’s inspired by the continued involvement of civil society, especially as “a climate of fear has settled in” the country over the last few months due to insecurity, political violence, and kidnappings: “When I see people who fought against dictatorships – who were victims and suffered a lot – and they come back out here to stand up and to fight, that gives me a lot of strength. When I see people from my generation and younger who say they’re going to keep standing and defending their values, the rule of law, democracy – that gives me hope that we can do more.” [1] Rosy Auguste Ducena, a human rights attorney and Program Director for Haiti’s National Network for the Defense of Human Rights (RNDDH), describes how the continued broad-based engagement motivates her: “What enables civil society to continue playing its role… is that the people have shown they have the will to not give up in this battle – there is a will to see change… That’s the biggest message of hope we have. We’ve reached a moment where we, as civil society, are one with the people. When we see they’re taking their claims and demands into their own hands as their own, we don’t need to work for them; we’re working together and that’s the best hope we have in this current situation.”

Haitian advocates forcefully condemn the pressure by the international community to hold presidential elections this year and to facilitate a referendum to alter the constitutional structure of Haiti’s government. Woodkend Eugene, a human rights attorney from the Human Rights Office in Haiti (BDHH), acknowledges that while it can be “difficult for everyone to agree on a solution, what is certain is that what is happening right now is not the solution.” He stresses that the Haitian Constitution states clearly that there can be no amendments to the Constitution via referendum, that “we cannot go into an election with an electoral council that is not legitimate,” referring to the unconstitutional appointment of its members by Moïse, and in a context of “generalized insecurity where multiple people in power have been connected to armed gangs” (the U.S. Treasury Department imposed sanctions against three such individuals in 2020). Ms. Auguste also pointed out the potential consequences of pushing for elections now: “The international community might be pushing for it, but the Haitian people have said there are things they will not accept or tolerate, and that’s going into elections with this administration. The people won’t accept this referendum, and if this continues to be pushed, we risk falling into a post-electoral crisis… a bigger crisis than [what] we have now.”

Regarding the appropriate role of the international community and the U.S. government in Haiti’s affairs, Ms. Auguste made her message clear: “Firstly, we are not children…Let the Haitian people choose their own future, choose when elections are right for them and choose how their country will be led.”

Ms. Douyon urged the U.S. government to “avoid repeating history, as they did with Duvalier” and to be “on the right side of history” this time by “act[ing] to stand with the people.” U.S. support for the Duvalier dictatorship and its tragic consequences are well-documented.

The clarity and consistency in Haitian advocates’ analysis and recommendations is striking, particularly because Haiti is often painted by the media and foreign actors as a “problem-state”—a never-ending and uncontrollable locus of crisis where it is impossible to discern root causes. Each of the panelists demonstrated that these tropes should be rejected and that Haitian experts should be recognized for what they are—those best placed to assess what their country needs the most. If their recommendations were adopted, rapidly held elections would not be portrayed as the only viable path forward. Instead, the power grab of a man accused of collusion in grave human rights violations would be plainly unveiled.

When tens of thousands of people are on the streets decrying dictatorial actions, they are often cheered on as pro-democracy protestors. Yet when similar protests occur in Haiti, as they have over the last several weeks, these protests are diminished and overlooked. Being on the right side of history requires that we listen to the voices of Haitian civil society.

2021. Gabrielle Apollon

Gabrielle Apollon, Director of Haitian Immigrant Rights Project at the Center for Human Rights and Global Justice at NYU School of Law.

[1] All of the quotes from the panel discussion have been translated from Haitian Creole into English.

June 28, 2021 Dev Account Uncategorized

GJC Issues Statement on Haiti’s Constitutional Referendum

HUMAN RIGHTS MOVEMENT

GJC Issues Statement on Haiti’s Constitutional Referendum

The Global Justice Clinic, the International Human Rights Clinic at Harvard Law School, and the Lowenstein International Human Rights Clinic at Yale Law School issued a statement on June 8, 2021, calling on the U.S. government to join civil society’s demand that the government of Haiti cancel the planned constitutional referendum in Haiti. The referendum, which will ask Haitian people to vote “yes” or “no” on a new Constitution, is illegal. It is the most recent, bold effort by President Jovenel Moïse to consolidate power and comes on the heels of dozens of presidential decrees that undermine checks on the executive. Haitian civil society has widely denounced the referendum, noting its illegality and emphasizing the impossibility of holding a vote under the current administration. International actors are increasingly recognizing the illegitimacy of the referendum, and the danger to democracy that it poses. However, continued technical support and provision of aid to the government of Haiti to hold elections means that international actors, including the United States government, are tacitly supporting the unconstitutional vote. With long experience working in solidarity with Haitian civil society, and building off our February statement, the clinics urge the U.S. government to urgently and publicly call to cancel the referendum.

Download Statement

June 8, 2021. Statements of the Global Justice Clinic do not purport to represent the views of NYU or the Center, if any.

June 8, 2021 Dev Account Uncategorized