Tuesday, November 1, 2016

Labor Rights Are Human Rights: Contributions of Maina Kiai to US Human Rights Advocates

By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Deputy Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute

 Topic: Human Rights & Social Justice - AC4 Link - Columbia University



With his most recent report, The Rights To Freedom Of Peaceful Assembly And Of Association In The Workplace, UN Special Rapporteur Maina Kiai breaks new ground.  Kiai is not articulating new legal norms, but his effort to bridge two international legal frameworks with complementary standards is innovative nonetheless.  The report links the norms of the International Labor Organization and core human rights agreements to the struggle to improve the lives of workers who increasingly suffer in the face of economic globalization. It also underscores the need to address the reality that over 60% of the world’s workers are employed in the informal sector, where there is virtually no legal recourse for violations of basic rights.  

As Kiai observes: 

"Our world and its globalized economy are changing at a lightning pace, and it is critical that the tools we use to protect labour rights adapt just as quickly. A first step ... is to obliterate the antiquated and artificial distinction between labour rights and human rights generally.  Labour rights are human rights."

Many US human rights advocates and organizations have made these connections in their advocacy.  As a result, during the 2010 UPR, the U.S. received a recommendation to recognize the right to association as established by the ILO for migrant, agricultural, and domestic workers.  (The US accepted this recommendation, noting support for ILO principles and noting “Although not a party to ILO conventions 87 and 98 on those topics, we have robust laws addressing their fundamental principles.”)  Reviews of the US human rights record in 2015 and 2014 also resulted in recommendations to the United States to ratify particular ILO conventions.   

In addition to making the case for integrated approach, Kiai seeks to bring his findings on the relevance of human rights norms to new audiences.  Departing from the traditional UN report format, the Rapporteur has prioritized developing accessible illustrations of the impact of lack of protections for workers and recommendations for change.  To this end, the report is accompanied by a poster-style fact sheet that distills some of his key findings.  This is one of a series of over a dozen fact sheets on freedom of association, and assembly developed by the Rapporteur. Some of the fact sheets focus on country visits, while others distill the obligations of states, multilateral organizations, and other stakeholders, to respect, protect, promote, and ensure the enjoyment of these fundamental rights.  Kiai’s website also serves as a clearinghouse for information related to his mandate. You can search by country, and by special projects.  This website is a great resource, and an entry point for engagement.  Notably, the site includes a request from the Rapporteur for information on pending cases where his intervention on freedom of peaceful assembly or association might be of assistance.  (One limitation to note:  many of the documents on the site are available only in English).

Maina Kiai’s name and mandate may already be familiar to U.S. human rights advocates because his recent U.S. visit garnered high profile media coverage (including stories in the LA Times and Washington Post).   His end of Mission statement, which you should read if you have not already, concluded with a range of powerful observations and recommendations.  Kiai also reflected on the national context in which his recommendations are situated:

"The United States is an impressive, complex and imposing nation in which to undertake a mission such as this. It is an economic powerhouse, a military superpower, a global engine of technological development, and one of the oldest democracies in the world.

It is also an extremely diverse nation, a nation of indigenous peoples, slaves and immigrants. It is a nation of diverse opinions and views, sometimes so strongly held that it once slid into Civil War. And it is a nation of struggle and resilience, home of one of the 20th Century’s most inspiring moments encapsulated by the Civil Rights Movement.

The experiences with various forms of diversity and complexity have not always been smooth. The country was founded on land stolen from its indigenous Native Americans; its early economic strength was built on race-based slavery against people of African descent; and successive waves of immigrants have faced discrimination, harassment or worse.

Today, unfortunately, America seems to be at a moment where it is struggling to live up to its ideals on a number of important issues, the most critical being racial, social and economic inequality, which are often intertwined.

To be clear, the focus of my mission was not race or discrimination. My mandate concerns the enjoyment of the rights to freedom of peaceful assembly and of association. But it is impossible to discuss these rights without issues of racism pervading the discussions. Racism and the exclusion, persecution and marginalization that come with it, affect the enabling environment for the exercise of association and assembly rights."

"But racial inequality is not the only inequality inhibiting the enabling environment for association and assembly rights. Although the United States engineered an admirable recovery following the financial crisis of 2007-08, this rising tide did not lift all boats. Productivity and economic output has grown, but the benefits of these have gone primarily to the wealthiest, as the wages of average people have stagnated. This has exacerbated the problem of inequality across all demographic groups, created more resentment, and more tension; providing more reasons for people to become politically engaged – including by exercising their assembly and association rights."

The Rapporteur’s initial reflections on the visit highlight the role of police in both protecting and violating the right to peacefully assemble and the implications of concealed weapons laws on this right.  Kiai discusses the ability of U.S. workers to unionize and collectively bargain, as well as the particularly precarious position of migrant workers in exercising the freedom of association.  His preliminary statement concludes with the impact of U.S. counter-terrorism measures and curtailment of association and assembly.  These findings reflect Kiai’s broad engagement with a wide array of civil society organizations during his 17 day visit.  The full report on Kiai’s U.S. visit will be released in June 2017. 

Election day is fast approaching.  It’s a critical time to double down on the human rights values to which we aspire, take a step back.  It is clear that around the country, people are angry and frustrated, and as Kiai noted: 

"It is at times like these when robust promotion of assembly and association rights are needed most. These rights give people a peaceful avenue to speak out, engage in dialogue with their fellow citizens and authorities, air their grievances and hopefully settle them. They are also a key vehicle for public participation for marginalized groups whose ability to participate in democracy may be otherwise limited by dint of being felons or migrants."

Our democracy depends on it.


JoAnn Kamuf Ward, Workplace | Permalink


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