TWN Info Service on UN Sustainable Development (Aug16/01)
4 August 2016
Third World Network

United States: Rights of assembly and association undermined by inequality
Published in SUNS #8294 dated 2 August 2016
 
Geneva, 29 Jul (Kanaga Raja) -- The United States today seems to be at a moment where it is struggling to live up to its ideals on the often intertwined critical issues of racial, social and economic inequality, a United Nations human rights expert has concluded at the end of an official fact-finding mission to the country.
 
In an end-of-mission statement made available here, Mr Maina Kiai (from Kenya), the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, said that this is having a negative impact on the exercise of the rights of peaceful assembly and of association in the country.
 
The Special Rapporteur undertook a 17-day visit to the United States from 11-27 July. A full report on his visit will be presented to the UN Human Rights Council in June 2017.
 
In his end-of-mission statement, the rights expert said: "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."
 
He made clear that the focus of his mission was not race or discrimination and that his 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 marginalisation that come with it, affect the enabling environment for the exercise of association and assembly rights."
 
The rights expert said this issue is particularly grave in the African-American community, and understanding its context means looking back at 400 years of slavery. It also means looking at the emergence of the Jim Crow laws that destroyed the achievements of the Reconstruction Era, which emerged at the end of slavery in 1865, and enforced segregation and marginalised the African-American community to a life of misery, poverty and persecution.
 
"It means looking at what happened after Jim Crow laws were dismantled, when old philosophies of exclusion and discrimination were reborn, cloaked in new and euphemistic terms. These may have not been race-based on their face, but they have, intentionally or not, disproportionately targeted African-Americans and other minorities."
 
The rights expert cited the example of the so-called "War on Drugs", and said that (resulting) from it, one out of every 15 black men is currently in jail. One out of every 13 African-Americans, meanwhile, has lost their right to vote due to a felony conviction.
 
"An aggressive emphasis on street-level ‘law and order' (or ‘broken windows' approach) policing combined with wide police discretion means that African-Americans are subjected to systematic police harassment - and sometimes much worse - often for doing nothing more than walking down the street or gathering in a group."
 
Convictions and incarcerations dramatically increased once the "War on Drugs" was set in motion, without a corresponding increase in drug use.
 
Similarly, said the Special Rapporteur, the crime laws passed under the Bill Clinton administration (1993-2001), including the federal "three strikes" law, implemented aggressively against people of colour have contributed to the huge rise in incarceration and exclusion of the black community, further fuelling discontent and anger.
 
The effects can often snowball: A minor criminal offense - or even an arrest without substantiated charges - can show up on a background check, making it difficult to find a job, secure a student loan or find a place to live.
 
"This marginalisation in turn makes it more likely that a person will turn to crime, for lack of any other option, and the vicious cycle continues."
 
These discriminatory laws and practices need to be seen in the larger context, he said, pointing out that Wall Street bankers looted billions of dollars through crooked schemes, devastating the finances of millions of Americans and saddling taxpayers with a massive bailout bill.
 
"Yet during my mission I did not hear any suggestions of a ‘War on Wall Street theft'. Instead, criminal justice resources go towards enforcing a different type of law and order, targeting primarily African-Americans and other minorities," said Mr Kiai.
 
"There is justifiable and palpable anger in the black community over these injustices. It needs to be expressed. This is the context that gave birth to the non-violent Black Lives Matter protest movement and the context in which it must be understood."
 
According to the rights expert, 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.
 
This inequality has been accelerated by declining union membership in a context of laws and practices which make it difficult for workers to organize, increasing corporate power, and a free market fundamentalist culture that actively discourages unionization. A dysfunctional, polarized Congress that has seemingly lost its tradition of compromise has made things worse.
 
In short, said the rights expert, people have good reason to be angry and frustrated at the moment. And it is at times like these when robust promotion of assembly and association rights are needed most.
 
The Special Rapporteur drew attention to several specific areas of concern. In the context of peaceful assembly and its management, he noted that almost all cities in the United States require permits for protests, contrary to international law and standards.
 
"It was disturbing to learn that assemblies organized by African-Americans are managed differently, with these protests often met with disproportionate force. Indeed, white and Muslim activists that I met acknowledged that black fellow protesters face harsher police encounters in the context of assemblies: police are more likely to be militarized and aggressive; black people are detained longer after arrests; they face more and heavier charges, more intimidation and more disrespect."
 
It is manifestly unwise to respond to a largely peaceful, grieving crowd with riot gear, random arrests, flimsy charges, rough physical handling, verbal insults and so forth. This is not only a violation of the right to peaceful assembly, it is also dangerous for participants, the general public and police officers, he said.
 
"I was struck by the vast and largely unchecked discretion that government authorities enjoy to arrest, to formulate (often petty) charges, to prosecute, to invite or deflect external scrutiny and support from the Department of Justice, and to organize internal complaints handling."
 
The rights expert said that this leads to an inconsistent picture of policing throughout the nation. Different authorities within a jurisdiction or in neighbouring jurisdictions do not share a common view or policy about policing; a lot ends up depending upon personalities.
 
"The outcry for accountability for police shootings is deafening. Given the attention to this issue and its importance, it is incomprehensible that a modern society such as the United States lacks official records that accurately document the number of victims of such shootings, the precise circumstances and the follow-up actions taken."
 
Such information would enable a deeper understanding of the situations in which lethal force is used and support adequate adjustments if proven necessary, said Mr Kiai.
 
The Special Rapporteur also touched upon the issue of migrant workers and freedom of association in the workplace, saying that from his discussions with various groups, he learned that the situation of migrant workers throughout the United States is characterized by the precariousness and exploitation of their employment situation, retaliation for drawing attention to adverse working conditions and a fear of taking action to seek improvement.
 
A broad range of workers are affected - documented and undocumented, skilled and ‘unskilled', seasonal and or long-term.
 
The rights expert said migrant workers are routinely subjected to harassment, intimidation, physical, sexual and psychological abuse, with those attempting to form or belonging to unions and organizations such as the Congress of Day Laborers being targeted for reprisals.
 
"Migrant workers' rights are violated by multiple actors who are motivated by perverse incentives that often converge to the detriment of migrant workers, including private sector employers, recruitment agencies, union- busting firms, Immigration and Customs Enforcement Agency, local police forces and sheriffs' offices, and private detention facilities."
 
Undocumented migrants face tremendous challenges in exercising their right to freedom of association. "I would like to emphasize that under international law all workers are entitled to their human rights, including the right to freedom of association. Crossing national borders - whether legally or otherwise - does not take away these rights."
 
Mr Kiai also pointed to the situation of documented workers who fare no better, saying that he met teachers from the Philippines who were brought into the United States on H-1B visas by a recruitment agency in circumstances that a court determined amounted to human trafficking.
 
The recruitment agency provided the teachers false information about the terms and conditions of work, financially exploited them, restricted their freedom of association and movement, and threatened them with deportation and loss of their jobs if they did not.
 
It was however gratifying to hear that the teachers were able to organize themselves, join a union and together struggle for better working conditions with much success.
 
Seasonal or guest workers on H-2B visas experience similar vulnerabilities such as exploitation by recruitment agencies, isolation, unsafe working conditions, and appalling living arrangements provided by employers.
 
Attempts to organize are met with threats and in some cases, job loss and deportation.
 
Visas are typically tied to a specific employer who exercises immense control over the employee, can terminate the employment contract arbitrarily, call in immigration enforcement to initiate deportation proceedings and illegally withhold wages without severe penalty.
 
"This ensures that the balance of power favours the employer rather than the employee. This arrangement is unfortunately, not dissimilar to the Kafala system of bonded labour practised in a number of countries in the Gulf region," said the Special Rapporteur.
 
He underlined that the right to establish unions is an important one through which workers collectively can level the playing field with employers. It was therefore disturbing to hear all the impediments facing workers who want to exercise this right.
 
"I was shocked to see that in states such as Mississippi, the lack of unionization and ability to exploit workers is touted as a great benefit for employers. The dangers of this are exemplified by the situation at the Nissan plant in Canton, Miss., where the company has aggressively worked to prevent unions from organizing."
 
"The figure that stands out for me is this: Nissan reportedly operates 44 major plants throughout the world; all of them are unionized, except for two of them in the US south. Why not Mississippi?," he asked.
 
The rights expert also expressed concern that US counter-terrorism legislation unduly curtails the right of associations to engage in humanitarian and peace building work abroad.
 
The Anti-terrorism and Effective Death Penalty Act (1996), amended by the USA Patriot Act of 2001, prohibits a wide range of support to terrorism but does so in a way that jeopardizes the right to freedom of association in the process.
 
For example, the act imperils the work of associations providing critical peace trainings to actors suspected to be related to terrorism. Similarly, it complicates the work of humanitarian organizations in areas where terrorist actors are active. In the same manner, grant-makers supporting this type of activities are put at risk of criminal liability.
 
"I believe that these restrictions have disproportionate effects on legitimate civil society organizations, some which may even have been unintended by Congress."
 
The rights expert encouraged the Government to urgently review the relevant legal stipulations, mindful that "restrictive measures must be the least intrusive means to achieve the desired objective and be limited to the associations falling within the clearly identified aspects characterizing terrorism only. They must not target all civil society associations".
 
The Special Rapporteur called on the US Government to bring its counter-terrorism legislation and practices in compliance with international human rights law.
 
In the absence of a national human rights institution tasked with monitoring the fulfilment of the State's obligations under international human rights law and standards, the Government should consider allowing embedded Ombudspersons in all federal agencies to ensure that no human rights violations are committed, he said. +