Service on UN Sustainable Development (Aug16/01)
4 August 2016
Third World Network
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
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
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
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
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
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
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
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?,"
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
The Special Rapporteur called on the US Government to bring its counter-terrorism
legislation and practices in compliance with international human rights
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. +