Policy Brief on the Judicial Nominations in Guatemala – Pockets of Resistance in a Closing Space

Jaime Chávez Alor, Latin America Policy Manager at the Cyrus R. Vance Center for International Justice, and Lauren McIntosh, Legal Officer at the International Legal Assistance Consortium, have co-authored a policy brief on the ongoing judicial nominations in Guatemala.

Guatemala’s Congress was slated to elect an entirely new judiciary in mid-October of this year. The judicial elections are occurring in the shadows of the United Nations-backed International Commission against Impunity in Guatemala (CICIG) being forced to leave and in the middle of rapid rule of law backsliding. Nevertheless, Guatemala’s Constitutional Court has pushed back and proven to be a “pocket of resistance” in a closing space for civil society and the justice sector. The brief examines the judicial nominations process and makes recommendations for more fair and impartial judicial nominations and elections.

Read the full policy brief here.

ILAC is an international organisation based in Sweden that gathers wide-ranging legal expertise and competencies from around the world to help rebuild justice systems in countries that are in conflict, post conflict, or in transition toward peace and democracy.

Humanitarian Organizations Should Reject Airbnb’s Occupation-Donations

Airbnb, the global short-term rental platform, has announced a new policy under which it will donate the profits it earns from listings in territories under foreign occupation, with the understanding that business operations in such territories contribute to ongoing human rights violations. This policy contravenes Airbnb’s legal obligations under the UN business and human rights framework, and is unprecedented in the history of corporate donations in the United States. Organizations committed to human rights should reject these donations.

In November 2018, Airbnb announced a new framework for assessing whether its “listings in occupied territories . . . contribut[e] to existing human suffering” and/or are connected to territorial disputes. Airbnb would remove listings with these negative human rights impacts from its platform, the company said, starting with properties in Israeli settlements in the West Bank.

Months later, in the course of settling several lawsuits challenging the new policy before the company’s upcoming IPO, Airbnb reversed its decision to delist settlement properties. Under a modified policy, the company would preserve the listings—as well as rentals in South Ossetia, Abkhazia, and other occupied and contested areas around the world—but would donate the proceeds of those problematic listings:

The company will rely upon our previously identified framework to evaluate these areas. If Airbnb determines [our business activity is] central to ongoing tensions, we will adopt the […] approach of allowing listings and donating Airbnb’s profits generated by Airbnb host activity in the region to non-profit organizations dedicated to humanitarian aid that serve people in different parts of the world.

In other words, Airbnb plans to continue its rights-violating activity but donate the proceeds. The extent to which this policy violates human rights law is particularly striking in the context of the Occupied Palestinian Territories.

Rights violations are not a function of Airbnb’s profits; they are a function of its activity.

Under the UN Guiding Principles on Business and Human Rights (GPBHR), organizations including the United Nations, the Eiris Foundation (which has produced a helpful guide for companies operating in occupied territories), and Human Rights Watch (HRW) have advocated that companies end all operations in places like Israeli settlements to avoid contributing to ongoing human rights violations.

The GPBHR do not permit any business operations in Israeli West Bank settlements. The UN High Commissioner for Human Rights has found that “[b]usinesses play a central role in furthering the establishment, maintenance and expansion of Israeli settlements,” noting that “violations of human rights associated with the settlements are pervasive and devastating, reaching every facet of Palestinian life.” According to HRW, “any adequate due diligence would show that business activities taking place in or in contract with Israeli settlements or settlement businesses contribute to rights abuses, and that businesses cannot mitigate or avoid contributing to these abuses so long as they engage in such activities.”

Even if Airbnb were to operate at a loss in the occupied territories, its presence facilitating property rentals on lands that are illegally held would still contribute to rights abuses. It is the service Airbnb offers, not any profit the company earns from that service, that supports Israel’s settlement enterprise, its illegal occupation, and the attendant violations of Palestinians’ rights.

Airbnb’s policy is unprecedented in the history of corporate donations in the United States.

In three types of exceptional situations—during crises, to counteract greenhouse gas emissions, and when required to pay for past damage—companies have donated profits associated with harmful activity. Airbnb’s new policy is unprecedented in that it imagines counteracting ongoing harmful activity. Persistent activity in occupied territory is not like any of these exceptional circumstances in which forfeiting profits relieves a company of legal liability, earns reputational benefits, or justifies a temporarily harmful course of conduct.

Donations of profits made in occupied territory (“occupation-donations”) are not like donations of profits generated during emergencies and natural disasters. Airbnb donates profits and facilitates individual private donations after major storms, and Uber caps surge pricing and donates its surge fare commissions during crises to avoid profiting from situations of emergency and natural disaster. By doing so these companies provide needed services to communities in crisis, taking temporary measures so as not to benefit from others’ misfortune. Airbnb cannot analogize occupation-donations to this approach: its business in occupied territories is not temporary, and does not provide an emergency service. Rather, its business in Israeli settlements sustains a crisis situation by contributing to ongoing, devastating human rights abuses.

Occupation-donations are not like environmental offsets. Companies sometimes purchase carbon offsets to counteract the effect of their greenhouse gas emissions. Offsets are meant to balance the global emissions total by supporting projects that capture carbon, and to further a global transition toward renewable energy resources. Offering occupation-donations to unspecified “non-profit organizations dedicated to humanitarian aid that serve people in different parts of the world” is not analogous to carbon offsets. A better analogy would be a clothing company operating a sweatshop and promising to donate proceeds linked to the sweatshop’s low labor costs to global humanitarian causes. The global balance of human rights is not like the global balance of carbon emissions. Airbnb’s business in occupied territories cannot be offset by donations.

Occupation-donations are not like returned profits or damages paid for past harm. Many companies have returned fees or profits or have paid compensation as the result of public pressure or legal or regulatory action to address harm caused by their prior (discontinued) business practices. Courts have entered judgments for billions of dollars against oil companies like BP and Exxon after major spills. The consulting firm McKinsey & Company has returned fees following unseemly business practices in South Africa and insufficient disclosures in recent bankruptcy work in the United States. Airbnb’s business in occupied territories, however, is ongoing, as are the contributions to human suffering it admits to furthering in those regions. Airbnb cannot wash its hands while persisting in dirtying them.

Emergencies and natural disasters, offsets supporting the transition to renewable energy, and compensation for past wrongdoing each relate to harm and adverse impacts that are bounded in time. Because Airbnb’s occupation-donations are unprecedented and because they represent, by the company’s own assessment, complicity in ongoing rights abuses, humanitarian organizations should reject them. Airbnb cannot cloak itself in one of these models of corporate beneficence to justify ongoing contributions to human rights violations as indefinite as the Israeli occupation itself. While Airbnb continues to operate in Israeli settlements in the West Bank, and in other occupied territories, humanitarian organizations should refuse the company’s donations.

Introducing Amanda McCaffrey

It is our great pleasure to introduce our new IntLawGrrls contributor Amanda McCaffrey.

Amanda McCaffrey is a JD candidate at Stanford Law School. She has interned for the trial team in the Office of the Prosecutor at the Special Tribunal for Lebanon, and works as a student attorney in Stanford’s International Human Rights and Conflict Resolution Clinic. Before law school, she worked as a research assistant and a paralegal on litigation before the International Court of Justice and federal and state courts in California.

At Stanford, she has held leadership positions in the International Law Society, the Stanford Human Rights Law Association, the International Refugee Assistance Project, the Afghanistan Legal Education Project, and the Stanford Prisoner Advocacy and Resources Coalition. Her interests and research in law school center on international conflict resolution and post-conflict justice and reconstruction.

Amanda holds an MFA in creative writing from New York University and a BA in anthropology from the University of California at Berkeley. Her writing has appeared in Just Security, Jewish Currents, Stanford’s Leland Quarterly, the Stanford Daily, and Tin House Online.

Heartfelt welcome!

Go On! Conference on the Future of Space Governance at the University of Georgia School of Law

Go On! makes note of interesting conferences, lectures, and similar events.

The Dean Rusk International Law Center and the Georgia Journal of International and Comparative Law at the University of Georgia School of Law will host a daylong conference to explore the developments concerning The Future of Space Governance on Monday, October 28, 2019, at the law school’s Athens campus.

This conference will address emerging questions of outer space governance and seeks to understand the perspective and concerns of classic space powers, new entrants, non-space faring nations, and international organizations, as well as civilian space agencies, national militaries, and commercial actors.

Registration is required. For more information, click here.

International Law Weekend 2019

From October 10-12, 2019, the American Branch of the International Law Association
will convene its annual International Law Weekend (ILW) conference in New York City.
The theme of ILW 2019 is The Resilience of International Law.

ILW 2019 begins Thursday evening, October 10, 2019, at the New York City Bar
Association (42 W. 44th Street) with the Opening Plenary Panel. Moderated by ABILA
President Leila Sadat, speakers include H.E. Judge Kimberly Prost (International
Criminal Court), Mr. Miguel de Serpa Soares (U.N. Under-Secretary-General for Legal
Affairs), and Dr. Christopher Ward SC (President of the International Law
Association). A reception sponsored by Debevoise & Plimpton immediately follows the
Plenary Panel. The conference continues Friday and Saturday, October 11-12, 2019, at Fordham University School of Law (150 West 62nd Street) and features 35 panels on a range of topics. Keynote speakers include Professor William Burke-White (Director of Perry World House, University of Pennsylvania Law School ) and Ambassador Stephen Rapp (Former U.S. Ambassador-at-Large for War Crimes Issues). Multiple panels are
designated for continuing legal education (CLE) credit.

ILW 2019 presents an opportunity for policymakers, practitioners, academics, and
students of international law to take stock of the recent successes and failures of
international law while reaffirming its resilience to tackle future challenges. ILW 2019
seeks to answer whether its theme—The Resilience of International Law—is a question
or an affirmation.
Registration is required to attend International Law Weekend. ABILA offers free
admission to students and charges a nominal fee to others thanks to the generous support of our sponsors. For more information or to register, visit the event website at http://www.ilaamericanbranch.org/ilw.

Rebuilding the master’s house instead of repairing the cracks: why “diversity and inclusion” in the digital rights field is not enough

Paul Sableman, CC BY 2.0

Silicon Valley is not the only sector with a “white guy” problem: civil society struggles with this as well. Oddly, it wasn’t until I looked at the group photo taken at the Digital Freedom Fund’s first strategy meeting that I noticed it: everyone in the photo except for me was white. I had just founded a new organisation supporting strategic litigation on digital rights in Europe and this had been our first field-wide strategic meeting, bringing together 32 key organisations working on this issue in the region. This was in 2018. In 2019, the number of participants had increased to 48, but the picture in the group photo still was pretty pale, with the team of my organisation accounting for 50% of the 4 exceptions to that colour palet. And while gender representation overall seemed fairly balanced, and there was a diverse range of nationalities present, some voices were noticeably absent from the room. For example, the overall impression of participants was that there was no one with a physical disability attending.* It was clear: something needed to change.

In all fairness, the participants themselves had clocked this as well –– the issue of decolonising the digital rights field had significant traction in the conversations taking place in the course of those two days in February. I have been trying to find good statistics on what is popularly referred to as “diversity and inclusion” (and sometimes as “diversity, equity and inclusion”; I have fallen into that trap myself in the past when speaking about technology’s ability to amplify society’s power structures), both in the human rights field more widely and the digital rights field specifically, but failed. Perhaps I was not looking in the right places; if so, please point me in the right direction. The situation is such, however, that one hardly needs statistics to conclude that something is seriously amiss in digital rights land. A look around just about any digital rights meeting in Europe will clearly demonstrate the dominance of white privilege, as does a scroll through the staff sections of digital rights organisations’ webpages. Admittedly, this is hardly a scientific method, but sometimes we need to call it as we see it. 

This is an image many of us are used to, and have internalised to such an extent that I, too, as a person who does not fit that picture, took some time to wake up to it. But it clearly does not reflect the composition of our societies. What this leaves us with, is a watchdog that inevitably will have too many blind spots to properly serve its function for all the communities it is supposed to look out for. To change that, focusing on “diversity and inclusion” is not enough. Rather than working on (token) representation, we need an intersectional approach that is ready to meet the challenges and threats to human rights in an increasingly digitising society. Challenges and threats that often disproportionately affect groups that are marginalised. Marginalisation is not a state of being, it is something that is done to others by those in power. Therefore, we need to change the field, its systems and its power structures. In other words: we need a decolonising process for the field and its power structures rather than a solution focused on “including” those with disabilities, from minority or indigenous groups, and the LGBTQI+ community in the existing ecosystem.

How do we do this? I don’t know. And I probably will never have a definitive answer to that question. What I do know, is that the solution will not likely come from the digital rights field alone. It is perhaps trite to refer to Audre Lorde’s statement on how “the master’s tools will never dismantle the master’s house” in this context, but if the current field had the answers and the willingness to deploy them, the field would look very different. Lorde’s words also have a lot to offer as a perspective on what we might gain from a decolonising process as opposed to “diversity and inclusion”. While the following quote focuses on the shortcomings of white feminism, it is a useful aide in helping us imagine what strengths a decolonised digital rights field might represent:    

“Advocating the mere tolerance of difference between women is the grossest reformism. It is a total denial of the creative function of difference in our lives. Difference must be not merely tolerated, but seen as a fund of necessary polarities between which our creativity can spark like a dialectic. … Only within that interdependency of different strengths, acknowledged and equal, can the power to seek new ways of being in the world generate, as well as the courage and sustenance to act where there are no charters.”

The task of re-imagining and then rebuilding a new house for the digital rights field is clearly enormous. As digital rights are human rights and permeate all aspects of society, the field does not exist in isolation. Therefore, its issues cannot be solved in isolation either –– there are many moving parts, many of which will be beyond our reach as an organisation to tackle alone (and not just because DFF’s current geographical remit is Europe). But we need to start somewhere, and we need to get the process started with urgency. If we begin working within our sphere of influence and encourage others to do the same in other spaces, to join or to complement efforts, together we might just get very far.

My hope is that, in this process, we can learn from and build on the knowledge of others who have gone before us. Calls to decolonise the academic curriculum in the United Kingdom are becoming increasingly louder, but are being met with resistance. Are there examples of settings in which a decolonising process has been successfully completed? In South Africa, the need to move away from the “able-bodied, hetero-normative, white” standard in the public interest legal services sector is referred to as “transformation“. And efforts to “radically re-imagine and re-design the internet” from Whose Knowledge center the knowledge of marginalised communities on the internet, looking at not only online resources such as Wikipedia, but also digital infrastructure, privacy, surveillance and security. What are the lessons we can learn from those efforts and processes?

This is an open invitation to join us on this journey. Be our critical friend: share your views, critiques and ideas with us. What are successful examples of decolonising processes in other fields that the digital rights field could draw on? What does a decolonised digital rights field look like and what can it achieve? Who will be crucial allies in having this succeed? How can we ensure that those currently being marginalised lead in this effort? Share your views, help us think about this better, so we might start working on a solution that can catalyse structural change.

This post was cross-posted from the Digital Freedom Fund blog

* As observation was the method used for this determination, it is difficult to comment on representation that is less visible than other categories such as religion, socioeconomic background, sexual orientation, etc.