Written by: Stephen Robbins
Researched by: Amanda Husted
Edited by: Daniel Kwak
Managing Editor: Jennifer Hill
This is Part I of a two-part focus on Haiti. In Part I, Stephen Robbins discusses issues from the state of affairs in Haiti before the earthquake on January 12, 2010, to international and domestic reform, to U.S. – Haiti relations, and finishes by discussing the foundation that needs to be laid for a “fresh start” to be realized. Part II will be posted on theLegality.com next week.
Following the earthquake in Haiti, Speaker of the House Nancy Pelosi and various members of the media labeled the natural disaster an opportunity for a “fresh start.” The idea that the earthquake has brought anything but tragedy would be lost, of course, on your average Haitian. The quagmire of corruption and human rights violations that plagued Haiti were not somehow swept away in a baptism by earthquake on January 12th. Indeed, such problems continue to exist, only with a thick and new layer of destructive complexity piled on top.
This is not the first time that Haiti has momentarily captured the attention of the international community and elicited promises of a “fresh start.” As rebuilding efforts continue, how can we be sure that there will be anything fresh about our approach? Tents will be delivered, shelter constructed, and millions of dollars donated, but what will be done to address the issues that made Haiti a daily haven for tragedy, even before the earthquake? As President Roosevelt once stated, there is nothing mysterious about the foundations of a healthy and strong democracy. These foundations are equality, social and economic opportunity, and human rights. If the long-term situation in Haiti is to ever improve, the protection of human rights must serve as the foundation and constant measuring stick for every rebuilding effort, every dollar spent, and every decision made. While there are laws in place that purport to offer such protection, they often lack the kind of enforcement necessary to effect serious change.
Before the Quake
The problems Haiti faced before the earthquake are overwhelming and include the presence of violent gangs, a corrupt National Police force that participated in kidnappings and murder, grossly inadequate prisons, a broken judicial system, child trafficking, a total lack of worker’s rights, and widespread political corruption, to name a few. Immediately following the earthquake there were questions amid the chaos as to the whereabouts of the Haitian government, a question that may have well been asked days, even years earlier.
The Need for Governmental Reform
Despite the government’s complete ineptitude, Secretary of State Hillary Clinton rushed to Haiti to assure the victims, and the rest of the world, that the Haitian government was in charge. The Haitian government must become an aggressive advocate and protector of the rights of its people. Haitian law provides for many human rights protections, protections that have been ignored for years in Haiti. The Haitian Constitution incorporates by reference the Universal Declaration of Human Rights, which provides protections against things like arbitrary arrests and incompetent tribunals. The Declaration also assures just and favorable working conditions, social and economic rights, and even the right to a standard of living adequate for the health and well-being of each worker and of his family, including food, clothing, housing, and medical care to name a few. However, not even the most basic of these guarantees have been effectively protected in Haiti.
The first line of defense must come from the Haitian government. It is not enough to point to unenforced laws. For example, the government itself admitted in 2008 that forty percent of children never attended school, and of those that do, only fifteen percent would graduate from a secondary school, despite constitutional guarantees of free and compulsory education. Many children are forced to work at an early age. Child trafficking and indentured servitude are rampant, and the Haitian government lacks the capacity, the resources, and the will to adequately protect or even advocate on behalf of their own people.
In 2009 the Haitian legislature voted to increase the minimum wage to about $4.90 USD a day. While this amount may seem meager, it represents a substantial pay increase for the average Haitian, millions of whom live on less than $2 dollars a day. Unfortunately, Haitian President Rene Preval was quick to bend under pressure from the private sector, and refused to sign the measure into law. Peaceful student demonstrators who protested this lack of presidential courage in the streets of Port-au-Prince were greeted with aggressive repression not only from Haitian Police, but from UN forces.
International Law Reform
A global disregard for international human rights law also played a vital role in developing Haiti’s precarious pre-earthquake condition. Rather than supporting a wage increase for Haitian factory workers, former President Bill Clinton and representatives from the UN have spent the last several years using the cheap Haitian labor as a recruiting tool to bring even more factories to the island nation. In an October conference Clinton was quoted as saying, “The rich will get richer, but there will be a much, much bigger middle class, with poor people pouring into it at a rapid rate.”
Unfortunately this model depends on a “middle class” that earns barely $3 dollars a day, while simultaneously increasing the concentration of wealth and power in the upper class. This model, which has already been tested and failed, does not present a long-term solution in Haiti. Instead, it reveals an integral part of the problem. An economy that compromises the legally protected rights of the masses in order to serve the interests of a privileged elite is well poised to perpetuate the kinds of crime and poverty that plagued Haiti before the earthquake.
Much like Haitian law, there are international laws that provide for all the necessary human rights protections needed in Haiti, but these laws are not yet accompanied by any serious enforcement mechanism. The UN International Covenant on Economic Social and Cultural Rights (ICESCR), for example, requires party states to take steps to improve, in part, labor conditions and job creation. The obligations include providing “technical and vocational guidance and training” and the development of policies and techniques to achieve steady economic, social and cultural development. The United States has signed, but not ratified the ICESCR, while Haiti has yet to sign the Covenant.
While the ICESCR may not be binding on either the United States or Haiti, other international law does call for the protection of certain human rights. The Charter of the United Nations declares that the mission of the UN is in part to protect human rights, and equality of “nations large and small.”
In addition the UN Convention on the Rights of the Child is another tool that, if properly enforced, could help promote progress and development in Haiti. The convention provides in part that detention or imprisonment of a child will be used only as a last resort, and only for the shortest appropriate time. These and other guarantees go virtually unrecognized in Haiti where, at the end of 2008, nearly 88 percent of their 316 incarcerated minors were in prolonged detention. Many were detained without charges and without representation. Educational rights and guarantees provided in the Convention on the Rights of the Child will also be vital to the development in Haiti, where a high rate of illiteracy and unskilled laborers have gone hand in hand for years.
The development and protection of rights generally come in two phases. First comes the formal recognition of a right, followed in most cases by some kind of affirmative action to enforce that right. The desegregation of schools in the United States, for example, started with Brown v. Board of Education, where the Supreme Court formally recognized the harmful effects of segregation and the right to equal education. Later came a series of court decisions and affirmative action programs to ensure that the right to equal education was enforced.
The UN has taken the first step by recognizing the existence of certain human rights, but have yet to find an effective way to affirmatively enforce these rights. As the law currently stands, it is unclear that the recognition of these rights actually imposes any kind of obligation on party nations or the UN to help in the protection of human rights. Even if such an obligation was found, it seems that the UN lacks the capacity, like the Haitian government, to enforce the very laws they seek to uphold.
The United States Congress passed the HOPE II Act in May of 2008, which extends favorable trade benefits to Haiti in order to encourage foreign investment in the textile industry. The creation of cheap labor jobs has been touted by many as the key to Haiti’s poverty exodus, despite the fact that this model was followed in the 1970’s and 80’s with no real long-term benefits to Haiti or its people. This is yet another example of stale ideas being promoted as part of a fresh start.
While the Act may be designed to promote foreign investment in Haiti, it also contains several human rights provisions, namely that the benefits will not be available unless Haiti is “making continual progress toward establishing” systems to fight corruption and protect worker’s rights, including a prohibition of child labor, promotion of acceptable working conditions, and minimum wages. These provisions give the President considerable power to lean on the Haitian government to protect human rights, although such power is unlikely to be exercised. Much like the ICESCR, the Hope Act is sufficiently vague as to not require any real action by the Haitian or United States government. Rather than guaranteeing the right to collective bargaining, for example, the HOPE Act merely suggests that the Haitian government make progress towards protecting worker’s rights.
What Will Be Their Foundation?
There are always those who look to profit in the wake of a disaster, and many look to take advantage of the chaos and desperation. Private entities and foreign investors are often able to curtail human rights obligations either because of lack of enforcement, or weak statutory language that imposes no real duty in the first place. As reconstruction begins and Haiti is divvied up among foreign investors and private contractors, who will be there to make sure it is not done at the expense of the Haitian people? Who will make sure that Haitian workers are paid their legally guaranteed fair wages , or that the Haitians will be doing the work at all? These are the questions that must constantly be monitored throughout the rebuilding process, because if Haiti is not rebuilt upon a foundation of human rights, we risk rebuilding the Haiti of January 12th, 2010.