Blog: Business and Human Rights
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October 24, 2016
October 25, 2016
The Importance of Institutional Design in Governing Transnational Corporations
A Talk by Deval Desai, Human Rights Program Research Fellow
Please join us for a brown bag lunch discussion with Human Rights Program Research Fellow and S.J.D. candidate Deval Desai, on regulating transnational corporations. Drawing on his research in northern Uganda and Sierra Leone, Deval will examine the pitfalls of evidence-based approaches to the governance of transnational corporations, recast this governance challenge in terms of institutional design, and consider the lessons that human rights law might offer. Deval is also Fellow-in-Residence at the Institute of Global Law and Policy, and previously worked at the World Bank and UN as a rule of law reform expert in Nigera, Cameroon, Sierra Leone and Uganda.
This event is co-sponsored by the Human Rights Program and the Institute of Global Law and Policy.
October 12, 2016
For Immediate Release
South Africa: Protect Residents’ Rights from Effects of Mining
Government Response to Environmental and Health Threats Falls Short
(Cambridge, MA, October 12, 2016)—South Africa has failed to meet its human rights obligations to address the environmental and health effects of gold mining in and around Johannesburg, the Harvard Law School International Human Rights Clinic (IHRC) said in a new report released today.
The 113-page report, The Cost of Gold, documents the threats posed by water, air, and soil pollution from mining in the West and Central Rand. Acid mine drainage has contaminated water bodies that residents use to irrigate crops, water livestock, wash clothes, and swim. Dust from mine waste dumps has blanketed communities. The government has allowed homes to be built near and sometimes on those toxic and radioactive dumps.
Examining the situation through a human rights lens, the report finds that South Africa has not fully complied with constitutional or international law. The government has not only inadequately mitigated the harm from abandoned and active mines, but it has also offered scant warnings of the risks, performed few scientific studies about the health effects, and rarely engaged with residents on mining matters.
“Gold mining has both endangered and disempowered the people of the West and Central Rand,” said Bonnie Docherty, senior clinical instructor at IHRC and the report’s lead author. “Despite some signs of progress, the government’s response to the crisis has been insufficient and unacceptably slow.”
The report is based on three research trips to the region and more than 200 interviews with community members, government officials, industry representatives, civil society advocates, and scientific and legal experts. It provides an in-depth look at gold mining’s adverse impacts and examines the shortcomings of the government’s reaction.
For example, although acid mine drainage reached the surface of the West Rand in 2002, the government waited 10 years before establishing a plant that could stem its flow. In addition, the government has not ensured the implementation of dust control measures and has left industry to determine how to remove the waste dumps dominating the landscape.
The Cost of Gold calls on South Africa to develop a coordinated and comprehensive program that deals with the range of problems associated with gold mining in the region. While industry and communities have a significant role to play, the report focuses on the responsibility of the government, which is legally obliged to promote human rights.
The government has taken some positive steps to deal the situation in the West and Central Rand. This year, it pledged to improve levels of water treatment by 2020. In 2011, it relocated residents of the Tudor Shaft informal settlement living directly on top of a tailings dam. The government along with industry has also made efforts to increase engagement with communities.
Nevertheless, The Cost of Gold finds that the government’s delayed response and piecemeal approach falls short of South Africa’s duties under human rights law. As a result, the impacts of mining continue to infringe on residents’ rights to health, water, and a healthy environment, as well as rights to receive information and participate in decision making.
“The government should act immediately to address the ongoing threats from gold mining, and it should develop a more complete solution to prevent future harm,” Docherty said. “Only then will South Africa live up to the human rights commitments it made when apartheid ended.”
For more information, please contact:
In Cambridge MA, Bonnie Docherty: email@example.com
September 20, 2016
Posted by Cara Solomon
Now that we’re in the rhythm of the semester, it’s time to introduce some new faces in the International Human Rights Clinic. We’re thrilled to welcome five new clinical advocacy fellows, all accomplished lawyers with different expertise and experiences. They’re leading clinical projects this semester on a range of new topics, from human rights protection in investment treaties to armed conflict and the environment.
In alphabetical order, here they are:
Fola Adeleke is a South African-trained lawyer who specializes in international economic law and human rights, corporate transparency, open government and accountability within the extractives industry. This semester, his projects focus on human rights protection in investment treaties and reconfiguring the licensing process of mining to include more consultation with communities.
Rebecca Agule, an alumna of the Clinic, is an American lawyer who specializes in the impact of conflict and violence upon individuals, communities, and the environment. This semester, her project focuses on armed conflict and the environment, with a focus on victim assistance.
Juan Pablo Calderón-Meza, a former Visiting Fellow with the Human Rights Program, is a Colombian attorney whose practice specializes in international law and human rights advocacy and litigation. This semester, his project focuses on accountability for corporations and executives that facilitated human rights abuses and atrocity crimes.
Yee Htun is the Director of the Myanmar Program for Justice Trust, a legal non-profit that partners with lawyers and activists to strengthen communities fighting for justice and human rights. Born in Myanmar and trained as a lawyer in Canada, Yee specializes in gender justice and working on behalf of refugee and migrant communities. This semester, her project focuses on women advocates in Myanmar.
Salma Waheedi is an attorney who specializes in international human rights law, Islamic law, gender justice, family law, comparative constitutional law, and refugee and asylum law. Born in Bahrain and trained as a lawyer in the U.S., Salma currently holds a joint appointment with Harvard Law School’s Islamic Legal Studies Program, where she focuses on family relations in Islamic jurisprudence. This semester, her project focuses on gender justice under Islam.
We’re so pleased to have the fellows as part of our community this semester. Please swing by at some point to introduce yourself and say hello.
February 10, 2016
Clinic Files Petition for Certiorari in Final Attempt to Hold Two U.S. Corporations Accountable for Supporting Apartheid
Posted by Tyler Giannini and Susan Farbstein
The Clinic and its partners today filed a petition for writ of certiorari with the U.S. Supreme Court in the In re South African Apartheid Litigation suit, asking the Court to clarify the circumstances under which defendants may be held accountable in U.S. courts for human rights violations. The case, which involves the actions of U.S. corporations IBM and Ford, raises questions about whether a defendant’s knowledge is sufficient to establish aiding and abetting liability, or whether specific intent or motive must also be demonstrated. It also concerns how closely a human rights violation must be connected to the United States in order to sue under the Alien Tort Statute (ATS), and whether corporations can be held liable at all under the ATS.
The petition argues that through their actions, and decades-long support for violations associated with apartheid, defendants IBM and Ford purposefully facilitated violations of international law by enabling the “denationalization and violent suppression, including extrajudicial killings, of black South Africans living under the apartheid regime.” According to the petition, “IBM and Ford purposefully designed, sold, and serviced customized technology and vehicles for the South African government that they knew in advance would be used to racially segregate and systematically oppress black South Africans.”
Despite the corporations’ knowledge and deliberate action, in 2015 the Second Circuit concluded that IBM did not aid and abet international law violations because there was no evidence that “IBM’s purpose was to denationalize black South Africans and further the aims of a brutal regime.” In an equally striking 2011 decision, the Fourth Circuit imposed an aiding and abetting standard requiring defendants who supplied mustard gas to Saddam Hussein’s Iraqi regime to not just know but rather intend that it be used against civilians.
The petition argues that, if left to stand, the Second and Fourth Circuits’ rulings will protect U.S.-based aiders and abettors of international law violations from liability. The Second and Fourth Circuits implicitly rejected the standard set at Nuremberg, under which industrialists who knew that Zyklon-B gas would be used to commit genocide, and deliberately decided to sell it to the Nazis, were convicted. Unlike the Second and Fourth Circuits, the Nuremberg courts did not require that the defendants intended their products to be used against civilians, or that they shared the genocidal motives of the Nazis.
As the petition explains, “the Second Circuit’s standard is thus so restrictive that it is now easier to convict individuals of international crimes before the [International Criminal Court] than to find individuals civilly liable under the ATS for the same acts.” In other words, perpetrators convicted of international crimes at Nuremberg would not be civilly liable under the ATS for aiding and abetting the Holocaust.
November 10, 2015
Posted by Susan Farbstein
Twenty years ago today, Ken Saro-Wiwa and the other members of the Ogoni Nine were hanged in Port Haurcourt, Nigeria. Saro-Wiwa was a writer, environmental activist, and outspoken critic of Shell’s destruction of Ogoniland. He accused Shell of waging an ecological war against the Ogoni, co-founding the Movement for the Survival of the Ogoni People (MOSOP) to protect their rights and protest the devastating effects of Shell’s oil exploitation on their land.
In response, Nigeria’s military junta falsely accused him of murder and then created a special tribunal — which violated international due process standards — to prosecute and sentence him to death. In 2009, Shell agreed to pay $15.5 million to settle a case in which it was accused of collaborating with the Nigerian government in Saro-Wiwa’s execution.
On this anniversary, it would be nice to document how much has changed in the Niger Delta over the last two decades — how pollution from oil extraction has been reduced, how Shell has cleaned up past spills, how the Ogoni no longer suffer from poisoned waterways, fishing areas, and surface soil. Unfortunately that article can’t be written, because the devastation continues.
Although Shell was forced out of Ogoniland in 1993, it remains responsible for leakages, gas flaring, and oil blow-outs from approximately 5,000 kilometers of its pipelines that still run through the area. Hundreds of spills occur annually across this old and poorly maintained pipeline network, ruining drinking wells, agricultural fields, forests, and fisheries that the Ogoni depend on for their food and their livelihood. Shell acknowledges spills leading to more than 55 million liters of oil leaked in the Delta in recent years — and these numbers likely understate the true scale of the damage. (By comparison, on average there were 10 spills annually across the whole of Europe from 1971 to 2011; the infamous 1989 Exxon Valdez spill in Alaska accounted for approximately 41 million liters lost.)
The most comprehensive study on the impact of oil pollution in Niger Delta, produced by the United Nations Environment Programme (UNEP) in 2011, documented appalling levels of ongoing contamination. The UNEP also found that Shell had failed to properly clean up spills at more than 60 locations across Ogoniland. In response, Shell assured its critics that, since 2011, it has addressed the pollution identified in the UNEP report.
But a recent study by Amnesty International (AI) and the Centre for the Environment, Human Rights and Development (CEHRD) flatly contradicts Shell’s claims. In locations where Shell asserts it has cleaned up and remediated past spills — and where Nigerian government regulators have certified sites as clean — AI and CEHRD found water-logged areas with an oily sheen, land that was black and oil-encrusted, and soil that was soaked and visibly contaminated with crude. They conclude that Shell has not improved its methodology for addressing oil spills and still fails to adequately clean up its pollution.
To truly commemorate Saro-Wiwa, the struggle for social and environmental justice and a clean Niger Delta must continue. Nigerian President Muhammadu Buhari’s recent pledge to fast-track implementation of the UNEP’s recommendations is commendable but insufficient. Shell must improve its approach to oil spill remediation, properly clean up the Delta, and compensate communities for past harms. And the Nigerian government must create an effective oversight, regulation, and accountability process for the oil industry, one that addresses the underlying causes of pollution in the Delta, including the maintenance of oil infrastructure and a re-examination of the spill investigation process.
Shell’s unapologetic attitude and unchanged behavior are an insult to human rights and all that Ken Saro-Wiwa represents. The Nigerian state and Shell might have hoped that killing Saro-Wiwa and his colleagues would end the struggle. We owe it to him to prove them wrong.
Susan and a team of clinical students participated in litigating Wiwa v. Shell, which charged Shell with complicity in the killing of Ken Saro-Wiwa and other non-violent Nigerian activists, and successfully settled in 2009.
April 10, 2015
Posted by Cara Solomon
Earlier this week, Australian radio interviewed Tyler Giannini about a significant development in the world of business and human rights: one of the world’s largest mining companies, Barrick Gold, recently settled claims with a group of women in Papua New Guinea who were raped by the company’s security guards. The settlement, negotiated by EarthRights International, came as the women were preparing to file suit.
The International Human Rights Clinic has been investigating abuses around the Porgera mine for several years, along with NYU’s Global Justice Clinic and Columbia’s Human Rights Clinic. Reports of rape around the mine in the highlands of Papua New Guinea date back to at least 2006, but the company did not acknowledge them for years.
In 2012, the company set up a complaint mechanism, which Tyler describes in the interview as inadequate. Initially, the company was preparing to offer the women who stepped forward a compensation package of used clothing and chickens. At the urging of advocates, including the Clinic, the company later revised its offer, and more than 100 women accepted the settlement.
EarthRights represented a group that did not agree to settle through the company’s complaint mechanism. At least one woman described the original settlement offers as “offensive.”
“If you have settlements that aren’t really getting to justice, the discourse with the community is not really healed, and you don’t get real reconciliation,” Tyler said in the interview. “That’s not good for the company, that’s not good for the survivors, and I think that’s one of the lessons that needs to be taken away.”
January 29, 2015
Posted by Tyler Giannini and Susan Farbstein
The Clinic and our partners filed an opening brief yesterday in the Second Circuit in an appeal in In re South African Apartheid Litigation. The case, which is being litigated under the Alien Tort Statute, seeks relief against IBM and Ford for assisting and supporting human rights violations committed in apartheid South Africa.
Back in August, the district court dismissed the case when the court denied Plaintiffs’ motion for leave to file an amended complaint against these two U.S. Defendants. The lower court reasoned that the claims did not sufficiently “touch and concern” the territory of the United States, as required by the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum, which established a presumption against extraterritoriality in ATS cases.
On appeal, Plaintiffs contend that the lower court failed to undertake the necessary inquiry into the U.S. Defendants’ own conduct in the United States, and instead focused only on actions that took place in South Africa. The proposed amended complaint contains detailed new allegations about how, from the United States, both Defendant corporations aided and abetted the South African security forces and government to commit human rights violations over several decades. Defendants will file their opposition brief in the coming months.
Clinical students Ariel Nelson, J.D. ’15, Brian Klosterboer, J.D. ’16, and Peter Stavros, J.D. ’16, contributed research and drafting for the brief.
September 17, 2014
Posted by Lily Axelrod, JD '15
One January afternoon in 2012, two hundred men and women gathered at the Captain Morgan Bar in the sunny, Mexican coastal town of Topolobampo, Sinaloa. Their spirits were strong; recruiters had arrived to sign up workers for temporary H-2 visas to the United States. In a region where unemployment is high and the minimum wage is less than $5 a day, the recruiters brought hope. Applicants handed over deposits of several hundred dollars, representing years of savings or serious debt.
Weeks went by, and then months, as recruiters promised the Sinaloans that the visas were “almost ready.” But there were no jobs, and no H-2 visas. By April, it became clear: hundreds of applicants had been defrauded.
This summer, I had the opportunity to support the Sinaloan workers as a fellow with Proyecto de Derechos Económicos, Sociales y Culturales (ProDESC), a human rights organization based in Mexico City. Having lived in Mexico and studied social movements there, I was drawn to ProDESC’s model, which balances a broad international vision with a focus on meaningful participation and leadership from local, marginalized communities. I contributed this summer to the organization’s Transnational Justice for Migrant Workers project, which seeks to promote humane, legal migration by protecting migrant workers’ human rights.
My work focused specifically on the H-2 temporary worker visa program, one of the few avenues for Mexicans to work legally in the United States without advanced degrees or immediate family members with status. ProDESC has been tackling abuses related to the program since 2007. Due to fear of reporting and lack of oversight, it is impossible to know how many applicants were promised visas and never received them, but ProDESC believes the problem is widespread. Even when job offers are legitimate, workers often go into debt to pay illegal “recruitment fees,” and fear blacklisting or violent retaliation if they speak up about their rights.
For years, both the Mexican and American governments turned a blind eye to these abuses, leaving workers vulnerable to exploitation, human trafficking, and forced labor. But ProDESC and the Sinaloan workers have been collaborating to change the status quo. In 2013, with support from ProDESC’s community organizers and attorneys, the workers formed a coalition and brought a groundbreaking collective criminal complaint against the fraudulent recruiter operating in Sinaloa. That coalition, in turn, strengthened ProDESC’s domestic and international policy advocacy to prevent abuse in the H-2 visa program overall.
Together, their activism captured the attention of both the Mexican government, which recently issued new regulations targeting recruiters, and the U.S. Departments of Labor and State, which have committed to cooperate with their Mexican counterparts and with NGOs to educate migrant workers about their rights. Continue Reading…
July 2, 2014
Fourth Circuit’s Post-Kiobel Ruling Revives ATS Claims Against U.S. Corporation for Violations Committed Abroad
Posted by Tyler Giannini and Susan Farbstein
On Monday, the Fourth Circuit Court of Appeals ruled that the presumption against extraterritoriality in Alien Tort Statute (ATS) cases, established by the April 2013 U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum, Co., does not bar claims against a U.S. contractor for torture and mistreatment of foreign nationals in Iraq.
The Al Shimari v. CACI ruling is a major decision in the ongoing battle over the meaning and interpretation of Kiobel. Kiobel held that there is a presumption against extraterritoriality in ATS cases unless the “claims touch and concern the territory of the United States with sufficient force,” in which case the presumption can be displaced. In Kiobel, the Supreme Court found the “mere corporate presence” of the defendant in the United States did not overcome the presumption.
The Fourth Circuit compared the factual circumstances in Kiobel with those in Al Shimari, and concluded that the corporate defendant had a much more significant connection to the United States than mere presence. In so ruling, it became the first appellate court to hold that the plaintiffs’ claims sufficiently “touch and concern” U.S. territory to displace the presumption.
In the wake of the Kiobel decision, lower courts across the country have wrestled with how to interpret the new “touch and concern” standard given the limited guidance provided by the Supreme Court. Some courts have avoided the complexities of the Kiobel presumption altogether. However, the Fourth Circuit embraced the challenge:
Although the “touch and concern” language in Kiobel may be explained in greater detail in future Supreme Court decisions, we conclude that this language provides current guidance to federal courts when ATS claims involve substantial ties to United States territory. We have such a case before us now, and we cannot decline to consider the Supreme Court’s guidance simply because it does not state a precise formula for our analysis. Continue Reading…
April 8, 2014
“The Future of Corporate Impact Litigation After Chevron”
A Discussion with Steven Donziger
12:00 – 1:00 p.m.
Please join us for a discussion with Steven Donziger, JD ’91, a New York based lawyer who has advised indigenous and farmer communities for two decades in their struggle to hold Chevron accountable for oil contamination in the Amazon. In 2013, Ecuador’s Supreme Court affirmed a trial court ruling ordering Chevron to pay $9.5 billion in damages. Chevron fought back, recently securing a controversial ruling from a U.S. federal judge in a non-jury trial that Ecuador’s entire judicial system is unworthy of respect and that the case was marred by fraud. That case is currently under appeal to the Second Circuit while enforcement actions based on the Ecuador judgment continue against Chevron in Canada, Brazil, and Argentina. The case raises profound questions that touch on international law, comity, human rights, indigenous rights, freedom of expression, professional ethics, and the limits of litigating against corporate wrongdoers.
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