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March 28, 2013
Recap of International Law Journal Panel: Environmental, Human Rights, and Development Issues in International Investment Arbitration
Posted by Cara Solomon
A few weeks ago, as part of the 2013 Harvard International Law Journal symposium, Tyler moderated a panel entitled “Addressing Environmental, Human Rights and Development Issues in International Investment Arbitration.” Cecilia Vogel wrote a recap of the panel, which ILJ recently posted on its site. Thanks to ILJ for letting us repost it here:
ILJ’s 2013 symposium wrapped up with a lively discussion about the role of environmental and human rights in international investment arbitration. Tyler Giannini, Clinical Professor of Law for the Human Rights Program and International Human Rights Clinic at HLS, moderated the panel in the form of a question and answer session. The panelists, hailing from across the globe and with experience as counsel, arbitrators, advisers, and academics, represented a variety of international viewpoints on the topic.
Professor Giannini began the conversation by asking panelists to address how the international investment regime relates to or differs from the human rights regime. Professor Joost Pauwelyn explained that protections for international investors and human rights do share a common root, although investment protection began first. Both regimes seek the protection of rights against abuse. However, Professor Pauwelyn drew the distinction that the investment regime’s purpose—to facilitate investment—is more utilitarian. The investment regime only protects certain classes of people, i.e. alien investors of certain nationalities, while we are all born into human rights. Unlike the rights of international investors, human rights are enforced in a court system and their enforcement internationally first requires exhaustion of domestic remedies. Professor Pauwelyn also asked: With an eye to determining who can waive investor rights, are investor rights individual rights, like human rights, or are they derivative rights from the state? Finally, Professor Pauwelyn expressed his concern that small investors cannot adequately access protection in the costly investment regime and that this may negatively impact the system’s credibility.
Panelists next addressed the role of human rights and environmental law in the current investment regime. Professor Attila Tanzi explained that respondent states have been reluctant to raise environmental law and human rights arguments out of the concern that they might enhance the position of potential claimants before domestic courts. According to Professor Tanzi, the current trend in international investment arbitrations with respect to human rights and environmental law is “compatibility in separation,” meaning it is the obligation of the state to carry out both. Professor Tanzi hopes that investment arbitrations can move toward “compatibility in integration.” Mr. Gómez-Pinzón responded that, as an arbitrator, he would apply environmental or human rights law if it was applicable to the case. On the other hand, professor Boisson de Chazournes called for political elites negotiating investment treaties to take a greater role in incorporating human rights and environmental law because arbitrators have little opportunity to maneuver to include those areas of law in the current regime. Professor Pauwelyn responded that avenues to incorporate more human rights and environmental law in the investment regime already exist, such as Article 42 of the ICSID Convention (referring “to such rules of international law as may be applicable”) but that arbitrators need greater expertise in this area of law.
Addressing the role of soft law human rights and environmental law instruments in foreign private investment, Professor Boisson de Chazournes questioned the legal standing and role of these instruments in the interpretation of customary international law, given they do not reflect state practice but private corporate practice. She suggested that they can perhaps be complementary tools to assist filling in international law gaps. Professor Pauwelyn looked to arbitrators current references to the International Bar Association guidelines as a potential model for the incorporation of human rights and environmental law soft law instruments into the investment regime.
Finally, commenting on the future of investment law’s relationship to environmental and human rights, Mr. Gómez-Pinzón predicted that the evolution would be slow and cautious, with the lead taken by states negotiating bilateral investment treaties. There has already been a greater tendency for transparency and amicus participation in arbitrations, but private companies will likely resist increasing transparency. Judge Brower, the symposium’s keynote speaker, with the last word, cautioned the panel against engaging in a theoretical discussion of a problem that no one has found to yet exist. Noting that the international investment regime has been evolving for years, he encouraged adopting a long view of the system and emphasized that if anything, loss of investor confidence, would be the ruin of the system.
March 24, 2013
Posted by Tyler Giannini
Earlier this month, the recently appointed UN Independent Expert on Human Rights and the Environment, John Knox, presented his preliminary report to the Human Rights Council. For those of us who have worked in the field of human rights and the environment since the early 1990s, the fact that this report is even being presented to the Council is a major advance.
In the early 1990s, the mention of a link between human rights and the environment raised eyebrows in many circles. Today, that’s no longer the case. Instead, the international community and the Independent Expert have moved on to other questions, such as: what is the precise legal relationship between human rights and the environment? In his comments before the Human Rights Council, Knox described an urgent need for such clarification, saying it was necessary “for States and others to better understand what those obligations require and ensure that they are fully met, at every level from the local to the global.”
Within the arena of human rights and the environment, we have seen specific issues gain major traction over the past two decades. Take the right to water. A recent seminar organized with Prof. Mathias Risse of Harvard Kennedy School and Sharmila Murthy of the Carr Center for Human Rights Policy shows just how many disciplines (law, philosophy, urban planning, geography, engineering, public health and economics) today think about the right to water. We designed the seminar to provoke debate and discussion around four themes: nature of the rights to water and sanitation; content of the human rights to water and sanitation; strategies for accountability; and community perspective and bottom-up critique of human rights. It did just that. Our final report from the seminar shows just how far the discourse around human and the environment has come.
March 21, 2013
Clinic and Human Rights Watch: Obama Should Urge Jordan to Stop Sending Asylum Seekers Back to Syria
Posted by Meera Shah
In a joint press release with Human Rights Watch today, the International Human Rights Clinic called on President Obama to use his visit to Jordan as an opportunity to urge the Jordanian government to stop returning asylum seekers to Syria.
While Jordan has accommodated more than 350,000 refugees since the start of the Syrian conflict in March 2011, it is routinely and unlawfully rejecting Palestinian refugees, single men, and undocumented people seeking asylum at its border with Syria. Based in part on the Clinic’s field research conducted in Jordan and Lebanon over January term, the extended press release documents the difficulties faced by asylum seekers in these categories as they attempt to flee the fighting in Syria.
Below you’ll find the first part of the press release. Here is the full document.
Jordan: Obama Should Press King on Asylum Seeker Pushbacks
Palestinian Refugees, Single Men, and Undocumented Unlawfully Forced Back to Syria
(New York, March 21, 2013) – Jordan is routinely and unlawfully rejecting Palestinian refugees, single males, and undocumented people seeking asylum at its border with Syria, Human Rights Watch and Harvard Law School’s International Human Rights Clinic (the Harvard Clinic) said today.
While attention during U.S. President Barack Obama’s visit to Jordan on March 22, 2013 will focus on the large number of Syrian refugees that Jordan has welcomed and accommodated since the start of the Syrian crisis in March 2011, its rejection of these categories of asylum seekers fleeing the violence should not be ignored, Human Rights Watch and the Harvard Clinic said. President Obama should seek assurances from King Abdullah that Jordan will not reject any asylum seekers at its border with Syria. The risks to their lives in Syria are too serious to send anyone back at the present time.
“King Abdullah’s support for 350,000 Syrian refugees deserves President Obama’s praise, but Obama should not give Jordan a free pass to force Palestinian refugees and asylum seekers back to Syria,” said Bill Frelick, refugee program director at Human Rights Watch. “Jordan should recognize that everyone — and that includes Palestinian refugees, single men, and undocumented people — has the right not to be forcibly sent back to Syria to face the risk of death or serious harm.”
In two separate trips to Jordan and Lebanon, in January and February, Human Rights Watch and the Harvard Clinic conducted in-depth interviews with more than 120 Syrian and Palestinian refugees from Syria. Human Rights Watch and the Harvard Clinic documented that, as a matter of policy, Jordan is turning back people from Syria at its border without adequately considering the risk to them. Such a policy violates the international law principle of nonrefoulement, which forbids governments from returning refugees and asylum seekers to places where their lives or freedom would be threatened.Continue Reading…
March 20, 2013
Posted by Cara Solomon, Deborah Popowski and Stella Kim, JD '13
Yesterday, on the 10th anniversary of the U.S. invasion of Iraq, we joined our coalition partners in the launch of the Right to Heal initiative, a collaboration between Iraq Veterans Against the War (IVAW), the Organisation of Women’s Freedom in Iraq (OWFI), and the Federation of Workers Councils and Unions in Iraq (FWCUI), as well as other supporting organizations. One by one, standing in front of the White House, members of IVAW and OWFI delivered the message that the wars in Iraq and Afghanistan are not over for them.
The organizations, represented by the Center for Constitutional Rights, announced that they would file a petition for a thematic hearing before the Inter-American Commission on Human Rights, calling for U.S. accountability for the human cost of these wars. In testimonies that were both moving and motivating, speakers on both sides of the U.S.-led conflict in Iraq described the toll that a decade of war had taken on their communities, including the loss of thousands of lives; devastating trauma and injury with shamefully inadequate or non-existent medical care; a legacy of health and environmental poisoning due to toxic munitions and burn pits; gender-based violence as a weapon and byproduct of war; and a generation of orphans and displaced people.
Joyce Wagner, a longtime member of IVAW, spoke about the violence the war had unleashed on women, and specifically, about her experience with Military Sexual Trauma. We thank her for allowing us to reprint her comments below:
In recent years, the United Nations has taken a strong stance against gender-based violence, calling it a “pandemic” that concerns not only women, but every single person on the planet.
Worldwide, it is estimated that one in five women will be raped in her lifetime. In the US military, it is estimated that one in three women will be raped during her time in service. I am the one in three.Continue Reading…
March 11, 2013
March 26, 2013
“For Us, The Wars Aren’t Over: The Right to Heal Initiative”
7:00 – 9:00 p.m.
Food will be served
Ten years after the U.S. invasion of Iraq, the Human Rights Program and organizations from across the Harvard and Boston communities mark the anniversary with speakers from two groups still living with the consequences of the last decade of U.S.-led wars: Iraqis and U.S. veterans and service members. Members of the Organisation of Women’s Freedom in Iraq and Iraq Veterans Against the War will speak about the costs of war they share. Together with attorneys from the Center for Constitutional Rights and Harvard Law School, they will discuss the Right to Heal Initiative, the partnership they have formed to fight for redress.
Yanar Mohammed, President, Organisation of Women’s Freedom in Iraq
Ms. Mohammed is the founder of OWFI, a nongovernmental organization that promotes women’s rights and interests in Iraq. She will speak about OWFI’s work in an Iraqi town near a U.S. military base that has seen dramatic increases in the incidence of birth defects, cancers, and other severe health ailments.
Matt Howard, Member, Iraq Veterans Against the War
Mr. Howard served two tours in Iraq with the Marine Corps. He will discuss the costs of war for U.S. service members and veterans, particularly the obstacles that prevent too many from receiving proper medical and mental health care. IVAW and its subcommittee, Afghan Veterans Against the War, have advocated for the withdrawal of U.S. troops from Iraq and Afghanistan, and for reparations to Iraqis for the costs of war.
Pamela Spees, Senior Staff Attorney, Center for Constitutional Rights
Ms. Spees will discuss CCR’s role as a support player in the Right to Heal’s collaborative project to ensure the U.S. takes concrete steps for health care, accountability, and reparations.
Moderator: Deborah Alejandra Popowski, Lecturer on Law, Harvard Law School
This event is being co-sponsored by: HLS Advocates for Human Rights, Harvard National Security and Law Association, Islamic Society of Boston, National Lawyers Guild (Mass. Chapter), Veterans for Peace (Ch. 9, Smedley D. Butler Brigade), BC Law Holocaust/Human Rights Project, HKS Human Rights Professional Interest Council, HLS American Constitution Society, HLS Democrats, HLS Human Rights Journal, Harvard International Law Journal, HLS Muslim Law Students Association, Harvard Women’s Law Association, HSPH Muslim Student Group, MIT Amnesty International, MIT Center for International Studies, MIT Muslim Student Association, Northeastern Univ. Arab Student Association, Human Rights Caucus at Northeastern Univ. School of Law, Tufts Univ. New Initiative for Middle East Peace, Tufts Univ. Fletcher School Human Rights Project
March 11, 2013
March 11, 2013
“Women, War, and Survival: Rethinking Legal Understandings of Historical Trauma”
A Preview Screening of the Documentary Film “Imagine a War”
Followed by a Panel Discussion
6- 8:30 pm
Please join us for a provocative new documentary featuring one woman’s troubling account of surviving WWII as a German in Berlin. The director of the film, Malcom Rogge, LL.M candidate, will be present.
In addition to Rogge, other panelists include: Luise Druke, Fellow, Harvard Humanitarian Initiative; Heidi Matthews, S.J.D. candidate; and Alan Stone, Touroff-Glueck Professor of Law and Psychiatry. The discussion will be moderated by Janet Halley, Royall Professor of Law, Harvard Law School.
This event is being co-sponsored by the HLS SJD Association and Harvard Women’s Law Association.
March 7, 2013
Posted by Cara Solomon
For those of you in need of an end-of-the-week intellectual treat, tomorrow our clinicians are stepping in to moderate discussions on some of the most pressing issues of the day:
Tyler, our Clinic’s co-director, will moderate a panel at the International Law Journal Symposium on “Addressing Environmental, Human Rights and Development Issues in International Investment Arbitration.” That panel, which runs from 4:15- 5:30 p.m. in Wasserstein 204, will feature Laurence Boisson de Chazournes, Professor of International Law at the University of Geneva; Joost Pauwelyn, Nomura Visiting Professor of International Financial Systems at Harvard Law School, Professor of International Law at Graduate Institute of International & Development Studies at Geneva; and Enrique Gomez-Pinzon, Partner at Holland & Knight LLP; and Attila Tanzi, Professor of International Law at the University of Bologna.
And Meera, our Clinical Advocacy Fellow, will moderate an American Bar Association tele-conference entitled “The Syrian Refugee Crisis: Perspectives from the US, UN, and Civil Society.” That panel, from 12- 1:30 p.m., will feature Zaid Hydari, of the Helsinki Citizens Assembly; Jana Mason, of the United Nations High Commission on Refugees; Jennifer Williams, Bureau of Population, Refugees, and Migration, U.S. Department of State; and a Syrian refugee activist TBA.
March 6, 2013
March 7, 2013
Migration and Human Rights in the Americas: A Discussion of the Dorzema et al. v. Dominican Republic Case
12- 1 pm
Last October, the Inter-American Court of Human Rights adopted a standard- setting decision in the Dorzema et al. v. Dominican Republic case, when it condemned the Dominican State for the killing and collective expulsion of Haitian migrants by the armed forces. Please join us for a discussion with the lead attorney on the case, Professor Bernard Duhaime, of the University of Quebec in Montreal, and Professor Susan Akram, of Boston University School of Law, who participated in the case as Amicus Curiae.
Prof. Duhaime will present the decision in its context and talk about its importance for the development of human rights law. He will also address how the case was litigated and talk about the challenges to come in the implementation phase. Prof. Akram will discuss how longstanding issues that the Court and Commission have addressed as discrimination against migrants shaped the Court’s decision in the Dorzema case.
March 6, 2013
Posted by Cara Solomon
Last month, in the rush of the start of the semester, I neglected to mention a very big honor bestowed upon Susan: She was one of several Harvard Law School faculty invited by Dean Minow to write an essay exploring the work of U.S. Supreme Court Justice Ruth Bader Ginsburg.
Justice Ginsburg received the book of essays while on campus for a celebration of her years on the Court. Dean Minow read aloud from the essays during the event.
“It was truly an honor to be asked to contribute this piece in celebration of Justice Ginsburg’s twenty years on the Court,” Susan said. “To say that I admire her would be a huge understatement; she is a trailblazer and one of my personal heroes.”
March 5, 2013
Posted by Susan Farbstein
Our partner in South Africa, Equal Education Law Centre (EELC), is appearing as an amicus curiae before the Constitutional Court today in a case that will determine whether school governing bodies can suspend pregnant students. EELC will help to challenge lower court decisions holding that a provincial Head of Department cannot instruct a principal to ignore a school governing body pregnancy policy, even when that policy results in the unlawful suspension students on the grounds of pregnancy.
EELC, in support of the Head of Department, contends that the school governing body’s pregnancy policies unfairly discriminate on the basis of gender and pregnancy, violate female students’ right to a basic education, and are not in the best interest of the child or the circumstances of affected students. In addition, the school governing bodies’ actions violate national and provincial policies which seek to ensure that pregnant students are able and encouraged to attend school as long as they are physically capable, and return to school as soon as possible after giving birth.
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