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December 18, 2020
In July 2020, MSI Integrity and the International Human Rights Clinic launched the blog series, “Rethinking Multi-Stakeholder Initiatives.” Accompanying the publication of MSI Integrity’s major report, Not Fit-For-Purpose, the blog series sought to share several critical perspectives on the MSI field. The contributions largely honed in on two of the key questions posed by the report: are MSIs working for rights holders, and do we need to rethink the role of MSIs as human rights tools?
Beginning with Christie Miedema in her piece, “Binding Brands to Create Change,” and ending with Fola Adeleke’s “Rethinking Corporate Accountability,” the series amounted to nine thoughtful contributions. To close the series, Amelia Evans and Teddy Ostrow of MSI Integrity shared their thoughts on some of those perspectives, as well as what’s next for the organization.Continue Reading…
December 16, 2020
Posted by Dana Walters
For the Human Rights Program, fall 2020 was different — but no less busy. After a brief stint with remote schooling last spring, faculty, students, and staff committed to shifting their methods of advocacy and learning fully online this fall. Despite challenges, we all found ways of maintaining community and building connection virtually.
The International Human Rights Clinic held two introductory classes and an advanced seminar for third-year JDs. With almost 40 students this fall, projects examined the right to water in South Africa and the United States; killer robots; accountability for human rights violations by corporations and the United Nations; the arms trade treaty and gender-based violence; climate change and human rights; and more.Continue Reading…
December 14, 2020
Posted by Fola Adeleke
A version of this contribution was originally published by Afronomics Law on December 11, 2020.
Earlier this month, investigative journalists disclosed that Indian garment factories responsible for the supply to global supermarket chains such as Marks & Spencer, Tesco, and Ralph Lauren were exploiting their workers. Some of the allegations include poor wages, 22-hour work shifts with no toilet or water breaks. These conditions exist despite the existence of a local law, the Indian Factories Act, which sets out working conditions for workers in this industry. More importantly, the brands that use these suppliers in India are all part of the Ethical Trading Initiative (ETI) that was set up in 1998 shortly after the sweatshop conditions that engulfed major brands such as Nike and Gap in the 1990s.
The ETI is part of a trend known as multi-stakeholder initiatives (MSIs). MSI involve a “collaboration among various public and private actors—such as corporations, governments, CSOs, and rights holders—that have a stake in an issue.” These MSIs set global voluntary industry standards for its members to follow and are often punted as addressing issues of public concern such as human rights violations in specific industries. These MSIs are geared towards establishing a governance model to tackle a gap “where a state either cannot, or will not, fulfill its duty to protect its citizens against human rights violations by companies.” The stated aim of the ETI is to improve working conditions in global supply chains by developing effective approaches to implementing the Base Code of labour practice developed by the initiative.
Despite the increasing popularity of MSIs, it is clear that self-regulation through this governance model is not the answer to driving corporate accountability for matters of public concern such as human rights protection. In a report released in July 2020 by MSI Integrity, a non-profit originally dedicated to understanding the human rights impact and value of MSIs, it was found that MSIs are not effective tools for holding corporations accountable for abuses, protecting rights holders against human rights violations, or providing survivors and victims’ with access to remedy. The report showed that we need to rethink the role of MSIs and the presence of an MSI in an industry should not be a substitute for public regulation.Continue Reading…
December 9, 2020
HLS student clinical team submits Supreme Court amicus brief on behalf of legal historians
On Dec. 1, 2020, the Supreme Court of the United States heard oral arguments in Nestlé v. Doe and Cargill v. Doe—a pair of corporate human rights cases against U.S.-based chocolate companies for their role in aiding and abetting child slavery in West Africa. Despite repeated promises from chocolate companies to curtail the practice, the problem remains far from fixed, with some estimates finding as many as 1.56 million children aged five to seventeen forced to harvest cocoa in Côte d’Ivoire and Ghana in 2018 and 2019 alone. The plaintiffs are six former child slaves who allege they were trafficked from Mali and forced to work in Côte d’Ivoire cocoa farms. The plaintiffs make use of the Alien Tort Statute (ATS), a provision of the First Judiciary Act of 1789 that has allowed foreign nationals to pursue accountability for human rights violations in U.S. courts over the past several decades.
In October, the International Human Rights Clinic at Harvard Law School filed an amicus curiae brief on behalf of legal historians in the consolidated cases against the chocolate companies. A student clinical team—Emily Ray ’21, Jasmine Shin ’21, Allison Beeman ’22, and Zarka Shabir ’22—under the supervision of Tyler Giannini, clinic co-director, worked with the amici on the brief. Amici were Professors Barbara Aronstein Black, Columbia Law School, Nikolas Bowie ’14, Harvard Law School, William R. Casto, Texas Tech University School of Law, Martin S. Flaherty, Fordham School of Law, David Golove, New York University Law School, Eliga H. Gould, University of New Hampshire, Stanley N. Katz, Princeton University, Samuel Moyn ’01, Yale Law School, and Anne-Marie Slaughter ’85, Princeton University and CEO of New America.
The Human Rights Program (HRP) at HLS spoke with the team about the ATS, their brief, and why the SCOTUS argument matters for human rights and corporate accountability.
Human Rights Program: What is at stake in the case?
Emily Ray: The ATS has been a key tool for many survivors of human rights abuses who have been unable to find justice in domestic court systems in their own countries or through international bodies like the International Criminal Court. For years, the ATS was groundbreaking because it allowed foreign plaintiffs to bring civil claims in U.S. courts for torts that violate the law of nations. The Supreme Court has placed restrictions in recent years on the statute, and this case decides, among other issues, whether the ATS can be used to bring cases against American corporations who have perpetrated or assisted in the perpetration of human rights abuses around the world. What the Supreme Court decides will have far reaching effects on that question.
Zarka Shabir: For me, what’s at stake is the idea that a U.S. corporation can be held liable in the United States for its involvement in rights violations regardless of where it commits them. It’s the idea that a corporation cannot, simply by virtue of being a corporation, violate accepted international law with impunity. One of the questions in the case is whether the ATS should permit claims against natural persons but not corporate entities, as Nestlé and Cargill have argued. During oral arguments, several Justices pressing counsel for the companies and the U.S. government on that point. Across the globe, an increasing number of countries have recognized that corporations cannot be left immune and without scrutiny. This case presents an opportunity for the United States to stay on track with this global trend.
Tyler Giannini: One of the reasons the First Congress passed the ATS was to send a signal to other nations that the United States would uphold the rule of law and that it could be trusted as part of the international community. This was especially true as a young nation at the time. While it’s no longer a new nation, the question of whether the U.S. will uphold basic principles of law and human rights has come under scrutiny again in recent years. As we said in the brief, it’s well established that a nation should hold its own citizens to account and not let action on its territory offend other countries and accepted international norms. The Court has the chance to affirm this idea in this case and to make clear that U.S. corporations can’t aid abuses like child slavery.
Jasmine Shin: Simply put, what’s at stake in this case is justice for the six plaintiffs who were trafficked and forced to endure unimaginable conditions. This case was first filed fifteen years ago, and these plaintiffs, who are now in their thirties, have not been able to have their day in court.Continue Reading…
December 9, 2020
Gerald L. Neuman, Human Rights Program Co-Director, reflected on populism and human rights in a post-Trump landscape for Open Global Rights today, Dec. 9, 2020. Neuman, who is also and the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School, describes some of the ideas first presented in his recent edited collection, Human Rights in a Time of Populism (Cambridge University Press, 2020) while expounding on what comes next for the U.S. government to overcome the damage the outgoing Trump administration has done domestically and internationally.
Neuman’s post comes on the heels of a Nov. 18 panel with the Harvard Law School Library further reflecting on the book’s themes. At that event, Neuman was joined by panelists: César Rodríguez-Garavito, Director of the Center for Human Rights and Global Justice, NYU School of Law; Richard Javad Heydarian, an academic, columnist, and policy adviser in the Philippines; and Ruth Okediji. Jeremiah Smith. Jr, Professor of Law at Harvard Law School and Co-Director of the Berkman Klein Center. You can watch the HLS Library book talk below:
December 9, 2020
Posted by Dana Walterrs
Over the last semester, Laura Soundy ’22 and Rehab Abdelwahab ’21 have learned how critical it is to talk about subjects other than law. As the two team members on their project in the International Human Rights Clinic, they made space to share both their commitment to eradicating injustice as well as the fears and frustrations that come with living life, and attending law school remotely, during a pandemic. And when they learned they were both quarantining in Texas—albeit on opposite sides of the state—the two quickly formed a plan to meet in the middle (after two weeks of isolation and in as safe a manner as possible).
Soundy and Abdelwahab first met this September while working under the supervision of Clinical Professor Susan Farbstein ’04, who was running a project with a community in the Eastern Cape of South Africa. Despite the right to water being enshrined in South Africa’s Constitution, the community has long gone without consistent access to potable drinking water. Over the last eight weeks, Soundy and Abdelwahab have become not only trusted colleagues and collaborators, but also close friends. Building a connection in the virtual world is difficult, but the two students were eager and intentional about doing the legwork to make their team a success.
Originally from South Dakota and a transfer student to Harvard Law School, Soundy knew the odds of making it into the International Human Rights Clinic were slim. Students filled the clinic’s spots for the following year just as she was admitted to HLS last spring. At the last minute, however, she won the lottery for the final seat and rearranged her entire schedule to make it work. Soundy, who majored in sociology at Baylor University, was first drawn to law school because of her interest in human rights.
Abdelwahab grew up in Qatar and later attended Yale University. Focused on global health and international affairs, she wanted to be a doctor. Still, after completing all the prerequisites and taking the MCAT, she realized medicine would never give her the opportunity to make a difference on a macro scale the way law might.
After obtaining spots in the International Human Rights Clinic, both were instantly drawn to Farbstein’s project.
“A lot of the ways human rights issues are addressed are reactive and about retribution. This project was framed from a lens of sustainability and cooperation. Instead of solely focusing on who is at fault, we were also interested in building up infrastructure so that it actually served the people,” said Abdelwahab.
Working in close collaboration with the Equality Collective, an innovative new South African NGO that builds capacity and structures for collective participation, with a focus on rural and marginalized communities, the clinical team spent the semester laying a foundation for a major regional campaign around access to water. Because the project was new, outcomes were less defined.
“We really had the opportunity to shape the project,” Abdelwahab said. “It was exciting but also challenging. Laura and I were both really invested in understanding the interaction between the local, municipal, and national laws governing the right to water in South Africa, but we had no background in the issue and we were thrust into the deep end.”Continue Reading…
December 7, 2020
Posted by Nathalie Gunasekera JD'21
“The ideals of the United Nations – peace, justice, equality, and dignity – are the beacons to a better world.” UN Secretary-General António Guterres made these remarks during September’s UN General Assembly ceremony, which commemorated the organization’s 75th anniversary. These ideals are enshrined in the UN Charter, and yet, they been severely tested by the organization’s recent history in Kosovo. For more than two decades, the UN has refused to accept legal responsibility and deliver justice to Roma, Ashkali, and Egyptian minorities who were forced to live in UN-run lead contaminated refugee camps.
In September 2020, the UN Special Rapporteur on Toxics Dr. Marcos Orellana presented his predecessor’s report on lead poisoning in Kosovo. He delivered a clear message: inaction must end, and justice must be delivered.Continue Reading…
December 2, 2020
Posted by Erin Shortell JD'21
On August 26, 2013, 18-year-old Muhammed Assi stood in the courtyard of a Syrian school talking with five classmates. Suddenly, an incendiary bomb landed in the middle of the group of students, immediately killing all but Muhammed.
“The intensity of the explosion threw me a distance of about three to four meters from where the missile struck,” Muhammed said. “We were surrounded by the fire. I used my hands to hit my head to try to snuff out the fire.” Other students screamed in horror, many badly burned and calling out for help, and dead bodies lay in the schoolyard. Muhammed recalled, “Time seems to stop when these things happen to you… [W]ords can’t describe my feelings, but I saw the fire completely surrounding me from everywhere, and when the breeze blew, it fed oxygen into the incendiary substance and made it burn even stronger.”
In a new report entitled, “They Burn Through Everything”: The Human Cost of Incendiary Weapons and the Limits of International Law, Human Rights Watch (HRW) and the Harvard Law School International Human Rights Clinic (IHRC) detail the human suffering inflicted by incendiary weapons. These weapons produce heat and fire through the chemical reaction of a flammable substance. Protocol III to the Convention on Conventional Weapons (CCW) imposes some restrictions on the use of incendiary weapons, but it has failed to adequately protect civilians like Muhammed. While CCW states parties have expressed concerns about the use of incendiary weapons for years, the report urges them to formalize these discussions at their Review Conference next year and to strengthen Protocol III.Continue Reading…
December 1, 2020
Clinic Submits Amicus Curiae Brief on Behalf of Legal Historians
Today, Dec. 1, the Supreme Court of the United States hears oral arguments in a pair of corporate human rights cases against U.S. based chocolate companies Nestlé and Cargill for their role in aiding and abetting child slavery in West Africa. The plaintiffs, six survivors of kidnapping, trafficking, and forced labor, make use of the Alien Tort Statute (ATS), a provision of the First Judiciary Act of 1789 that allows foreign nationals to pursue accountability for law of nations violations in U.S. Courts. In examining the cases, the Supreme Court will consider the question of corporate liability under the ATS for the third time – this time focusing on whether or not the ATS permits cases against U.S. domestic corporations at all.
In October, the International Human Rights Clinic filed an amicus brief on behalf of legal historians in the case against the chocolate companies. The brief includes newly uncovered historical documents from George Washington’s first administration which clearly demonstrate how the founders intended the ATS to apply to violations committed by U.S. subjects. The documents include an opinion by Thomas Jefferson and affirm that the ATS was intended for the very purpose at issue in the current cases: to provide options for redress to foreign nationals whose rights have been violated by U.S. subjects.
A clinical team – Emily Ray JD’21, Jasmine Shin JD’21, Allison Beeman JD’22, and Zarka Shabir JD’22 – under the supervision of Tyler Giannini, Clinic Co-Director worked with the amici on the brief. Amici on the brief were Professors Barbara Aronstein Black, Nikolas Bowie, William R. Casto, Martin S. Flaherty, David Golove, Eliga H. Gould, Stanley N. Katz, Samuel Moyn, and Anne-Marie Slaughter.
The International Human Rights Clinic staff have played a major role in ATS litigation for decades, including in landmark corporate cases such as Doe v. Unocal and Wiwa v. Royal Dutch Petroleum Co. Since 1980, the law has been a critical means of holding perpetrators accountable for abuses such as extrajudicial killing, torture, war crimes, and crimes against humanity when redress might otherwise be unavailable elsewhere. Still, in recent years, the law has been curtailed and challenged.
Learn more about the case in the Nestlé & Cargill v. Doe symposium on Just Security and the case preview on SCOTUSblog. Read about all eighteen amicus briefs filed in support of the survivors of child trafficking on the Corporate Accountability Lab’s blog, and dive into Daniel Golove’s article exploring the significance of the new evidence the Clinic relied on in its brief supporting plaintiffs.
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