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June 16, 2022

Moving Beyond Token Participation

Centering Rights-Holders in Human Rights Due Diligence Legislation

This article was originally published on Verfassungsblog. It is co-authored by Tina Asgharian, Bettina Braun, and Allison Miller.

“Human rights due diligence is about people. (…) Hence, the key to human rights due diligence is the need to understand the perspective of potentially affected individuals and groups.”1) This quote from the Office of the High Commissioner for Human Rights reflects the importance of rights-holder engagement in the human rights due diligence process as presented in the UN Guiding Principles on Business and Human Rights (UNGPs). The concept of human rights due diligence was developed over the past decade as a way for companies to grapple with adverse human rights violations and impacts connected to their business practice, including within their value chains. In the past few years, several countries have enacted legislation or started legislative processes to make such due diligence mandatory, and in February of this year, the European Commission published a proposal (Proposal)2) for European Union-wide mandatory human rights due diligence (MHREDD) for companies that fall under its scope.

Despite the many developments around due diligence, however, consistently centering the perspectives of those who are meant to benefit most from the legislation – the rights-holders – has remained somewhat elusive. This post therefore explores how MHREDD-legislation and specifically the Proposal could more systematically center and prioritize rights-holders along with their perspectives and contributions, which would increase the effectiveness of due diligence efforts. In these reflections, the authors draw on experiences of the Fourth Pillar initiative, which for the better part of the past decade has explored how to better center communities and rights-holders in the field of business and human rights.3)

A regulatory scheme that centers communities and rights-holders would allow them to exercise their agency, address the power imbalances that allow states and businesses to all-too-often ignore community perspectives, and shape economic activity to advance rights. This post argues that changes to the Proposal, including to requirements regarding consultations, remedy, and community governance, would support these aims.

Consultations in due diligence steps

A key step in the due diligence process is to engage with those whose rights are (potentially) impacted by the company’s activities in order to identify and address issues such as forced labor, child labor and other exploitative labor practices in a company’s supply chain, unlawful taking of land in extractive industries, or pollution of air or water through business activity leading to severe health impacts of surrounding communities. While the Proposal does mention consultations with stakeholders, several changes could help ensure inclusion of rights-holders and deepen the consultation’s impact. Currently, the Proposal states that companies as part of a step to identify adverse impacts should “where relevant” conduct consultations with “potentially affected groups including workers and other relevant stakeholders.”4) Consultations also appear at the step of preventing adverse impacts: companies should “where relevant” develop a prevention action plan, to be developed in consultations with “affected stakeholders.”5) Notably, consultations are not mentioned as part of a company’s monitoring of their due diligence, nor as a necessary part of providing remedies (see below for further discussion on remedy).

To effectively center rights-holder perspectives, consultations with the rights-holders need to be required, and not only when the company deems it “relevant.” Such consultations are key to informing how to effectively address business-related human rights concerns since rights-holders possess first-hand experience with impacts of corporate decision-making and activities and are able to articulate their specific needs. Indeed, rights-holders are uniquely equipped to prioritize the rights concerns that they most want addressed.

Further, centering rights-holders requires consultation of rights-holders throughout the life of the business activity: at the risk identification stage (Art. 6), when making corrective action plans to address existing risks (Art. 7), and when bringing actual adverse impacts to an end (Art. 8), as well as the monitoring of the effectiveness (Art. 10). An initial consultation cannot fully reveal rights-holder perspectives regarding all eventualities that will emerge over time as the business activity proceeds. The different steps will also likely require different types of consultations. For example, the identification of adverse impacts in the business practice aims to gather information on where violations throughout a company’s business practice and value chains might occur. Compare that with engagement around a specific adverse impact that has already occurred (Art. 8); these consultations will likely require a different process given that affected communities and rights-holders would be more easily identified and the focus then needs to shift to how to address the needs of those affected.

At each of these steps, it is important that the Proposal explicitly name rights-holders and not solely use the term “stakeholders,” which in the Proposal is broadly defined and encompasses a wide range of actors, including ‘individuals, groups, communities, or entities whose rights or interests’ may be affected by companies.6) Among the various “stakeholders,” the Proposal should make it absolutely clear that rights-holders are to be prioritized. Experience with human rights due diligence to date as well as experience under the French Loi de vigilance, the first law to mandate human rights due diligence, shows that where the definitions of “stakeholders” are broad, many companies pass over rights-holders.7) Particularly at later stages of the due diligence process companies should be responsible for consulting differently affected groups, including representatives of affected communities, marginalized groups within affected communities, and employees, among others. Human rights defenders may be another key actor for businesses to engage with, with due consideration for protection of their safety, given their knowledge and insights in local human rights matters.8)

In order to realize the potential of the Proposal on consultation, there should be a requirement that the consultations be meaningful9) to avoid a box-ticking exercise. Meaningful consultation should include requirements related to procedure and outcomes. At each stage, businesses should be required to create and facilitate conditions for rights-holders to participate in consultations, including through the elimination of existing barriers to rights-holder participation. The expectations of rights-holders, which vary with context and are subjective, are important considerations and connected to the political or social legitimacy as it relates to the license to operate. While procedural requirements are easier to define and evaluate, it is also possible to incorporate outcome-based requirements into regulatory schemes. For instance, if a business consistently ignores the perspectives of affected rights-holders, that business should be deemed out of compliance with the meaningful consultation requirement. To avoid such eventualities, businesses should strive to respect human rights through the incorporation of rights-holder perspectives into final decisions. Consultation that is solely process-oriented and leads to no outcomes that improve rights protection or promotion should be viewed with skepticism as it will raise the specter of “token participation” and being a box-ticking exercise.

Access to Effective Remedies

One of the five objectives of the Proposal is to “improve access to remedies for those affected.”10) Access to effective remedy is also a core component of the UNGPs. Yet the Proposal in its current wording does not require companies to provide effective remedies for rights-holders and affected communities. Art. 8 of the Proposal recognizes that companies have a responsibility to take action to neutralize or minimize adverse impacts, where relevant, including by the payment of damages to affected persons and financial compensation to affected communities. Remedies are, however, a much broader concept than mere financial compensation. The language of “where relevant” further indicates that companies have discretion to neutralize or minimize adverse impacts while not providing a remedy to rights-holders.

To fully capture the core purposes of remedies and improve access to remedies for those affected, the Proposal should better align itself with the overarching principles of effective remedies, as articulated in the UN Working Group’s 2017 Report to the UN General Assembly. In particular, it should introduce the concept of “bouquet of remedies” and stress the centrality of rights-holders in both remedial processes and outcomes.

The key purposes of remedies are to return, as far as possible, the affected rights-holder to the original position before the harm, to prevent future harm, and to deter others from committing the same or similar abuses.11) Financial compensation is only one of several forms that an effective remedy may take. Other forms include restitution, satisfaction, rehabilitation, and guarantees of non-repetition. These types of remedies may include medical care, land redistribution, vocational training, truth finding, public apology, and restoration of the environment. The draft Proposal should therefore reflect that affected rights-holders and communities should be able to seek, choose, obtain, and enforce a “bouquet of remedies”: A range of remedies depending on varied circumstances, including the nature of the abuses and the personal preferences of rights-holders.12)

The centrality of rights-holders in access to effective remedies means, among other things, that the creation and implementation of remedies should also be informed by the experiences and interests of rights-holders, including a recognition that different groups of rights-holders may experience adverse impacts differently. Centering rights-holders also entails having remedies be accessible, affordable, adequate, and timely from the perspective of those seeking them.13) The draft Proposal should therefore include language to ensure that community consultations and perspectives are central to creating, designing, and operating remedies.

Community Governance

Better centering rights-holders requires incorporating community perspectives through consultations and in remedial processes, but these measures are just initial steps towards providing rights-holders with a seat at the table. To center rights-holders more fully, they should also have opportunities to engage in governance when they choose, both through the creation or co-creation of mechanisms and as consistent participants in such mechanisms. Rights-holder involvement in governance not only provides additional opportunities for communities to contribute their insights and preferences but also lends legitimacy to governance mechanisms that claim to benefit rights-holders.

Community-created or co-created operational-level grievance mechanisms are examples of approaches that treat rights-holders as governance actors. Such an approach means engaging in a transparent process with affected rights-holders through meaningful consultations and allowing them to participate in the design and creation of the mechanism. Art. 9 of the Proposal, which currently does not include any language on how to ensure or assess the effectiveness of the complaint mechanisms, should explicitly reflect this possible role of rights-holders in setting up and reviewing complaint mechanisms. This is also in line with the effectiveness criteria in UN Guiding Principle 31, which articulates the crucial role rights-holders have to play in the legitimacy of complaint mechanisms.

Rights-holders could likewise play a larger role in the administrative enforcement of MHREDD legislation by developing guidance and helping to oversee the national supervisors. Currently, Art. 21 of the Proposal states that the Commission will set up a European Network of Supervisory Authorities for coordination and alignment. This Network could take on additional tasks like developing best practices and guidelines for regulators, which other EU enforcement bodies have, and include rights-holders in the Network. Some rights-holder groups have existing transnational representation. For instance, National Human Rights Institutes or their regional networks could be uniquely placed to exercise some control over the supervisory authorities. Additionally, laborers are represented transnationally through international trade unions. At minimum, therefore, the Network should be expanded to include international trade unions. Other rights-holder groups however do not have clear transnational representatives. Beyond labor, additional efforts should be made to acknowledge and include transnational rights-holder representatives as they emerge. Efforts to hold space for rights-holders without preemptively designating a representative allows for more genuine rights-holder representation and provides opportunities for rights-holders to engage in a much deeper way to uphold their interests and the protection of human rights.

Outlook

MHREDD and other legislation related to business and human rights is a welcome new development, and one that is likely to spread to an increasing number of countries in the coming years. For such legislation to succeed in advancing the rights of the most affected and to lead to better human rights outcomes for rights-holders, it is crucial to anchor such laws and regulations with not only the perspective of rights-holders but their ongoing involvement. To do otherwise, as this post has discussed, would miss an invaluable opportunity to improve the landscape of business and human rights to center rights-holders in the years to come.

The authors would like to thank Tyler Giannini for his input and review of the contribution.

Tina Asgharian

Tina Asgharian recently completed her Master of Laws (LL.M.) at Harvard Law School, where she worked in the International Human Rights Clinic on refining and promoting the Fourth Pillar initiative.

Bettina Braun

Bettina Braun, LL.M. is a Policy Advisor for Business and Human Rights in the International Human Rights Policy department of the German Institute for Human Rights.

Allison Miller

Allison Miller recently completed her Juris Doctor at Harvard Law School, where she worked in the International Human Rights Clinic on refining and promoting the Fourth Pillar initiative.

References

↑1OHCHR: The Corporate Responsibility to Respect Human Rights, An interpretive Guide (2012), p. 33.
↑2Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937.
↑3Two of the authors, Tina Asgharian and Allison Miller, have drawn on their work as students in Harvard Law School’s International Human Rights Clinic, which has helped incubate the Fourth Pillar initiative during the past decade along with other organizations. The initiative aims to articulate a set of community-centric principles to underscore the importance of rights holder agency to the effective implementation of human rights protections such as those articulated in the UNGPs.
↑4Art. 6(4).
↑5Art. 7(2)(a).
↑6Art. 3(n).
↑7Ignacio Ibañez, Bayer, Xu, Cooper: Devoir de Vigilance: Reforming Corporate Risk Engagement (2020), p. 121, available at https://www.ipoint-systems.com/fileadmin/media/downloads/Devoir-de-Vigilance_Loi-2017-399_Study_2020.pdf
↑8See UN Special Rapporteur on the situation of Human Rights Defenders statement, available at https://srdefenders.org/information/eu-proposal-on-corporate-due-diligence-a-welcome-step-forward-but-forgets-human-rights-defenders-says-un-special-rapporteur/; see also recommendations published by Front Line Defenders, available at https://www.frontlinedefenders.org/sites/default/files/front_line_defenders_briefing_-_protecting_hrds_through_effective_hredd.pdf.
↑9UNGPs 18.
↑10Proposal, p. 3.
↑11A/72/162, para 40.
↑12A/72/162, para 38 ff; see also commentary to UNPGs 25.
↑13A/72/162, para 20.

SUGGESTED CITATION  Asgharian, Tina, Braun, Bettina; Miller, Allison: Moving Beyond Token Participation: Centering Rights-Holders in Human Rights Due Diligence Legislation, VerfBlog, 2022/6/14, https://verfassungsblog.de/moving-beyond-token-participation/, DOI: 10.17176/20220615-033118-0.

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June 15, 2022

Addressing Nuclear Weapons Contamination: New Principles for Environmental Remediation

Posted by Bonnie Docherty

When the First Meeting of States Parties (1MSP) to the Treaty on the Prohibition of Nuclear Weapons (TPNW) convenes in Vienna from June 21-23, much of the discussion will center on how to implement the treaty’s positive obligations to remediate the contaminated environment and assist victims. 

These provisions are critical because nuclear weapons wreak havoc on the environment and the people who live in it. Radioactive contamination from the weapons’ use and testing devastates ecosystems; causes death, disease, and psychological trauma; displaces entire communities; destroys cultures; and more. 

To respond to this harm and inform the 1MSP’s debate, the Harvard Law School International Human Rights Clinic (IHRC) and the Conflict and Environment Observatory (CEOBS) have released a new report entitled Facing Fallout: Principles for Environmental Remediation of Nuclear Weapons Contamination. The report identifies 19 principles for implementing remediation measures and includes an in-depth commentary with explanation and precedent for each.  

Facing Fallout complements a 2020 report by the same authors entitled Confronting Conflict Pollution: Principles for Assisting Victims of Toxic Remnants of War. Victim assistance directly addresses the harm nuclear weapons cause to humans, while environmental remediation responds to its major underlying cause, i.e., radioactive contamination. Collectively, the reports set up a framework for a long-term response to the consequences of nuclear weapons. 

A new IHRC fact sheet, also released today, summarizes the environmental

remediation and victim assistance principles and lays out measures for initiating implementation to which TPNW states parties should commit at the 1MSP. In particular, the 1MSP should agree to: assess needs and state capacity, create a national infrastructure for environmental remediation and victim assistance, establish an informal intersessional working group, promote inclusivity, and uphold guiding principles of implementation. The fact sheet’s recommendations are similar to those put forth in a working paper by 1MSP co-facilitators Kazakhstan and Kiribati.  

IHRC and CEOBS based the principles in Facing Fallout on humanitarian disarmament law, international environmental law, international human rights law, and related policies. Where appropriate, they adapted these models to the distinctive characteristics of nuclear weapons.  

The principles are especially relevant for TPNW states parties, but they are also applicable to any state that seeks to remediate nuclear weapons contamination in its territory. They are summarized below according to their six categories: 

Purpose and Character 

Environmental remediation should address existing harm and unacceptable risks of future harm to the environment and affected communities caused by contamination from the use and testing of nuclear weapons. States should follow the precautionary principle and an iterative approach, adopt international standards and best practices, and use best available technologies. 

Definition of Harm 

The harm caused by nuclear weapons contamination should be understood broadly to encompass, inter alia, environmental degradation; loss of biodiversity; physical and psychological injuries and death; social marginalization; economic loss; loss of access to natural resources; obstacles to participation in cultural life; displacement of local communities; and substantial impairment of the realization of the human rights. 

Framework of Shared Responsibility 

Affected states should bear primary responsibility for environmental remediation of territory under their jurisdiction or control, while other states should provide technical, material, and financial assistance to help affected states meet their responsibilities. States and non-state actors should exchange scientific and technical information and promote capacity building.  

Steps of Environmental Remediation 

Affected states should begin by creating a national plan and assessing, surveying, and recording the problem, although plans and assessments may need to be updated over time. Affected states should also conduct an optimization analysis in which they evaluate different options and implement the one that produces the greatest benefit to affected communities and the environment. The analysis should take into account environmental, human health, social, cultural, and economic considerations as well as the preferences of affected communities and other stakeholders. 

Affected states should ensure risk education is available. They should break, disrupt, or remove pathways by which people are exposed to contamination, such as through marking and fencing and controlling food and water sources. If robust remediation is necessary and appropriate, they should address the contamination itself through containment and other treatment measures. Taking care during handling, transport, and removal of waste as well as long-term site management is also critical. 

Handling of Information  

Affected states should collect and disseminate information about affected sites and communities and remediation measures, and preserve it for the conceivable radiological life of the contaminated waste. 

Guiding Principles 

Affected states should meaningfully consult with and actively involve affected communities, their representative organizations, nongovernmental organizations, and other stakeholders at all stages of the remediation process. They should adhere to the principle of non-discrimination and ensure transparency of the process.  

***** 

TPNW states parties should take advantage of next week’s 1MSP to make concrete commitments to begin the process of operationalizing the treaty’s positive obligations. But in the intersessional period and beyond, they should start looking to the future and develop a long-term framework for environmental remediation and victim assistance. The IHRC-CEOBS principles and commentaries provide in-depth and well-grounded guidance for that endeavor.  

Bonnie Docherty, associate director of armed conflict and civilian protection IHRC was co-author and editor of Facing Fallout. A number of IHRC students contributed significantly to the conceptualization, research, and writing of the report: Naima Drecker-Waxman, Andie Forsee, Gillian Hannahs, Amy Hayes, David Hogan, Lavran Johnson, Jillian Quigley, Erin Shortell, Dane Underwood, Theo Wilson, and Jack Jaehyuk You. CEOBS provided guidance and review of the report.

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June 7, 2022

HRP Awards 2022-23 Post-Graduate Fellowships

From left to right: Henigson fellow Seher Aftab and Satter fellow Rosalinn Zahau


The Human Rights Program (HRP) is pleased to present its 2022-2023 Post-Graduate Fellows. This year, we have awarded Satter and Henigson Fellowships to two remarkable 2022 Harvard Law School (HLS) graduates: Henigson Fellow Seher Aftab LLM ’22 (on the left of photo above) and Satter Fellow Rosalinn Zahau LLM ’22 (on the right).

HRP’s post-graduate fellowships are designed to help launch the careers of students who have demonstrated great promise as advocates while at HLS. Fellows are placed with human rights organizations working under highly challenging circumstances. In light of the ravages accelerated by the pandemic, wars, growing authoritarianism and worldwide inequality, HRP is more committed than ever to supporting the careers of young professionals devoted to international human rights and social justice. Learn more about the new fellows and their projects below.

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May 13, 2022

2021 HRP Summer Fellow Reflection: Amre Metwally JD’22

Metwally spent summer 2021 at Social Media Exchange in Beirut, Lebanon

Photo of 2021 HRP summer fellow Amre Metwally

In a time of dim prospects for democracy in the Arab world and elsewhere, defending and advancing digital rights has long become a crucial frontier for human rights advocates. The Beirut-based Social Media Exchange (SMEX) is one of the few locally rooted NGOs to have made it their mission to advocate for digital rights in the Arab world. From July to August 2021, SMEX was supported by HRP summer fellow Amre Metwally JD’22 in pursuing that mission.

For Amre, SMEX had “long been a dream organization” of his to work with. He joined the NGO’s legal unit, which had only been established shortly before his fellowship. As an Egyptian-American, Amre was able to employ his language skills to seamlessly join forces with his colleagues on projects in Arabic. He says the following on his two main projects:

“The first was a project called “Muhal” which is a database that tracks freedom of expression infringements and arrests across the Arab world. I tracked incidents in Jordan and Tunisia. Additionally, my colleague and I drafted a report that analyzed how provisions in Tunisian, Jordanian, and Lebanese civil and criminal code can be used as pretexts or justifications behind freedom of speech violations. In particular, I was interested in looking at blasphemy, defamation, and cybercrime provisions in Jordanian law that served as the basis for violations.

The second project was a multi-person project that is actually funded by Privacy International. We wanted to better understand biometric and digital identification programs in the Gulf region in the Middle East. I was responsible for first researching the technical, legal, and economic underpinnings of national ID programs for Bahrain and Qatar. From there, I worked with my colleagues to find common trends, identify important differences, and flesh out a template for country-specific analyses. I then finished by writing my country analyses for Bahrain and Qatar.”

Amre brought extensive knowledge and a refined understanding of the tension between free speech and the regulation of online hate speech thanks to years of working for the content policy team at YouTube. Personal connections from his professional past also proved beneficial when Amre was able to liaise between the SMEX team and former YouTube colleagues now employed at TikTok to resolve a burgeoning crisis.

On the idea of “international human rights work”, Amre’s views evolved regarding the feasibility of cross-border coordination between human rights organizations:

“One project for SMEX was to create an Arab Alliance for Digital Rights. At first I assumed that, despite geographic diversity, it should be somewhat easy to get alignment. I was woefully unprepared for how difficult it was! Even when everyone was aligned for the need for strong “human rights” protections and advocacy work when it comes to the digital space, there was so much that changed based on, for example, a specific country’s reality compared to a different country. It made me realize just how much “international” human rights work is still ultimately shaped by, and influenced by, domestic or national human rights ideas and priorities.”

The internship at SMEX has only cemented the path Amre was on already. Advocating for digital rights was the reason he joined Harvard Law School, and his writing on the issue has been published on Slate.

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May 11, 2022

HRP Awards 2022 Summer Fellows

Group photo of 2022 HRP summer fellows including from left to right: Madeleine Rogers, Andrew Santana, Ishita Petkar, Zoe Shamis, Julia Lee.

HRP is pleased to announce its 2022 summer fellowship cohort: Madeleine Rogers JD’22, Andrew Santana JD’23, Ishita Petkar JD’24, Zoe Shamis JD’24 and Julia Lee JD’24.

Summer fellowships for human rights internships are a central part of the Harvard Law School human rights experience and provide rich professional, personal, and intellectual opportunities. Many students and alumni/ae who are committed to human rights were introduced to the field through an internship. Interns work for at least eight weeks with nongovernmental or intergovernmental organizations advancing human rights with an international focus.

You can find the student bios below.

Photo of Andrew Santana
Andrew Santana; credit: Lorin Granger

Andrew Santana will intern with International Rights Advocates, working on class action litigation on behalf of the survivors of human rights abuses in Latin America. He graduated from Cornell in 2013 with a B.A. in government and received a M.P.P. from the University of Oxford in 2020, where his research focused on application of international human rights law to freedom of expression online. Professionally, Andrew has worked in various communications and political roles for Jerry Brown, Kamala Harris, and Robert Reich. Last summer, he worked with International Rights Advocates on a wide range of human rights matters before federal courts. 

Photo of Ishita Petkar
Ishita Petkar; credit: Lorin Granger

Ishita Petkar will intern at EarthRights International in Washington D.C. She will work with their litigation and legal advocacy team to further corporate accountability for environmental and human rights violations. Prior to law school, Ishita directed policy advocacy at the International Accountability Project, an NGO dedicated to furthering community-led development and holding development banks accountable for the human rights impacts of their investments. Her masters thesis interrogated the varying definitions of free, prior, and informed consent (FPIC) held by Indigenous and corporate stakeholders in the international development process. Ishita holds a B.A. from the University of Toronto in English Literature and Indigenous Studies, and an M.A. in Human Rights from Columbia University. 

Photo of Julia Lee
Julia Lee; credit: Lorin Granger

Julia Lee will intern with Corporate Accountability Lab in Chicago, working on their combating forced labor, transitional justice, and ethical intellectual property projects. Julia is interested in international human rights and criminal law, and she hopes to work in Southeast Asia one day. Prior to law school, she spent a summer researching immigrant access to health care and social services in the Bom Retiro neighborhood of São Paulo, Brazil. She also worked in venture capital, education, and public relations in South Korea. She graduated summa cum laude from Emory University with a B.A. in English and minor in Global Health. 

Photo of Madeleine Rogers
Madeleine Rogers; credit: Lorin Granger

Madeleine Rogers will be interning with the International Institute for Democracy and Electoral Assistance on their Constitution Building Project. Working with the IDEA, Madeleine will focus in particular on constitutional formation processes in post-conflict zones, and analyzing strategies to ensure institutions capable of safeguarding human rights. She hopes to use this research to build on her interest in the role of governmental institutions and the rule of law on transnational human rights issues such as human trafficking and corporate accountability. Madeleine holds a BFA from the Juilliard School; she hails originally from Portland, Oregon.

Photo of Zoe Shamis
Zoe Shamis; credit: Lorin Granger

Zoe Shamis will intern with the Clooney Foundation for Justice, working in their TrialWatch division, which monitors global criminal trials for human rights violations. At HLS, she has worked on the International Law Journal and been an active member of HLS Advocates for Human Rights. She holds a B.A. from Bowdoin College in Government & Legal Studies and Russian. 

Congratulations to all of our summer fellows and best of luck to all the HLS students interning abroad this summer!

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April 6, 2022

CDC Ends Use of Public Health Law to Deny Rights of Asylum Seekers

Posted by Kai Mueller

 

On April 1, the Centers for Disease Control and Prevention (CDC) ordered the termination of the “Title 42” procedure, a method originally created by the Trump administration at the outset of the Covid pandemic to deport asylum seekers without hearing on supposed public health grounds. The termination is to go into effect on May 23, 2022. The termination of the Title 42 procedure has been long overdue.

The consequence of the Title 42 process had been a circumvention of immigration laws that protect the rights of asylum seekers who face risk of persecution or torture in their countries of origin. This CDC order resulted in border agents expelling thousands upon thousands of migrants without taking into account the irreparable harm that may await them.

The Biden Administration had kept this rule in place and used it over 1.2 million times to block migrants from seeking safety in the United States despite criticism that the policy improperly relied on the Covid-19 crisis to violate legal protections guaranteed to refugees under both U.S. and international law.

On September 16, 2021, a U.S. District Judge had granted a preliminary injunction against expulsion of migrant families without any hearing, in response to a lawsuit filed by the American Civil Liberties Union and others.  After a stay pending appeal, the D.C. Circuit affirmed a narrower version of the injunction on March 4, 2022, holding that the public health law did not override statutory protection against return to a country where an asylum seeker was likely to be persecuted.  The injunction followed mounting pressure from immigrant rights groups and voices in academia, including amicus briefs co-submitted by Harvard Law Human Rights Program Director Gerald L. Neuman and Deborah Anker, Founding Director of the Harvard Law Immigration and Refugee Clinic, to end the Title 42 policy.  The April 1 order of the CDC does not admit the illegality of the Title 42 process, but it would terminate it altogether, subject to the possibility of later reactivation.  

It has long been clear that the severe violations of asylum seekers’ rights caused by Title 42 outweighed the purported health benefits related to pandemic control. Hence, the Biden administration’s repeated defense of this regressive Trump-era policy has been a disappointment to those who had hoped for a more humane and rights-based policy toward refugees and immigrants. Regrettably, the termination order itself may be challenged in other courts.

***

For further information regarding the litigation of the Title 42 procedure, you can watch the webinar “Abusing Public Health Powers at the Border: Litigating “Title 42” Deportations Before the Inter-American Commission on Human Rights” organized by HRP on November 8, 2021, below.

 

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March 28, 2022

Another Trump Legacy That Won’t Give Up

Posted by Gerald L. Neuman

It appears that on April 1, Harvard Law School will be hosting a lecture by Peter Berkowitz, formerly the Executive Secretary of the Trump Administration’s “Commission on Unalienable Rights” (CUR), whose appalling Report has been repudiated by the Biden Administration. The lecture, entitled “Reflections on the Commission on Unalienable Rights,” is presumably part of the ongoing efforts to keep alive the CUR’s misguided project of reorienting and reducing international human rights law, like his presentation at a November 2021 conference at Notre Dame.

While the CUR Report was evidently a compromise document, its overall message was dismissive and hostile toward the current systems of international human rights law.  Secretary of State Mike Pompeo had convened the commission in order to weaken respect for human rights law, and cut it back to eighteenth-century principles.  The Report favored letting each country give treaty provisions the meaning that it prefers consistent with its own traditions. 

The project was not only inward-focused.  Pompeo’s State Department had the Report translated into the other five UN official languages (Arabic, Chinese, French, Russian and Spanish) and also into Farsi and German.  It actively promoted the report at the United Nations and in other countries, thereby encouraging autocrats and right-wing populists abroad to follow its example.  Just what the world needs at the present historical moment.

Harvard’s association with the CUR, which was chaired by a faculty member, is regrettable but the University has also been active in critique.  For a fuller set of “reflections” on the CUR Report, I can recommend the panel held by the Human Rights Program in September 2020, or this article by one of the participants.

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March 25, 2022

International Human Rights Clinic Files Supreme Court Amicus Brief on Behalf of International Scholars in Jam v. IFC

This week, Olivia Klein from the Office of Clinical and Pro Bono Programs published a feature on the IHRC clinicians and students that worked during the January term on the amicus brief submitted behalf of international scholars to the Supreme Court in Jam v. International Finance Corporation (IFC). Read about their intensive collaboration in the drafting and submission process and their hopes for what happens next: https://clinics.law.harvard.edu/blog/2022/03/international-human-rights-clinic-files-supreme-court-amicus-brief-on-behalf-of-international-scholars-in-jam-v-ifc/.

International Human Rights Clinic Team, left to right starting from back: Jayee Malwankar, Cindy Wu, Beatrice Lindstrom, Ellie Abramov, Ariella Katz, Madison Ferris

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March 23, 2022

Bonnie Docherty, Clinic’s Associate Director of Armed Conflict and Civilian Protection, testifies before Congressional subcommittee about weapons use in Ukraine

Posted by Bonnie Docherty

On March 16, 2022, Bonnie Docherty testified at a House Foreign Affairs Committee, Subcommittee on Europe hearing about early signs of of war crimes and human rights abuses committed by the Russian military during the full-scale invasion of Ukraine. She described Russia’s use of cluster munitions and explosive weapons in populated areas, highlighted the effects of the indiscriminate attacks, and called on the United States to condemn Russia’s actions and improve its own policies with regard to these weapons.

Watch Docherty’s testimony before Congress below.

To read Docherty’s written testimony, click here.

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March 23, 2022

Russia’s Use of Cluster Munitions and Other Explosive Weapons Shows Need for Stronger Civilian Protections

Posted by Bonnie Docherty

This article was first published on Just Security.

In the current armed conflict in Ukraine, Russian forces have relied heavily on two types of weapons that are notorious for the unacceptable and often unlawful harm they inflict on civilians. The weapons are cluster munitions, which have been banned by most countries in the world, and explosive weapons with wide area effects, which when used in populated areas are among the major causes of civilian casualties in contemporary armed conflict.

Attacks with these weapons have already killed and injured hundreds of civilians, turned buildings into rubble, and led to mass displacement. Judging by the experience of past conflicts, they will most likely also leave Ukraine with a legacy of harm that lingers long after active hostilities end.

Cluster Munitions

Cluster munitions, large weapons that contain dozens or hundreds of smaller weapons called submunitions, endanger civilians for two reasons. First, they have a wide area effect because they spread their submunitions over a broad footprint, commonly the size of a football field.  These submunitions cannot distinguish soldiers from civilians when used in populated areas. Second, many of their submunitions do not explode on impact, becoming de facto landmines that pose threats to civilians for months, years, or even decades after a conflict. These so-called “duds” are frequently detonated by children who think they are toys, farmers who hit them with their plows, or refugees who return home.

The immediate harm caused by cluster munitions has already been evident in Ukraine. Human Rights Watch (where I am a senior researcher) documented a strike by Russian forces near a hospital in Vuhledar in the Ukraine-controlled Donetska region on Feb. 24. A 9M79-series Tochka ballistic missile delivered a 9N123 cluster munition warhead, containing 50 submunitions. The attack killed four civilians and injured another 10, including six healthcare workers. It damaged a hospital building, an ambulance, and civilian vehicles.

Four days later, on Feb. 28, Russian forces launched 9M55K Smerch cluster munition rockets in three neighborhoods of Kharkiv, Human Rights Watch found. Each of these rockets, which are often fired in volleys of 12, carries 72 9N235 submunitions. The United Nations reported nine civilian deaths and 37 injuries in attacks across the city that day.

Russian forces launched Smerch and Uragan cluster munitions into the city of Mykolaiv on Mar. 7, 11, and 13, reportedly killing nine civilians in line at a cash machine on the last day alone, according to more recent Human Rights Watch research. Other organizations and journalists have also reported cluster munition attacks in Ukraine.

International humanitarian law (IHL)’s rule of distinction requires parties to a conflict to distinguish between civilians and combatants and between civilian objects and military objectives. The use of cluster munitions, at least where civilians may be present, violates this rule. Human Rights Watch and others argue they are inherently indiscriminate. At the time of attack, the wide-area effect of these weapons prevents them from distinguishing between combatants and non-combatants. In addition, the unexploded submunitions they leave behind makes them indiscriminate because their effects cannot be limited. Attacks using cluster munitions in populated areas may also violate the principle of proportionality, which prohibits attacks in which expected injury to civilians or damage to civilian objects is excessive in relation to anticipated military advantage.

The people who order or carry out cluster munitions attacks against civilians or civilian objects with criminal intent—that is, willfully or recklessly—are responsible for war crimes.

Due to the unacceptable harm cluster munitions cause and their indiscriminate nature, the 2008 Convention on Cluster Munitions bans their use, production, transfer, and stockpiling. Although Russia and Ukraine have not joined the treaty, 110 countries are party, including most NATO countries (although not the United States).

The convention also obligates each state party to “promote the norms it establishes and … make its best efforts to discourage States not party to this Convention from using cluster munitions.” In compliance with this provision, at least 15 states parties have condemned or expressed concern about Russia’s use of cluster munitions in Ukraine.

The president of the Convention on Cluster Munitions, which is currently the United Kingdom, along with the NATO Secretary-General, the UN High Commissioner for Human Rights, and the European Union have also condemned the use of cluster munitions in Ukraine.

Explosive Weapons in Populated Areas

While cluster munitions are especially horrific for civilians, they are just one type of explosive weapon. The broader category of explosive weapons, which encompasses artillery shells, mortar rounds, rockets, missiles, enhanced blast (aka thermobaric) weapons, and aerial bombs, among others, has caused the bulk of the conflict-related damage in Ukraine.

The use of explosive weapons in populated areas has grave humanitarian consequences both during and after attacks. Those effects are magnified when the weapons have wide area effects because: they have a large blast or fragmentation radius; they are inaccurate; they deliver multiple munitions at once (e.g., cluster munitions); or they have a combination of the above.

Russia’s bombing and shelling of Ukraine’s cities and towns has taken a physical and psychological toll on the civilian population. According to Human Rights Watch, Russian artillery shelling and airstrikes killed or injured  more than 450 civilians in the city of Kharkiv in the first 11 days of the conflict. The attacks have also leveled homes, apartment buildings, and other primarily civilian structures and infrastructure, and damaged the environment.

The costs of this method of war, however, extend beyond its direct effects. The use of explosive weapons with wide-area effects in populated areas also causes indirect and reverberating effects. The destruction of infrastructure can interfere with essential services and in turn infringe on an array of human rights.

In 2016, I co-authored an in-depth report on the effects of explosive weapons’ use on health care in the earlier conflict in eastern Ukraine, which was published by Harvard Law School’s International Human Rights Clinic (where I teach) and PAX. We found, for example, that damage to power plants and communication lines seriously affected hospitals and the provision of health care, and thus undermined the right to health. Such reverberating impacts will almost certainly be more severe in the current – much larger – conflict.

The use of explosive weapons in populated areas also exacerbates displacement. As of Mar. 18, more than three million people had fled Ukraine as a result of the conflict, according to the UN Refugee Agency (UNHCR). The attacks on urban centers with explosive weapons are one of the driving factors.

In a statement to the UN Security Council, a representative from the UN Office for the Coordination of Humanitarian Affairs (OCHA) noted that many of these effects were already being felt by Feb. 28. “As we all feared, civilians are already paying the price,” he said. “The scale of civilian casualties and damage to civilian infrastructure, even in these very early days, is alarming.”

Explicitly highlighting the dangers of the use of explosive weapons with wide-area effects, he continued, “Civilians will undeservedly suffer the most from these attacks on densely populated urban centres. . . .  And the longer this goes on, the greater the cost will be for civilians.”

Using  explosive weapons with wide-area effects in populated areas can be expected to result in indiscriminate attacks with a high loss of civilian life. The patterns of harm to civilians that these weapons cause, including their reverberating effects, are well documented and heighten concerns that attacks will also be disproportionate. In addition, the use of explosive weapons with wide area effects in populated areas is generally counter to the IHL duty to take all feasible precautions to minimize civilian harm. Those who are responsible for using explosive weapons unlawfully with criminal intent are committing war crimes.

While explosive weapons, unlike cluster munitions in particular, are not banned by any instrument of international law, countries have been working toward a political declaration that addresses the humanitarian consequences of their use in populated areas. The next round of negotiations of this Ireland-led process, which had been postponed by the Covid-19 pandemic, are now scheduled for April 6-8.

The events in Ukraine underscore how important it is for countries to include in the declaration a commitment to avoid the use of these weapons in populated areas. This political commitment, although non-binding, would set important standards for dealing with a deadly practice of modern war.

The concern regarding Russia’s use of explosive weapons in Ukraine’s urban centers from countries including Austria and Ireland, and as stated in the UN Human Rights Council resolution of Mar. 4, demonstrates the growing support for these standards.

Cease and Condemn

The horrific images and accounts emerging from Ukraine offer a glimpse of the immediate harm that Russian cluster munitions and explosive weapons are inflicting on Ukraine’s civilians. Documentation of the effects of these weapons in past conflicts suggest the harm will be long term.

To prevent furthering the humanitarian crisis, Russia should immediately cease the use of cluster munitions and avoid using explosive weapons with wide area effects in populated areas. Other countries and the United Nations should support documentation efforts to ensure domestic and international accountability for any violations of IHL and international human right law and in particular support the International Criminal Court’s Ukraine investigation.

Other states and the United Nations should also explicitly condemn the use of cluster munitions and explosive weapons with wide area effects in populated areas. Such focused criticism will not only increase pressure on Russia to change its practices in Ukraine. It will also strengthen the international norms against these means and methods of war.

It will bolster the Convention on Cluster Munitions, increasing its influence among countries that have not already joined; encourage the adoption a robust political declaration on explosive weapons in populated areas; and in so doing, help improve protections for civilians in future conflicts.

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