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July 29, 2022

Seeking Accountability for North Korean Atrocities: An Interview with Erika Suh Holmberg, Monica Jung Hyun Lee, Jasmine Shin, and Ethan Shin

Editor’s note: This article was first published on Harvard Law School Advocates for Human Rights Spotlight Series page.

HLS Advocates for Human Rights is proud to present the Spotlight Series, a forum for essays and opinion pieces written by Harvard Law School students and alumni calling attention to pressing domestic and international human rights issues. If you are a Harvard Law student or alumnus/a and would like to contribute a piece to Spotlights, please contact Ariella Katz ([email protected]) or Dane Underwood ([email protected]).

Please note that the views and opinions expressed in Spotlight essays are those of the authors and do not necessarily reflect the official policy or position of HLS Advocates for Human Rights.

Spotlight Series logo, Advocates for Human Rights

The past and ongoing atrocities committed by the Kim regime in North Korea represents one of the most dire human rights crises in recent decades. Three recent HLS graduates— Erika Suh Holmberg (J.D. ’22), Monica Jung Hyun Lee (J.D. ’22), and Jasmine Shin (J.D. ’21), channeled their existing passion for and experience with advocating for change in North Korea by leading the “North Korea Accountability Project” with HLS Advocates for Human Rights project, in partnership with the Seoul-based human rights NGO Transitional Justice Working Group (TJWG) and under the continuous supervision of TJWG legal counsel Ethan Hee-Seok Shin (LL.M. ’13). Since Jasmine created the Accountability Project in Spring 2021 and led its first semester-long project team, Erika and Monica co-led two subsequent project teams in Fall 2021 and Spring 2022; a total of eight other HLS students participated as team members over the course of the three semester-long project teams.

In Spring 2021, under Jasmine’s leadership, the team prepared a memo for TJWG concerning the possible avenues for civil litigation under the Foreign Sovereign Immunities Act against the North Korean government and its officials in U.S. courts by North Korean defectors. In Fall 2021, the team prepared a memo concerning recommendations on how to strengthen the North Korean Human Rights Act of 2004 as Congress considers its reauthorization. Most recently, in Spring 2022, the team researched numerous recent UN-mandated investigative mechanisms targeting grave human rights violations in other countries as a reference for potential North Korea-related mandates in the future.

Erika, Jasmine, Monica, and Ethan recently shared their reflections on the project with Sondra Anton (J.D. ’22), Advocates’ 2021-22 Co-President. Their conversation has been edited for brevity and clarity.

Q: Why did you decide to create and lead a new Advocates project specifically about North Korea, and how did the project initially get started?

Jasmine Shin [JS]: “My grandfather was originally from North Korea, but he was forced to escape to South Korea shortly before the Korean War because military forces accused his family of being anti-communist and burned his home down. Because of this family history, I came to HLS with a specific vision of using my legal career towards bringing justice to victims of human rights violations in North Korea. Unfortunately, during my first two years at HLS, there were no North Korea-specific projects in SPOs or clinics. I knew I wanted to change that before I graduated, and I finally got around to launching a new Advocates project on North Korea during my last semester at HLS. The timing was serendipitous – our project partner, the Transitional Justice Working Group (whose work I’d been following for years), had recently reached out to the HLS International Human Rights Clinic looking for students to support their work. As soon as I heard about this, I floated the idea of starting a new Advocates project on North Korea with TJWG to the Advocates Executive Board.”

Erika Suh Holmberg [EH]: “Adding to the serendipitous nature of the project’s inception, I found out about the project because Jasmine attended a Zoom event in which I had mentioned in passing the fact that the North Korean human rights crisis is my longtime passion issue that I hope to continue to work on in my future legal career. After that Zoom event, Jasmine reached out to me to let me know about her forthcoming Advocates project. We were both so excited to finally find fellow HLS students who share our dedication to this specific cause, and I knew that I had to become a part of the new team no matter what, since I had also been hoping to pursue North Korea-specific human rights advocacy work during my time at HLS.

Similar to Jasmine, my interest in North Korea issues began due to my personal familial connection– my maternal grandfather’s side of the family was unable to make it out of what is now North Korea when the Korean War started, and I started to fully understand the severity of the ongoing human rights crisis when I started volunteering with the NGO Liberty in North Korea (LiNK) in high school. I continued volunteering for LiNK in college, where I was able to actually meet several North Korean defectors who also attended Columbia at the time (including the incredible Seongmin Lee), and where I wrote my thesis on the plight of North Korean defectors living in China. North Korea is what sparked my interest in human rights in the first place over a decade ago, so I jumped on the opportunity to join this incredible and unprecedented Advocates team as soon as I heard about it.”

Monica Jung Hyun Lee [ML]: “Like Erika, I first heard about this project through Jasmine, who was my mentor in KAHLS (Koreans at Harvard Law School). I gained an interest in advancing human rights in North Korea in college, based on my work at People for Successful COrean Reunification (PSCORE) and my paper, “The Psychology Behind Discrimination Against North Koreans in South Korea.” When I heard about this project, I was incredibly excited to join a team effort that aligns with my interest as a 2L, and to co-lead it as a 3L.”

MONICA LEE (LEFT) AND ERIKA HOLMBERG (RIGHT)
MONICA LEE (LEFT) AND ERIKA HOLMBERG (RIGHT)

Q: Did most of your project team members have background knowledge, experience, and specific interest in North Korea-related issues? Were you surprised at all at the level of interest among HLS students in the project?

EH: “It was actually a mixed bag in terms of levels of prior experience or interest in North Korea issues specifically, which actually worked out really well because Ethan was able to help us onboard everyone and make sure we were all on the same page. Some members came into the project with similarly extensive past experience on North Korea issues, such as Andrew Hong (J.D. ’23), a member of all three semester-long project teams who previously founded a non-profit org that assists North Korean defectors. Other members came into the project with particular interests and skill sets that were not North Korea-specific, but were related to the types of research and advocacy that our project involved. For example, Justin Walker (J.D. ’24), a member of our Fall ’21 and Spring ’22 project teams, had prior experience as a Congressional intern, and his understanding of how Congress operates was invaluable as he tackled researching the legislative history of the NKHRA. Leading this team has been such an honor because I met such dedicated and hardworking fellow students who shared my existing passion for North Korea-related human rights issues, and I also experienced firsthand how many students developed a deeper appreciation of the urgency of this crisis and the impact of human rights advocacy over the course of their involvement on the team.”

JS: “At first, I was nervous that there would be little interest in this rather niche human rights issue. Thankfully, a core group of five students signed up, and as cliché as it sounds, I could not have asked for a better team. … [E]ach and every member of the team was committed, engaged, and excited about this project as much as I was…. And the best part of the whole experience was that two team members, Erika and Monica, were willing to step up and continue this project the following year. My goal all along was to create an avenue through which HLS students can learn and contribute towards bringing justice in North Korea, and it gives me so much joy that this project has been and continues to be that platform.”

ML: “Being a part of this project has been one of the highlights of my HLS career. It was such a rewarding experience to virtually and physically meet other HLS students with a wide variety of backgrounds, all interested in this issue. It was a true privilege to share our passions, discuss the best ways to research with Ethan, and overall just learn so much from each other. I am so thankful that Jasmine began this project with Ethan and that I was able to co-lead it with Erika.”

Ethan Shin [ES]: “I was pleasantly surprised that each of the three projects had a good mix of Korean and non-Korean Advocates, which highlighted the fact there was a broad interest in North Korean human rights. I prefer to approach the issue from the perspective of the promotion and protection of universal human rights while recognizing the emotional attachment that the South Koreans and the Korean diaspora at large have. … Working on North Korean human rights can be rather depressing and the field is a graveyard for optimists so such level of interest gives me hope. After all, evil prevails when good people do nothing!”

Q: Ethan, what were some highlights of your experience working with Advocates on the project?

ES: “It was exciting to “e-meet” new members online at the start of each semester and to receive the final legal memo at the end of each semester. It is rather strange that I have never met any [team members] in person, other than Monica who visited our office [in Seoul] last summer. I am all the more thankful that everyone nonetheless has invested so much time and effort and has placed trust in me. That is why I am making every effort to see to it that [the North Korea Accountability Team’s] work is put to good use, be it litigations in U.S. courts, legislative efforts in Congress or strengthening the accountability mechanism at the UN.”


ERIKA SUH HOLMBERG (J.D. ’22)

Erika Suh Holmberg graduated from HLS in 2022. At HLS, in addition to her involvement in HLS Advocates, she also worked on two International Human Rights Clinic projects, served on the executive board of the Asian Pacific American Law Students Association (APALSA), and was an Article Editor for the International Law Journal. She spent her 1L summer as a Chayes Fellow, interning at Greater Boston Legal Services’ Immigration Unit. She majored in Political Science and East Asian Studies at Columbia University. She currently resides in Washington, D.C.

MONICA JUNG HYUN LEE (J.D. ’22)

Monica Jung Hyun Lee is a recent HLS graduate and former Project Leader of HLS Advocates for Human Rights. She graduated from Northwestern University in 2019. At HLS, she worked on various projects with the Harvard International Human Rights Clinic and the Harvard Immigration and Refugee Clinic. She spent her 1L summer as a Chayes Fellow with Advocates for Public Interest Law in Seoul, advocating on behalf of refugees.

JASMINE SHIN (J.D. 21)

Jasmine Shin is a recent HLS graduate and former Vice President/Treasurer and project leader of HLS Advocates for Human Rights. At HLS, she worked on a variety of human rights projects with the Harvard International Human Rights Clinic and Advocates, focusing on accountability for human rights violations by state and corporate actors in Myanmar, North Korea, Bolivia, Haiti, and the US. Prior to law school, she worked as a human rights researcher for the Permanent Mission of the Republic of Korea to the United Nations. 

ETHAN HEE-SEOK SHIN (LL.M. 13) 

Ethan Hee-Seok Shin is a South Korean human rights advocate. He has worked on the documentation of grave human rights violations in North Korea with a view to promoting justice and accountability. He has also been taking part in the redress campaign for the victims of Japan’s World War II-era military sexual slavery in the Asia-Pacific, in particular urging the South Korean government to institute inter-state proceedings against Japan on their behalf under the UN Torture Convention.

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July 28, 2022

Press Release: Global Coalition of Tamil and Human Rights Groups Urge Singapore’s Attorney General to Investigate Gotabaya Rajapaksa

The International Human Rights Clinic joined a coalition of groups this week calling for Singapore to investigate Gotabaya Rajapaksa’s involvement in international crimes in Sri Lanka, including mass atrocities during the 2008-2009 period that saw the end of years of conflict in the country. Rajapaksa recently resigned as president of Sri Lanka and is reported to now be in Singapore. More information about the letter to Singapore’s Attorney-General’s Chambers follows below.

Washington D.C.; July 26, 2022 — Seventeen Tamil and human rights organizations from around the world issued a joint letter today, urging Singapore’s Attorney-General’s Chambers (AGC) to investigate and, as appropriate, prosecute Gotabaya Rajapaksa for his alleged role in international crimes committed in Sri Lanka. Rajapaksa, Sri Lanka’s former president and defense secretary, fled to Singapore after being ousted in Sri Lanka and is reportedly in Singapore on a Short Term Visit Pass.

The letter was signed by: People for Equality in Relief in Lanka (PEARL), Adayaalam Centre for Policy Research (ACPR), Australian Centre for International Justice (ACIJ), Center for Justice and Accountability (CJA), Centre de Protections des Droits du Peuple Tamoul, Federation of Tamil Sangams of North America (FeTNA), Global Rights Compliance (GRC), Human Rights Watch (HRW), International Commission of Jurists (ICJ), International Human Rights Clinic – Harvard Law School, REDRESS, Sri Lanka Campaign for Peace and Justice, Tamil Americans United PAC, Tamil Rights Group (TRG), Transnational Government of Tamil Eelam (TGTE), United States Tamil Action Group (USTAG), and World Thamil Organisation (WTO).

“Rajapaksa stands credibly accused of committing the world’s most heinous crimes, including war crimes, crimes against humanity, and genocide. Singapore should not serve as a safe haven for individuals implicated in such abuses,” said Archana Ravichandradeva, Executive Director of PEARL. “Now that Rajapaksa is no longer shielded by immunity, Singapore must seize this remarkable opportunity to provide justice and accountability for victims and victim-survivors of Rajapaksa’s crimes.”

While Rajapaksa was Sri Lanka’s defense secretary, he oversaw Sri Lanka’s brutal military campaign against the Liberation Tigers of Tamil Eelam (LTTE). An estimated 70,000 to 169,796 people were killed in the final phase of the war. Rajapaksa personally stands accused of ordering the execution of LTTE leaders and their family members upon surrender; directing the widespread and systematic bombing of hospitals; and repeatedly asserting that civilian persons and objects were legitimate targets. The joint letter urges AGC to investigate Rajapaksa’s potential liability for these international crimes on the basis of customary international law and applicable domestic law. This letter builds upon the criminal complaint filed with AGC by the International Truth and Justice Project (ITJP) against Rajapaksa.

The full letter is available here.

For more PEARL reporting on Sri Lanka, please visit: https://pearlaction.org/.

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July 6, 2022

What the World Owes Haiti Now

Editor’s note: This article was originally published on Just Security on June 29, 2022. It is co-authored by Mario Joseph and Beatrice Lindstrom.

A recent New York Times investigation has sparked renewed conversation about how we reckon with the often-overlooked role of foreign intervention in Haiti’s founding history, especially the independence debt that France extracted from Haiti in 1823 to compensate for its loss of “property” – including enslaved people. But unjust foreign intervention in Haiti did not stop in 1823 – it continues today. For Haiti to ever see justice for the past and peace into the future, countries like the United States and France must start by changing how it treats Haiti today.

The Times’ meticulous exposé of the massive debt that France illegally extorted from Haiti after its independence demonstrates how the payments – totaling an estimated $21-115 billion – kept Haiti poor and unstable for two centuries. The investigation also documented that the U.S. Marines’ forced transfer of $500,000 in gold from Haiti’s national bank to CitiGroup in New York in 1914, and the 19-year occupation that followed, was spurred in part by pressure from Wall Street.

Haiti has a strong claim for restitution for this theft and extortion. Haiti only signed the contract for the debt in 1823 because France parked warships off the coast and threatened to invade Haiti and re-enslave its people. Reinstituting slavery was illegal at the time, so the contract for the debt was also illegal. Similarly, CitiGroup, which won the lucrative business of managing Haiti’s loans by convincing the United States to invade, may face claims for restitution of its unjust profits.

But history shows that France, the United States, and other countries whose current prosperity is built in part on a foundation of slavery and immiseration in Haiti have been unwilling to allow Haiti to pursue its claims for justice. The amount France owes Haiti is significant, but even more is at stake. If the descendants of Haitians forced to pay for their emancipation win their restitution claim, they may open the door to a long line of claims for reparations by the descendants of everyone subject to the horrors of slavery and the slave trade.

The one time Haiti seriously asked for restitution, the United States and France responded by overthrowing Haiti’s government. In 2004, then-President Jean-Bertrand Aristide was preparing documents to file a legal claim and speaking publicly about the schools, universities and hospitals that restitution would fund. Thierry Burkhard, France’s Ambassador to Haiti at the time, admitted to the Times that the two powers orchestrated the 2004 coup d’état against Aristide, which “made our job easier” to reject the restitution claim. The replacement regime, led by Interim Prime Minister Gerard Latortue, a long-time Florida resident, immediately renounced the restitution claim.

Haiti’s current government is equally unlikely to take the side of its citizens over its friends in Washington and Paris. De facto Prime Minister Ariel Henry was installed in July 2021 not through a Haitian process, but through a press release from the “Core Group” – a group of foreign governments engaging with Haiti, led by the United States and France.  The United States has continued to prop up Henry since, despite his involvement in spectacular corruption and mismanagement of the economy, his implication in last July’s assassination of President Jovenel Moïse, and his connections to gangs that are brutalizing the population. Most recently, President Joe Biden welcomed Prime Minister Henry to the Summit of the Americas in Los Angeles, refusing to apply to him the democratic standards he invoked to exclude the leaders of Cuba, Venezuela and Nicaragua.

A broad spectrum of Haitian society has repeatedly demanded that Henry step down. Haitians taking to the streets of Port-au-Prince are protesting outside the National Palace, but they are also protesting outside the U.S. and French embassies and U.N. headquarters, because they know that is where Henry’s power comes from. Meanwhile, a historic coalition of civil society organizations has come together with a shared vision for Haiti’s future. The Preamble of the Montana Accord, the founding document of the Commission to Search for a Haitian Solution to the Crisis and the most promising initiative to replace Henry, is as much a declaration of independence from foreign control as a revolt against domestic repression.

People in the United States and France who are outraged by their governments’ unjust treatment of Haiti in 1823 and 1914 can do something about it in 2022. They can start by insisting that their governments stop propping up Henry, and allow a Haitian-led solution to the political crisis to emerge. Once Haitians vote for their leaders, supporters of Haiti can stay engaged, to insist that foreign governments allow Haiti’s elected government to fulfill the mandate the voters give it. Even if the mandate includes a claim for the United States and France to return their ill-gotten gains.

About the Authors
Mario Joseph

Mario Joseph has led the Bureau des Avocats Internationaux (BAI), a public interest law firm in Port-au-Prince, Haiti since 1996. In that time, he has spearheaded the prosecution of Haiti’s dictators, represented the victims in the Raboteau Massacre trial, and represented the victims of the cholera epidemic introduced to Haiti through reckless disposal of waste at a UN Peacekeeper base.

Beatrice Lindstrom

Beatrice Lindstrom is a Clinical Instructor and Lecturer on Law at Harvard Law School, where she teaches human rights advocacy and manages projects in the International Human Rights Clinic. Prior to joining Harvard, she was the Legal Director of the Institute for Justice & Democracy in Haiti.

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July 5, 2022

IHRC Releases Joint Statement Calling U.S. Govt to Urgently Address Rising Insecurity and Gang Violence in Haiti

On June 27th, the International Human Rights Clinic released a joint statement with the Lowenstein International Human Rights Clinic and NYU Global Justice Clinic calling on the U.S. government to take urgent steps in order to address rising insecurity and gang violence in Haiti, including threats against human rights defenders. Read the full statement here.

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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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