Blog: Human Rights and the Environment
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July 12, 2021
Testing the Water: Using ‘OPERA’ to Assess How the Right to Water in India Is Protected in a Changing Climate
Posted by Laura Bach
Editor’s Note: This blog was first published by the Center for Economic and Social Rights (CESR). It highlights research being conducted by the Clinic and its partners using ‘OPERA’, an analytical tool developed to aid advocates monitoring progress on economic and social rights.
As a second-year law student enrolled this spring in the International Human Rights Clinic at Harvard Law School, I joined a team of four focused on analyzing the Indian government’s obligation under international human rights law to ensure equal enjoyment of the right to water by all. Although we were working in partnership with CESR and Nazdeek, a Delhi-based legal empowerment organization—two groups well acquainted with issues of socio-economic rights—the prospect of assessing these rights in the context of climate change felt overwhelming.
What, specifically, must a government do to meet its human rights obligations? What should be made of government inaction? Is the standard the same for all countries? A related thread followed shortly after that inquiry: Does climate change and its impact on water change this calculus? As someone who went to law school in part as a result of being, well, bad at science, this line of questioning was beyond my comfort zone!
Luckily for me, CESR’s OPERA framework served as a useful guide, shepherding my team’s research while ensuring we had the flexibility to set many of our own parameters. OPERA—which stands for Outcomes, Policy Efforts, Resources, and Assessment—helps answer exactly these kinds of questions. Grouping them around four dimensions, it prompts researchers to gather information corresponding with the human rights standards in the International Covenant on Economic, Social and Cultural Rights (ICESCR).
A team begins by assessing the human rights outcomes experienced by residents of a country. This stage asks: From the perspective of rights holders, what is wrong or problematic? In Delhi, for example, water available for domestic purposes like drinking and cooking is variable, with most populations having water for a few hours a day. Water is less available to certain communities, like those living in informal settlements, who are not connected to pipes and must rely on tanker trucks, community taps or wells, which provide an irregular supply of water that is more expensive. The effects of climate change, such as increases in temperature, high-intensity rainstorms, floods, and droughts, further reduce water availability. It is diminishing the levels of water in municipal reservoirs and contaminating surface and groundwater sources. It can also make the resource more costly, because that reduced supply meets increased demand as temperatures continue to rise.Continue Reading…
April 21, 2021
Posted by Cindy Wu JD'22
You may have seen images of Hindu devotees immersing themselves in large clouds of white foam floating through the Yamuna River in Delhi, India. But what may seem otherworldly belies something much more sinister: a river of deep religious and life-giving significance for millions of people, teeming with toxic industrial and residential pollutants.
Alongside three other Harvard Law School students and our Clinical Instructor, Aminta Ossom, I have spent this past semester studying the relationship between climate change and inequality. This Earth Day, our team is thinking about how climate change and human activities are working in tandem to degrade and deplete the Yamuna River. This environmental harm has significant impacts on the enjoyment of the right to water, as well as on other rights, like cultural rights and the rights to adequate health and livelihoods.
What is the Yamuna?
The Yamuna—a tributary of the Ganga River—is critical both in Hindu culture and as a source of livelihood. Millions of Hindus worship the river as a goddess, and many make an annual pilgrimage, where they immerse themselves to wash away their sins and to bring health and prosperity. Besides its religious significance, the Yamuna supports the livelihoods of farmers, fisher-folk and boatsmen and is a crucial source of water for 57 million people, especially for those in the Delhi region.
April 21, 2021
Posted by Lavran Johnson JD'22
The United States has an environmental human rights problem. Across the country, communities of color and lower socioeconomic status are disproportionately located close to chemical processing plants, power plants, and other industrial facilities and shoulder the burden of domestic environmental contamination. Air and water quality standards frequently fail to protect these communities, leading to detrimental health impacts and continued contamination. Although the situation is improving, state and federal agencies have historically failed to reduce the cumulative burdens on these communities. Most of our environmental laws provide protective regimes based on available technology and economic feasibility. Although these regimes place limits on pollution, they reflect a presumption that industries have a general right to pollute. Industry’s right to pollute is constrained by environmental law; but we need a shift away from industrial rights and towards a human right to a clean environment.
After years working as an outdoor educator, I came to law school to focus on environmental law, committed to finding ways through policy and litigation to better protect the environments that had enriched my life. It was in the classroom — and not outside — where I started to build the connections that drive my current work. My torts class, where we studied Rob Bilott’s prosecution of DuPont for chemical pollution, helped to shift my focus towards work that would protect both the environment and the individual people who rely on it. Later, International Human Rights Clinic Co-Director Tyler Giannini exposed me to some of the many ways that environmental exploitation and human exploitation are entangled, but it was working over the summer on an administrative complaint to the Environmental Protection Agency that really crystallized my understanding: environmental justice is fundamentally a human rights issue. All people should be protected from pollution that poses a serious and permanent risk to their health, and historical deprivation and prejudice should not be allowed to undermine that basic protection.
This spring, I entered the International Human Rights Clinic hopeful that I could gain a better grasp of how rights are understood and leveraged, but unsure whether I would be able to do environmental work. I’ve been very lucky to work with Bonnie Docherty and three excellent team members to prepare recommendations for the First Meeting of States Parties to the Treaty on the Prohibition of Nuclear Weapons (TPNW). Bonnie, who is the Associate Director of Armed Conflict and Civilian Protection, has worked for decades to highlight the detrimental effects of weapons on both humans and the environment. The TPNW, which Bonnie and previous clinical students helped to shape, reconceptualizes nuclear disarmament by shifting from a tactical focus—one in which states play their nuclear arsenals off each other to maintain geopolitical order—to a humanitarian focus—one in which states must address the ongoing human suffering caused by the use and testing of nuclear weapons. The TPNW, which requires total disarmament, also creates obligations that respond to the legacy of nuclear weapons use and testing through victim assistance and environmental remediation. In places like the Marshall Islands, where many still suffer the effects of the nuclear testing that happens over 60 years ago, these obligations are critical.Continue Reading…
December 7, 2020
Posted by Nathalie Gunasekera JD'21
“The ideals of the United Nations – peace, justice, equality, and dignity – are the beacons to a better world.” UN Secretary-General António Guterres made these remarks during September’s UN General Assembly ceremony, which commemorated the organization’s 75th anniversary. These ideals are enshrined in the UN Charter, and yet, they been severely tested by the organization’s recent history in Kosovo. For more than two decades, the UN has refused to accept legal responsibility and deliver justice to Roma, Ashkali, and Egyptian minorities who were forced to live in UN-run lead contaminated refugee camps.
In September 2020, the UN Special Rapporteur on Toxics Dr. Marcos Orellana presented his predecessor’s report on lead poisoning in Kosovo. He delivered a clear message: inaction must end, and justice must be delivered.Continue Reading…
September 30, 2020
Confronting conflict pollution: new principles argue for greater assistance for victims of toxic remnants of war
Posted by Dana Walters
Between 1946 and 1958, the United States conducted 67 nuclear tests in the Marshall Islands, irreparably damaging the environment and disrupting the lives of the people who called the area home. When Bonnie Docherty ’01, associate director of armed conflict and civilian protection in Harvard Law School’s International Human Rights Clinic, visited the islands in March 2018, she spoke with survivors who suffered from immediate and long-term health effects and who remain displaced decades after the tests.
“Many survivors in the Marshall Islands described having no warning that the tests were going to occur. Then there was blinding light. The sky turned red and various other colors, and then white, radioactive ash fell everywhere,” Docherty said. “Eventually, the U.S. military came and evacuated the communities. For years, as some people would try to return to their home, they did not know if they were still at risk or if the land was safe. There was a remarkable lack of information distributed to those who were most affected.”
The experiences of survivors in the Marshall Islands, as well as other places where armed conflict and military activity have harmed the environment, provided an impetus for “Confronting Conflict Pollution: Principles for Assisting Victims of Toxic Remnants of War,” a major report released today. Co-published by the International Human Rights Clinic and the Conflict and Environment Observatory (CEOBS), the report establishes a new framework for addressing the human harm resulting from the environmental consequences of conflict.
The report lays out 14 principles that cover a range of harm and assistance, establish a mechanism for shared responsibility, identify key implementation measures, and apply overarching human rights norms. The report also includes a detailed commentary, explaining the principles and providing precedent for them. The overarching goal of the principles is to ensure that victims’ needs are met and that they can realize their human rights.
“There have been huge advances in developing legal frameworks for protecting the environment in relation to armed conflicts in the last decade,” said Doug Weir, research and policy director at CEOBS. “The principles help fill a clear gap in clarifying how states and the international community should respond to the consequences of environmental degradation on communities.”
Weir and a panel of other experts joined Docherty for an online launch event on September 30.
The report adapts the concept of victim assistance, originally designed to deal with explosive weapons, to conflict-related pollution, such as that from nuclear weapon use and testing, oil well fires in Iraq, or the bombing of industrial plants in Ukraine.
Docherty began the process of drafting principles regarding toxic remnants of war with Weir and then-Clinical Fellow Rebecca Agule ’10 in fall 2016. After taking a short break to assist the Nobel Peace Prize-winning International Campaign to Abolish Nuclear Weapons (ICAN) during the negotiations of the historic Treaty on the Prohibition of Nuclear Weapons (TPNW), she returned to the project in fall 2018 with an exceptional team of clinical students: Matthew Griechen ’19, Daniel Levine-Spound ’19, and Susannah Marshall ’19. Docherty’s experiences with the TPNW, the first treaty to require assistance for victims of toxic remnants of war, informed the clinic’s principles.Continue Reading…
September 9, 2013
Clinic and Partners Release Book Criticizing Chile for Failure to Meet International Obligations Towards Indigenous Peoples
Posted by Daniel Saver, JD '12, Skadden Fellow, Community Legal Services, East Palo Alto
Jointly with Stanford Law School, the Universidad Diego Portales, and the Universidad de Los Andes, the International Human Rights Clinic released a book today about the consultation rights of indigenous peoples in Chile. The book critiques the Chilean government’s failure to guarantee indigenous peoples’ right to free, prior, and informed consultation, an international legal obligation Chile agreed to when it ratified International Labor Organization Convention 169 in 2008. See below for the full press release in English, then in Spanish:
Chile Fails to Meet International Obligations Towards Indigenous Peoples, Human Rights Experts Find
Book by international team of human rights experts documents violations of indigenous peoples’ right to free, prior, and informed consultation
September 9, 2013, Santiago, Chile – Nearly five years after ratifying the International Labor Organization Convention 169 (“ILO 169”), Chile continues to violate indigenous peoples’ right to free, prior, and informed consultation, according to a book released today by human rights experts in the Consorcio Norte-Sur. The Consorcio is a partnership between Harvard Law School, Stanford Law School, the Universidad Diego Portales (Chile), and the Universidad de Los Andes (Colombia).
The Spanish-language book, titled “No Nos Toman en Cuenta” (“They Don’t Consider Us”), provides the most comprehensive review of the consultation rights of Chile’s indigenous people to date. The book examines several ways that the Chilean government has failed to guarantee indigenous peoples’ right to free, prior, and informed consultation, including the government’s failure to implement international norms within its domestic legal system. The book also features in-depth case studies that document specific rights violations caused by salmon farming projects in indigenous territory in the south of the country.
“Indigenous peoples’ right to free, prior, and informed consultation guaranteed by ILO 169 is intended to ensure that these historically marginalized groups are able to participate in a meaningful way in decisions that directly affect them,” said Jorge Contesse, former director of Universidad Diego Portales’ Human Rights Center, now a law professor at Rutgers School of Law-Newark. “The failure to implement this right not only violates Chile’s international legal obligations, but also perpetuates distrust between indigenous peoples and the Chilean government, fueling conflict between the two.”
The case of the salmon hatcheries studied in the book highlights this dynamic. Researchers found that often the only consultation-like procedures were conducted by private investors, who provided special benefits for select members of indigenous communities in return for their support. Community members told investigators that this impermissible abdication of the state’s obligation to consult created conflict and upset traditional leadership structures and decision-making processes.Continue Reading…
March 28, 2013
Recap of International Law Journal Panel: Environmental, Human Rights, and Development Issues in International Investment Arbitration
Posted by Cara Solomon
A few weeks ago, as part of the 2013 Harvard International Law Journal symposium, Tyler moderated a panel entitled “Addressing Environmental, Human Rights and Development Issues in International Investment Arbitration.” Cecilia Vogel wrote a recap of the panel, which ILJ recently posted on its site. Thanks to ILJ for letting us repost it here:
ILJ’s 2013 symposium wrapped up with a lively discussion about the role of environmental and human rights in international investment arbitration. Tyler Giannini, Clinical Professor of Law for the Human Rights Program and International Human Rights Clinic at HLS, moderated the panel in the form of a question and answer session. The panelists, hailing from across the globe and with experience as counsel, arbitrators, advisers, and academics, represented a variety of international viewpoints on the topic.
Professor Giannini began the conversation by asking panelists to address how the international investment regime relates to or differs from the human rights regime. Professor Joost Pauwelyn explained that protections for international investors and human rights do share a common root, although investment protection began first. Both regimes seek the protection of rights against abuse. However, Professor Pauwelyn drew the distinction that the investment regime’s purpose—to facilitate investment—is more utilitarian. The investment regime only protects certain classes of people, i.e. alien investors of certain nationalities, while we are all born into human rights. Unlike the rights of international investors, human rights are enforced in a court system and their enforcement internationally first requires exhaustion of domestic remedies. Professor Pauwelyn also asked: With an eye to determining who can waive investor rights, are investor rights individual rights, like human rights, or are they derivative rights from the state? Finally, Professor Pauwelyn expressed his concern that small investors cannot adequately access protection in the costly investment regime and that this may negatively impact the system’s credibility.
Panelists next addressed the role of human rights and environmental law in the current investment regime. Professor Attila Tanzi explained that respondent states have been reluctant to raise environmental law and human rights arguments out of the concern that they might enhance the position of potential claimants before domestic courts. According to Professor Tanzi, the current trend in international investment arbitrations with respect to human rights and environmental law is “compatibility in separation,” meaning it is the obligation of the state to carry out both. Professor Tanzi hopes that investment arbitrations can move toward “compatibility in integration.” Mr. Gómez-Pinzón responded that, as an arbitrator, he would apply environmental or human rights law if it was applicable to the case. On the other hand, professor Boisson de Chazournes called for political elites negotiating investment treaties to take a greater role in incorporating human rights and environmental law because arbitrators have little opportunity to maneuver to include those areas of law in the current regime. Professor Pauwelyn responded that avenues to incorporate more human rights and environmental law in the investment regime already exist, such as Article 42 of the ICSID Convention (referring “to such rules of international law as may be applicable”) but that arbitrators need greater expertise in this area of law.
Addressing the role of soft law human rights and environmental law instruments in foreign private investment, Professor Boisson de Chazournes questioned the legal standing and role of these instruments in the interpretation of customary international law, given they do not reflect state practice but private corporate practice. She suggested that they can perhaps be complementary tools to assist filling in international law gaps. Professor Pauwelyn looked to arbitrators current references to the International Bar Association guidelines as a potential model for the incorporation of human rights and environmental law soft law instruments into the investment regime.
Finally, commenting on the future of investment law’s relationship to environmental and human rights, Mr. Gómez-Pinzón predicted that the evolution would be slow and cautious, with the lead taken by states negotiating bilateral investment treaties. There has already been a greater tendency for transparency and amicus participation in arbitrations, but private companies will likely resist increasing transparency. Judge Brower, the symposium’s keynote speaker, with the last word, cautioned the panel against engaging in a theoretical discussion of a problem that no one has found to yet exist. Noting that the international investment regime has been evolving for years, he encouraged adopting a long view of the system and emphasized that if anything, loss of investor confidence, would be the ruin of the system.
March 24, 2013
Posted by Tyler Giannini
Earlier this month, the recently appointed UN Independent Expert on Human Rights and the Environment, John Knox, presented his preliminary report to the Human Rights Council. For those of us who have worked in the field of human rights and the environment since the early 1990s, the fact that this report is even being presented to the Council is a major advance.
In the early 1990s, the mention of a link between human rights and the environment raised eyebrows in many circles. Today, that’s no longer the case. Instead, the international community and the Independent Expert have moved on to other questions, such as: what is the precise legal relationship between human rights and the environment? In his comments before the Human Rights Council, Knox described an urgent need for such clarification, saying it was necessary “for States and others to better understand what those obligations require and ensure that they are fully met, at every level from the local to the global.”
Within the arena of human rights and the environment, we have seen specific issues gain major traction over the past two decades. Take the right to water. A recent seminar organized with Prof. Mathias Risse of Harvard Kennedy School and Sharmila Murthy of the Carr Center for Human Rights Policy shows just how many disciplines (law, philosophy, urban planning, geography, engineering, public health and economics) today think about the right to water. We designed the seminar to provoke debate and discussion around four themes: nature of the rights to water and sanitation; content of the human rights to water and sanitation; strategies for accountability; and community perspective and bottom-up critique of human rights. It did just that. Our final report from the seminar shows just how far the discourse around human and the environment has come.
March 7, 2013
Posted by Cara Solomon
For those of you in need of an end-of-the-week intellectual treat, tomorrow our clinicians are stepping in to moderate discussions on some of the most pressing issues of the day:
Tyler, our Clinic’s co-director, will moderate a panel at the International Law Journal Symposium on “Addressing Environmental, Human Rights and Development Issues in International Investment Arbitration.” That panel, which runs from 4:15- 5:30 p.m. in Wasserstein 204, will feature Laurence Boisson de Chazournes, Professor of International Law at the University of Geneva; Joost Pauwelyn, Nomura Visiting Professor of International Financial Systems at Harvard Law School, Professor of International Law at Graduate Institute of International & Development Studies at Geneva; and Enrique Gomez-Pinzon, Partner at Holland & Knight LLP; and Attila Tanzi, Professor of International Law at the University of Bologna.
And Meera, our Clinical Advocacy Fellow, will moderate an American Bar Association tele-conference entitled “The Syrian Refugee Crisis: Perspectives from the US, UN, and Civil Society.” That panel, from 12- 1:30 p.m., will feature Zaid Hydari, of the Helsinki Citizens Assembly; Jana Mason, of the United Nations High Commission on Refugees; Jennifer Williams, Bureau of Population, Refugees, and Migration, U.S. Department of State; and a Syrian refugee activist TBA.
March 29, 2012
Posted by Tyler Giannini
Last week, on March 20, the UN Human Rights Council adopted a resolution to appoint an Independent Expert on Human Rights and the Environment. The connection between human rights and the environment gained attention in the UN system around the time of the Earth Summit in Rio de Janeiro in 1992. As someone who has worked in the field since the 1990s, I have seen firsthand the efforts over the past two decades to show how human rights and environmental protections are often intertwined. With Rio+20 on the horizon in June, the appointment of an Independent Expert is potentially a significant advance that could bring more attention to the linkages, along with the upcoming summit.
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