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It Isn’t Just About Flint: Water As A Human Right in the United States

By Tanisha Canty

People are suffering from nausea, vomiting, diarrhea, parasites, hair loss, permanent neurological disorders, anemia; raw sewage pools in their yards, separated from the children’s toys by thin scraps of metal; even their livestock are diseased from grazing in sewage. When I read these descriptions, they elicited thoughts of developing countries, of remote villages in Africa and India, but certainly no place in the developed world. And then the author revealed these are the circumstances under which millions of people in the United States live daily, in Michigan, in Alabama, in Maryland, in California, and other places.  I could barely reconcile that knowledge with my perception of life in the U.S. People are losing their children and homes because they cannot afford to pay for water. For some who can afford water prices, the quality is so abhorrent that the water is essentially unusable.

The United States does not currently recognize the human right to water. The U.S. Department of State writes that “because the promotion of human rights is an important national interest, the U.S. seeks to hold governments accountable to their obligations under universal human rights norms and international human rights instruments.” A person can live at most seven days without water, but millions of people have to choose between consuming the water they have and potentially permanent illness. Without recognizing and enforcing a human right to water, we are signaling to those individuals that being put in the position of choosing between good health and consuming water is acceptable. But, because that choice, and all similar choices regarding access to quality water, are unacceptable, we must examine that U.S. government’s contention that it is not bound by the human right to water.

According to the International Court of Justice (ICJ Treaty, Article 38), the three primary sources of international law obligations are international conventions, international custom (termed customary international law), and the general law principles recognized by civilized nations. The U.S. position is that obligations are not binding until the treaty is ratified. Ratifying a treaty creates international obligations for the U.S. to protect and implement the rights established in the treaty. If the U.S. chooses to sign, but not ratify a treaty, then it is bound to refrain from measures that would contravene the purpose and goals of the treaty.  None of the agreements that the U.S. has ratified have expressly included a right to water for all people.

That position taken by the U.S. ignores the obligations created by international custom. The ICJ has held that to establish international custom, the practice must be “very widespread and [have] representative participation in the convention,” along with “virtually uniform practice…that demonstrates a general recognition of the rule of law.” To summarize, for a right to become international custom, it must be generally accepted and practiced, and supported by judicial opinions (opinio juris). The human right to water has been reinforced by regional courts, including the Inter-American Court of Human Rights, in multiple cases since its adoption in 2010. The human right to water satisfies the requirement of being supported by judicial opinion.

After nearly two decades of statements by United Nations bodies about the human right to water, the UN declared the years between 2005-2015 the International Decade for Action, “Water for Life,” citing the fact that 884 million people lacked access to safe drinking water, and 1.5 million under the age of 5 were dying annually as a result of water-and-sanitation-related diseases. Further, in 2010 the United Nations General Assembly voted in support of Resolution 64/292 formally recognizing the human right to water and sanitation. The resolution also urges states and organizations to make available financial and technological resources in efforts to provide safe, clean, accessible, and affordable drinking water and sanitation for all. Though U.S. abstained from voting on the resolution, the resolution passed with 122 votes in favor and 43 abstentions.

Following the right to water resolution, the UN adopted Resolution 15/9, affirming that countries have the “primary responsibility to ensure the full realization of all human rights.” As a part of that realization, the UN charges states with developing legislation, plans, and strategies for the realization of human rights obligations, specifically access to safe drinking water and sanitation. For these reasons, the human right to water has been universally accepted and practiced enough to satisfy the generality requirement of international custom.

Although the U.S. has not recognized the human right to water, it is a legally binding right under the international custom source of international law. What remains is for the government to take steps to provide the people of the U.S. with sufficient and sanitary water, and for officials to recognize that the people do have a fundamental right to water. Recognizing the human right to water at the federal level would provide a stronger legal basis for claims against localities in which the water sources are polluted and unfit for human use. But, most importantly, a human right to water in the U.S. would give all citizens the most fundamental right there is—the right to live.

Tanisha Canty is a second-year law student at Northeastern University School of Law

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Citing Right to Education, Advocates Seek Sanctuary Status for Boston Schools

By Aja Watkins and Kevin Murray

The Boston City Council held a March 7 hearing on a resolution, introduced by Councilor Tito Jackson, to declare Boston Public Schools sanctuary schools. A sanctuary school would refuse to participate in any action to enforce federal immigration policies, including the signed by President Trump. Around 200 community members met at St. Stephen’s Youth Programs on March 7 and heard testimony from teachers, students, activists, and BPS personnel regarding the proposed resolution.

Those who argued in favor of the resolution cited fear of deportation as an impediment to learning. Students who are undocumented, or who have undocumented relatives, are particularly impacted by policies of the new administration. However, proponents of the sanctuary schools resolution said that the issue at hand wasn’t immigration policy, but the right to education. If children are afraid of attending school or related stress, they will be distracted and unable to learn. School nurses and teachers cited research and cases establishing that a worry of deportation can be destabilizing for families, both economically and psychologically, and Councilor Ayanna Pressley related this proposal to current work regarding school responses to trauma. Because traumatized children cannot adequately exercise their right to education, policies that increase fear to attend school undermine that right.

Some community members and policymakers questioned the resolution’s possible impact on students’ ability to focus at school. For example, a resolution protecting children while they are at school would not be able to mitigate fears children may have about deportation of their family members. In response, Councilor Jackson emphasized the importance of taking steps in the right direction, and the power of simple declarations to set the tone for policy implementation. Parents spoke about children in their community who are too afraid to go to school – the most extreme case – who have the most to gain from a sanctuary schools resolution. Jackson also referred to a complementary proposal for an Immigration Defense Fund that would help supply lawyers to defendants in immigration court cases.

A panel of BPS administrators answered questions about the district’s current policy regarding federal law enforcement. When any kind of law enforcement enters a school, the central office is notified first, consults their legal team, and acts accordingly. Instances of this are rare, according to the BPS representatives. Furthermore, BPS does not collect data about students’ citizenship or immigration status, and panelists emphasized that they strictly observe all confidentiality requirements regarding student data. Jackson suggested that the superintendent, himself should be required to sign off on any cooperation with federal law enforcement, and noted that the resolution was aligned with the BPS mission to create “safe, healthy, and welcoming” school spaces.

When questioned about their response to the executive orders, panelists from the BPS cited the activation of an emergency response team, and recent correspondence with school leaders requesting that they communicate any effects of the November presidential election on school climate. So far, no district-wide teacher training on appropriate responses to the orders has been provided, although a representative from Massachusetts Immigrant and Refugee Advocacy Coalition (MIRA) invited teachers to their workshops about immigrant rights.

The hearing close with many questions in the air and no action on the resolutionl, but the next day the Council unanimously endorsed a resolution affirming the “right to safe education.” The resolution is not legally-binding on the City of Boston or the BPS, and several questions remain about how Boston might implement a sanctuary schools program. First, it is unclear whether the City Council or the Boston School Committee has jurisdiction over the schools in this case. Second, the legal ramifications of enforcing the resolution – and thereby declining to cooperate with Federal law enforcement – have not been clarified. Finally, no one at the March 7 hearing was clear about what legal remedies would exist if agencies such as the US Immigration and Customs Enforcement Agency (ICE) simply ignored such a policy. Boston may be able to look to other cities such as Oakland, Des Moines, and Pittsburgh that have instituted similar policies in order to answer these questions. Serious questions notwithstanding, that the Boston City Council resolved to take action based on concern for the right to education of Boston’s children must be seen as a positive step.

Aja Watkins is a PHRGE research intern and an undergraduate at Northeastern University majoring in Philosophy and Mathematics. She is a national finalist for the 2017 Truman Fellowship Program

Kevin Murray is Executive Director of PHRGE.

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Protecting Migrant Workers across the Trumpscape: The Case for an Integrated Approach

By Caroline Kelley

Since November 9, 2016, citizens of the United States, Mexico, and the world have wondered who will advocate for their rights in the new geopolitical landscape. They have fearfully ruminated on the breadth of executive power, and have reached out to allies in the hope that collective actions will have greater effect than individual ones. There are some groups of citizens, however, who—while threatened by the policies and conflicts of interests of the new administration—have never enjoyed a robust framework for the protection of their rights. One such group is seasonal workers who migrate from Mexico to the United States to work under the H-2A and H-2B visa programs.

The H-2 visa programs are established by the Immigration and Nationality Act, and are governed by regulations issued by the Department of Labor, the Department of Homeland Security, and the State Department. The DOL’s regulations, which concern the issuance of temporary certifications allowing American businesses to apply for visas, contain most of the worker protections afforded by the H-2 process. The regulations include a requirement that US employers contractually forbid any recruiters they use from charging fees to workers seeking H-2 employment. This provision represents an attempt to control the largely unregulated process of recruitment under the H-2 programs, which neither sending nations nor the United States has taken significant steps to control. Mexicans attempting to enter the US to work under the H-2 program are vulnerable throughout the recruitment process, when they are likely to encounter actors who will lie to them about the work that is available abroad, charge them exorbitant fees, or otherwise take advantage of their strong desire to find employment.

When I was first introduced to the H-2 programs, during my winter co-op job at the Proyecto de Derechos Económicos, Sociales y Culturales (ProDESC), located in Mexico City, I felt hopeful that Donald Trump’s destructive policies would bypass them altogether. He had not denounced the H-2 programs as he had the H-1 visa program, and it was not a topic which, like immigration, was discussed on his website and in speeches. Furthermore, Donald Trump is an H-2 program employer through his hotels and other business ventures. He also briefly hired an H-2 recruiter to his DOL transition team, a woman who has suggested that the H-2 programs support small businesses, legal immigration, and American jobs. Initially, these facts indicated to me that the H-2 program was not in danger from a Trump presidency.

However, as I began to dig deeper, I found that H-2 workers were even more exposed than I realized, due to the nature of the visa program and the likelihood of executive inaction over the next four years. Though the program was created by statute, and therefore cannot be completely eliminated without congressional approval, its form and function are established entirely by regulation. This means that the President and the heads of his executive departments, if acting in concert, could strong-arm their way to a new regulatory scheme by promulgating rules that cut back on H-2 worker protections. Congress would be able to issue joint resolutions of disapproval against such regulations, if there was sufficient consensus to do so, but the President could veto those resolutions. Overall, the extent of the President’s power over regulations, paired with the conflicts of interests present in having an H-2 employer in the White House, paint a troubling picture for H-2 regulation over the next four years.

Even if the structure of the H-2 programs is not changed during this term, relaxed enforcement of the few worker protections found in H-2 regulations could be devastating. Mexican workers who are exploited during the recruitment process may not be able to successfully recover fees in their home country due to flaws in its justice system, and even if they are able to procure a judgment, it will likely extend only to the Mexican recruiter, who may be judgment-proof. Establishing the liability of a US employer for illegal fees can be even more difficult. The DOL’s regulations do not contain a private right of action, which means that workers must rely on the agency to enforce them. To recover fees themselves, workers must rely on alternate sources of law, such as the Fair Labor Standards Act, the Migrant and Seasonal Agricultural Worker Protection Act, or contract. Each poses unique obstacles, and taking any legal action in a foreign country can be difficult. Workers often fear that if they speak up, they will be fired, or their visas will not be renewed, even though H-2 regulations technically prohibit retaliation.

Coming to understand the challenges H-2 workers face in their attempts to access justice for themselves and their fellows has inspired me to think more critically and holistically about a client group’s situation. ProDESC, having identified these challenges, has begun to partner with U.S.-based legal services and public interest organizations to pursue test cases concerning recruitment abuses in the H-2 context. In order to truly make the H-2 program safer for workers, organizations on both sides of the border must partner to educate workers about their rights, to identify illegal activity, and to pursue legal action whenever possible. Lobbying for a private right of action under the H-2 program would also make a difference, if successful. It has been a great pleasure for me to work with talented Mexican and U.S. attorneys over the last three months, and I believe that the H-2 context is only one of many which would benefit from increased legal partnership between our two inextricably linked nations.

Caroline Kelley is a third-year student at Northeastern School of Law. During the Winter 2017 quarter, she worked with Proyecto DESC in Mexico City through Northeastern’s Cooperative Education Program.

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Parole: The Death of Due Process

By Tara Dunn

“Going to prison is like dying with your eyes open.”-Bernard Kerik.

These are My Brothers, Uncles and Fathers
My second day on co-op, my supervisor and I visited the Washington, D.C. Central Detention Facility to see clients. Once we made it through security, the air got thicker and began to reek of sweat and rotten meat. As we rounded the corner, there were about 14 men in orange suits sitting along the wall, every single one of them African-American. I lagged behind my supervising attorney, making eye contact with every single man in there. I wasn’t staring at “criminals,” some shadowy villains starring in a scary, fireside tale. I was staring at men who looked like my father, brother, uncle, cousin, and grandfather.

I had a hard time holding myself together that first trip to the jail. I watched client after client, those who had previously experienced all but hell itself, many of whom were fighting addiction, mental health disabilities and poverty, pleading for freedom on a charge from which a state court had already absolved them. Witnessing their plight never got easier, but my clients made it easy to spend every minute of my co-op fighting for their freedom. Every hour I dedicated to preparing for a parole revocation hearing became a religious, cleansing experience. It became an opportunity to force the system to uphold its constitutional obligations.

The System

I spent eleven weeks learning from men and women who bear the burdens of the United States’ darkest human rights violation, the criminal justice system. Daily, attorneys at the Public Defender Services, District of Columbia, fight for their clients, tooth and nail, clutching what little is left of due process. Parole is currently one of the least protected criminal procedures. The court in Morrissey v. Brewer established that revoking parole is “not a part of the criminal prosecution” and thus the usual procedural protections are not extended to what many consider a “privilege”. When working in the parole system, the rule of law is tertiary to the mercy of the whimsical and arbitrary practices of the United States Parole Commission: its methods an accessory to the inexorable death of due process. Clients could spend an exorbitant amount of time incarcerated waiting for a parole revocation hearing, there is often no opportunity for judicial review, the rules of evidence do not apply, there is no right to counsel.

Under the federal parole system, revocation hearings are held for clients that are arrested for violating provisions of their parole. A parolee can be arrested for anything from a serious violation of the law, to merely testing positive in a urine test for alcohol or marijuana. Double jeopardy does not apply. For example, if a client on parole is arrested in Maryland for attempted distribution of cocaine, and the case is dismissed in the District Court of Maryland, the parolee can still be “tried” for that same charge during his parole revocation hearing under a lower standard of proof (preponderance of evidence). Once the parolee is transferred to the federal system jail, he could sit there for months waiting for his hearing, which could result in release or a sentence to additional time in jail. The examiner is a  “neutral” party that simultaneously represents the judge, the jury, and the prosecutor, and ultimately recommends the length of the client’s sentence. The examiner’s recommendation is then sent to the U.S. Parole Commission, where commissioners arbitrarily approve or modify a sentence with little or no justification. The Parole Commission’s decisions are appealable, however the same commissioner who issued the final decision sits on the body reviewing the appeal.

The examiners are not judges, and the majority have never practiced law or attended law school. As such, in such hearings I was challenged to craft a legal argument to present to an individual that lacked formal legal training and often lacked the motivation to consider the relevant law. The client’s fortunes depended entirely on the moods and personal whims of the examiner and it was my job to carefully navigate those rapidly shifting waters. How is one to prepare a client when the rules of evidence do not apply and a client can be penalized for refusing to answer incriminating questions? How to explain to a client that they must wait behind bars for months while waiting for a hearing on a charge that was previously dismissed in court? And then comes the wait to receive notification from the Parole Commission confirming or modifying the examiner’s recommendation, which could take weeks.

As I made my way through this frustrating and disheartening process, I had the opportunity to serve the most phenomenal clients I have ever met, and to work under the supervision of an attorney who inspired me in every way. For this privilege, I feel extremely thankful.

Tara Dunn is a third-year law student at Northeastern University School of Law.

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Alfred Brownell’s Long Road to Northeastern

By Kevin Murray

alfredAlfred Brownell’s wife and children probably never expected to be living in Boston this winter. Nonetheless, in early January Mr. Brownell began work at Northeastern University School of Law (NUSL) as a Visiting Scholar affiliated with the Law School’s, Program on Human Rights and the Global Economy (PHRGE).

A well-known human rights and environmental lawyer in his native Liberia, Brownell has always done work that raised eyebrows. He came of age in a country wracked by not one, but two bloody civil wars. He took a law degree in hopes of being able to do something to address the injustices he saw in his country.

His experience as a law student at the Louis Arthur Grimes School of Law, University of Liberia, kindled what was to become a lifelong interest in Liberia’s environment. In 1997, while still a student, that interest led him to form Green Advocates, the first Liberian nongovernmental organization dedicated to environmental law.

green-advocates-meeting“We started Green Advocates in my house. It was an idea, in my brain, written on paper and kept in a folder. We had no money, no donors and no programs…just our own skills and a desire to help people. We called it Green Advocates because we saw what was happening to the environment in Liberia and how those changes were affecting the poorest people in the country…the people without a voice.”

When Alfred moved to New Orleans in early 2001 to seek an LL.M degree from Tulane University, his plan was to eventually return and work for the Liberian Government Environmental Protection Agency. Brownell was already the co-author of Liberia’s framework environmental laws.

Brownell returned to Liberia in 2004, it was not so clear that working with the government was the best way to addresses the injustice that he saw everywhere. “Looking at the human rights violations all across Liberia, I decided that I needed to find a way to directly help the people who were suffering from those violations the most. At that time, work in government was just not going to be the way to do that. I decided to make it my priority to develop Green Advocates into the organization that Liberia needed.”

Alfred and his colleagues slowly started to build a reputation as a public interest law organization that would take on situations that other lawyers preferred to avoid. Between 2004 and 2006, Green Advocates was involved in a number of major events that brought local, national and international attention to the work of the organization. These included:

rubber-tapperThe Bridgestone case brought international attention to Green Advocates. With support from a US based Law firm, Green Advocates filed suit against the company for child labor and forced labor and other abuses. While a District Court judge decided that claims of the more than twenty (20) child laborers were not meritorious, it held that corporation was liable for human rights violations and foreign plaintiffs could bring these claims under the Alien Torts Statute.  “Even though we lost that battle, we won the war,” says Mr. Brownell.

After the Bridgestone/Firestone case, Brownell and his colleagues continued to work on important cases in Liberia, but also became deeply involved in international human rights advocacy.

alfred-and-villagers“Yes, it was very interesting to be invited to Geneva, London and Washington to participate in international meetings, but I have always been happiest when I could spend time with people in the village, hearing about their problems and discussing what we could do to help. This was not a strategy: It has always been what we have wanted to do.” This might be because Alfred grew up in one such village, not far from the border with Sierra Leone. He first experienced the gleaming buildings of Monrovia when he was selected to attend university in the capital.

Around 2009, the Green Advocates office began to receive inquiries from villagers who were being displaced as the result of big land deals between the Liberian government and outside investors interested in establishing large-scale agricultural and mining operations in Liberia. The government was brushing aside the customary arrangements through which these communities had gained access to land for generations, in favor of lucrative leases to these multinational corporations. Many of the most important land acquisitions were designed to allow foreign companies set up palm oil plantations.

“What could we do? We knew that the amounts of money changing hands in these deals would make it dangerous to oppose them, but we also knew that these concessions were illegal and immoral. With people showing up at our offices in Monrovia every day to ask for help, we had no choice but to get involved.”

In addition to using judicial and non-judicial mechanisms to slow or stop these deals, Green Advocates joined an international discussion about how palm oil might be cultivated in a manner sustainable in social, economic and environmental terms. While this work has gained Green Advocates accolades around the world, it made them important and dangerous enemies at home.

LIberia_plantation_002.jpgAs both the Liberian government and international companies were forced to defend their actions in international fora, Green Advocates received increasing pressure to direct its efforts elsewhere. The threats came both in subtle and very direct ways, from unknown anonymous sources, and from the highest levels of the Liberian government. How those threats, and the intervention of a global network of human rights organizations brought Alfred to NUSL will be the subject of our next post.

Kevin Murray is Executive Director of the Program on Human Rights and the Global Economy at Northeastern University School of Law

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Follow up: IFC dumps Eco Oro investment amid questions over project’s environmental impact

By Devan Braun

mineria-en-el-paramoIn a recent post, Rightscapes analyzed the human right effects of arbitration mechanisms often included in bilateral and multilateral trade agreements. To illustrate these effects of these arbitration mechanisms, we used the example of Eco Oro, a Canadian mining company that had recently filed an arbitration request over actions taken by the Colombian Constitutional Court.

Since the publication of that post, the International Finance Corporation (“IFC) has announced its decision to divest from the Canadian company Eco Oro Minerals. The IFC’s announcement that it will sell off its 12.5% stake in Eco Oro comes about in the wake of the company’s recent filing requesting an arbitration proceeding over the project.

environmental-impactThe Bank initially began a detailed review of the project after receiving a formal complaint to its independent investigation mechanism from several environmental groups, including the Washington-based Center for International Environmental Law (CIEL). The review of various environmental and social aspects of IFC’s investment in Eco Oro Minerals Corp. resulted in a 52-page report that confirmed that the project did not meet several of the Bank’s internal requirements, including an Environmental and Social Impact Assessment (“ESIA”). In its initial response to the report, IFC committed to continue monitoring the project, noting that the related ESIA had yet to be completed and that Eco Oro had suspended the project. After the report’s release, Eco Oro’s management confirmed that actions taken by the Colombian Constitutional court had rendered the project unviable, and that the company’s only path forward is the arbitration filing.

water-is-a-rightIFC’s divestment from its shares in Eco Oro confirms the potential negative impact of the project in Colombia, as the IFC’s spokesperson has stated that IFC will only invest in projects that have a positive impact on the development of Colombia. Its divestment lends further credence to Colombia’s decision to reject the mining project in the sensitive Angostura region, as it does not meet the required environmental and social frameworks required for such projects.

Devan Braun is a student at Northeastern University School of Law and served as a PHRGE Fellow at the Center for International Environmental Law

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