International Arbitration: An Impediment for Human Rights and Environmental Law

By Devan Braun

water-is-a-rightThe Center for International Environmental Law  (“CIEL”) is an organization that advocates using the law to protect the environment, promote human rights, and support indigenous communities. During the course of my co-op there as a PHRGE fellow, I focused mainly on corporate accountability, and was drawn to research investor-state dispute settlements (“ISDS”), a little-known area of international law that has disastrous consequences for human rights and the environment.

Bilateral investment treaties are trade agreements between two States that often include international arbitration provisions, allowing corporations to sue States for enacting legislation designed to protect the public interest. ISDS often comes up in cases of mining investments and access to water services, after corporations have invested resources in development projects or extracting natural resources. When such projects face limitations due to the State’s environmental and social safeguards, corporations often resort to the arbitration mechanisms present in bilateral investment agreements as a means of recovering what they consider to be lost profits.

These international arbitration provisions were initially built into trade agreements in an attempt to attract foreign investment to States where the judicial systems were perceived as corrupt. Without such provisions, corporations worried about having a lack of legal recourse if they were wronged. Providing the option to go to an international tribunal, such as the World Bank’s International Centre for Settlement of Investment Disputes (“ICSID”), instead of domestic courts, gave corporations the protections and guarantees they sought in order to commit to investing in less-developed States. Notably, however, governments are consistently losing cases in these fora, or are forced into unfavorable settlements with corporations using the international arbitration system.

mineria-en-el-paramoA case example helps to illustrate this concept. Eco Oro, a Canadian mining company, filed a request for ICSID arbitration in the case of the Angostura gold mining project in the fragile, high-altitude wetland – known as the páramo – in Santurbán, Colombia. The páramo provides clean water to over one and a half million Colombians, and is a huge carbon sink, rich in endangered biodiversity. Eco Oro invested in a mining initiative in the páramo that has damaging environmental and social consequences through the use of cyanide to extract gold there. However, the Constitutional Court of Colombia recently affirmed that mining in the páramo violates the country’s constitution, stating that the protection of water sources takes precedence over any extractive project in these ecosystems. This ruling brought the Eco Oro project to a standstill.

Because of this action by the Colombian court to protect its citizens’ right to clean water and environmental preservation, Eco Oro has expressed its intent to sue the government of Colombia. Equally disturbing is the fact that, the International Finance Corporation, the private-lending arm of the World Bank with the mission to alleviate poverty and promote inclusive development, invested in Eco Oro’s mining project; a project that is now merely an arbitration-based investment.

ifc-divestMy work at CIEL confirmed that such cases are, unfortunately, quite common. The projects that resort to international arbitration often affect indigenous peoples’ right to free, prior, and informed consent concerning projects undertaken on their land, the human right to clean water, and other environmental obligations. The Eco Oro case is only one example of the way corporations use arbitration mechanisms to evade environmental and human rights accountability for their mining operations. Just this year, Venezuela was ordered to pay US$1.4 billion in taxpayer money to Canadian mining company Crystallex. These cases illustrate a systemic problem that impedes environmental and human rights defenders’ capacity to advocate on behalf of communities and ecosystems most vulnerable from development projects. We cannot expect to meaningfully address climate justice and human rights obligations, as well as harms against indigenous peoples, if investors can sue our governments for millions and billions of dollars for trying to do just that.

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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Human Rights Under Trump: Taking on the Challenge


On December 8-9, 2016, the Program on Human Rights and the Global Economy (PHRGE) will host its eleventh annual Human Rights Institute at Northeastern University School of Law (NUSL). This year’s Institute is entitled, “Global Justice Goes Local: The Emergence of Human Rights Cities.” The idea of bringing together academics, advocates and activists on the topic of local implementation of human rights was exciting to us when we agreed on this topic a year ago. The recent U.S. presidential election has made the topic even more timely than we originally anticipated.

trumpDonald Trump built a political campaign around misinformation, insults, bluster, and a series of campaign promises. Many of these involve promises to violate the human rights of immigrants, women, Muslims, people of color, etc. etc. We are confident that Trump and his political allies will not be able to carry out this terrifying agenda, but if he is able to keep even a fraction of his promises, a parade of human rights violations foretold awaits us.

Much human rights advocacy focuses on the obligations of national governments to implement human rights. The ratification of international human rights treaties by national governments activates those obligations, and the Universal Periodic Review process rightly draws the attention of activists to national progress on meeting treaty obligations.

However, state and local governments also have human rights obligations under human rights law, and activists are increasingly organizing themselves to demand that sub-national governments take seriously those obligations. The global discussion of “the right to the city,” and the human rights cities movement are two important manifestations of this trend, as are cities for CEDAW, sanctuary cities, and the considerable amount of issue-based organizing at the local level (housing, education, health care, etc.) that is making use of the human rights framework.

reject-trumpCivil society engagement with the U.S. federal government around its human rights obligations will certainly continue during a Trump administration. But that national engagement will more likely take the form of denuncia, in the Latin American sense of a cultural rejection of a systematic policy of human rights violations, and a principled refusal to legitimize that policy through engagement with its architects. Engagement at the state and, especially, the local level will become more important and productive arenas of human rights implementation in the next period.

hrc-forumIn this context, PHRGE’s 2016 Human Rights Institute becomes a perfect opportunity to analyze the relevance of the human rights framework to local social justice organizing. This two-day event will offer participants the chance to educate themselves about strategies to achieve local policies that advance human rights, and to engage in facilitated workshops designed to tackle real questions facing these efforts. Day One will consist of two informative panels, a reception to celebrate the release of, Global Urban Justice: The Rise of Human Rights Cities, one of the first books attempting to gather and analyze the experience of human rights cities, and a major keynote on the potential of human rights cities by Martha Davis, a PHRGE Faculty Co-Director and Professor of Law at NUSL. After a plenary presentation by Shulamith Koenig of the People’s Movement for Human Rights Learning (PDHRE), Day Two will turn to two intensive workshops in which participants will work on specific questions likely to face local human rights in the next period.

As Barbara M. Oomen, another co-editor of the book we will celebrate at this year’s Institute put it:

The rise of human rights cities does not only hold the potential of strengthening social justice in cities worldwide at a time in which it is direly needed and cities are best placed to deliver it, but also holds considerable promise for the realization of international human rights at a time when these rights—although omnipresent— suffer from considerable critique.

The 2016 PHRGE Institute aims to contribute to the realization of this powerful dual potential. As always, the Institute will attract people who have been using the human rights framework to advance their social justice work, along with others who have not yet embraced human rights in the same way.

public-conversationsDay One of this year’s Institute is open to the public and all are encouraged to attend. Due to our limited capacity for the second day, we ask that interested participants express their interest in participating in Day Two and we will invite participants on a space available basis. Past Institutes organized in this way have proven to be excellent learning and networking opportunities. Join us for a conversation about how we must all move forward in this new and challenging time.

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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Health Care in the United States: A Right for All or None?

By Mary Slattery


Alameda Health Consortium

Despite the clear presence of a human right to health in the International Covenant on Economic, Social and Cultural Rights (ICESCR), there is no fundamental right to health or health care under United States law. Since it has not ratified the ICESCR, the US does not consider itself to be bound by the covenant’s provisions.

For the US to recognize a given right nationally, reference to it must be found in the Constitution itself or its Amendments, the first ten of which are known as the Bill of Rights. While state constitutions also guarantee some additional rights, the existence of those rights is confined to that state. There is no explicit or implicit reference to a right to health or health care in the federal Constitution however. Even many things that are colloquially referenced as a right, such the right to water or the right to education, are not recognized as fundamental rights in the federal context. The U.S. only recognizes rights of equal access to water and education, such that unless there is a very compelling reason, the government may not deny access to those people who are from a protected class any more than they do the rest of the population. This protection is found in both the Equal Protection clause of the 14th Amendment and the Equal Protection clause of the 5th Amendment.


ACA Signed into Law

The passage of the Affordable Care Act (ACA) in March 2010 gave many the impression that access to healthcare was now a right in the United States. This is understandable, given legislators’ frequent pronouncements that “everyone” would now have healthcare, that this right was for “all Americans,” and now the US “will join the community of nations that believe that the people who live within them are deserving of decent health care, all of them, regardless of their financial situation.” The access provided by the ACA is a legislatively-created statutory right, however, not a constitutional right.

Prior to the ACA, healthcare in the US was primarily a service for purchase. Insurance was most commonly bought privately or through employers, and the exorbitantly high costs of health care made it incredibly difficult for individuals to otherwise afford health expenses.  Certain government programs, such as Medicaid and Medicare, heavily subsidized the payments made by some vulnerable populations.

health-exchangeYet the cost of the insurance was still too high for much of the US population, which did not qualify for government programs, so many lacked any sort of health insurance. The ACA aimed to change that and create universal healthcare coverage by requiring insurers to offer more affordable insurance based upon the purchaser’s income level and making purchase of health insurance mandatory for all. Health care was to remain a service for purchase, but the ACA put in place reforms to promote the affordability of that purchase for all.

Looking at the experience of one group of people under the ACA—noncitizen immigrants to the US, for example, is one way of determining the extent to which the goal of universal care has been achieved. Despite the ACA’s goals and rhetoric in this regard, noncitizens continue to be excluded from the universal health care program. This exclusion extends not only to undocumented immigrants, but also to Legal Permanent Residents (LPRs) in their first 5 years of residency. During that time, those legal residents of this country are ineligible for Medicaid.

health-care-for-allTwo different rationales are commonly used to argue that noncitizens are undeserving of health insurance and therefore should be excluded. The first is that noncitizens are free-riders who fail to pay into the health insurance system. This view is grounded in our unique notion of health insurance not as a right, but as something you only get if you can afford to pay for it. Furthermore, it seems to stem from the belief that if noncitizen immigrants were to be eligible for government subsidized healthcare in the US, they would arrive in unmanageable numbers to unfairly take advantage of the program. This is contradicted by the fact that LPRs do pay taxes which financially support our universal healthcare system, as do many undocumented immigrants. The second justification for the exclusion of noncitizens is precisely that they are not citizens, and the universal healthcare program is a privilege reserved exclusively for U.S. citizens. However, this is in conflict with the concept that health insurance is a product that anyone may purchase and not a right tied to our Constitution.

The prevalent conception of health care as a product for purchase and therefore a privilege, not a right, is a key impediment to making health care universal in the United States. Noncitizens disproportionately suffer the effects of this exclusion. Unless we recognize the right to health care of all living within our borders, it will be difficult to guarantee noncitizens access to health care that many citizens feel that they themselves do not have.


Andrapalliyal, Vinita. “Healthcare for all”?: The Gap Between Rhetoric and Reality in the Affordable Care Act. UCLA Law Review. 61 UCLA L. Rev. Disc. 58 (2013).

Wolbert, Samuel. Universal Healthcare and Access for Undocumented Immigrants. Pittsburgh  Journal of Environmental and Public Health Law. 5 Pitt. J. Envtl Pub. Health L. 61 (Winter 2011).

Parmet, Wendy E. Who’s in?: Immigrants and Healthcare. The Oxford Handbook of U.S. Healthcare Law. (July 2015).

Mary Slattery is a second-year law student at Northeastern University School of Law

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Lack of access to health care for immigrants in the United States: A human rights violation?

By: Anel Morales


Regardless of its shortcomings, health care reform in the U.S. has opened up access to health care for millions of people previously excluded from critical health services. However, immigrants, both documented and undocumented, have not shared equally in this opening of the system. The international human rights framework offers one perspective from which to view the effects of the exclusionary nature of the reform.

Two important documents, both published in 2010, attempt to apply the international human rights framework to the situation of immigrants, both documented an undocumented. Drawing on a variety of treaties, covenants and other sources of international law, The Boston Principles on the Economic, Social, and Cultural Rights of Noncitizens (“The Boston Principles”) and The International Migrants Bill of Rights (“IMBR”) summarize the legal framework for the protections of noncitizens and migrants.[1] These principles draw on some international treaties and standards that are legally-binding on the U.S., but they also include rights that the authors believe should be adopted as international human rights law. The Boston Principles and the IMBR both provide an extensive blueprint of rights for noncitizens and migrants in all legal practice areas using binding law and aspirational principles, which have not yet been recognized in treaties that have been ratified by the United States.[2]

One way to examine the value of these documents is to consider their relevance to the highly controversial question of immigrant access to health care in the United States. Since both documents draw on essentially the same sources in international law, they provide relatively similar language related to immigrant’s access to health care. Both state that “all persons, including [noncitizens and migrants], have the right to the enjoyment of the highest attainable standard of physical and mental health.” They specifically provide that noncitizens should also have equal access to health care and do not recognize distinctions based on immigration status. The IMBR further includes equal access to preventive, curative, and palliative health services by drawing on several international and regional human rights treaties that enumerate access to these critical health services.[3]

Also in 2010, the U.S. Congress passed a comprehensive reform of the national health care system, the Affordable Care Act (“ACA”). The ACA was designed to establish universal health care for “all Americans” and establish a broad “right” to health care, but it merely continued to restrict coverage for immigrants.[4] The ACA bars immigrants who do not have lawful immigration status from gaining access to health care insurance, which includes DREAMers and the millions of undocumented immigrants residing in the United States. This large population of immigrants arguably contributes to our economy and considers the U.S. their home, but due to their lack of immigration status, they are not considered eligible for the “universal” health care promised by the ACA. This treatment certainly does not conform to the international standards outlined in the IMBR and the Boston Principles.

Moreover, even most documented immigrants (“qualified non-citizens” as they are referred to in the ACA) who have been granted immigration status for less than five years at the time of their health care application are ineligible to receive Medicaid under the ACA.[5] To address this problem, the ACA provides that noncitizens with incomes below 100% of the federal poverty line, $11,880 ($24,300 for household of 4) may receive tax credits and subsidies for the purchase of some form of health insurance on the private market. However, this does not guarantee access and may not be a viable solution for many low-income immigrants due to the high cost of private insurance.

In light of the negative practical effects of the ACA on noncitizens, several scholars have proposed different ways to remedy the exclusion of immigrants from health care services. One partial solution would be to provide health care to undocumented children, who can currently only receive the very limited and expensive care provided in emergency rooms. This limitation does not allow access to pediatricians who can provide specialized medical attention. [6] There is a strong argument that providing care to these children, especially preventive care, might well reduce health care costs. Similarly, some propose amendments to the ACA to include basic health coverage for undocumented immigrants. Again, the argument is an economic one that such a change would help to relieve state budgetary burdens, especially public hospital budgets.


These types of alternatives may provide a way to close the gap that currently exists between immigrant access to health care in the U.S., and the hope that noncitizens will possess “the right to the enjoyment of the highest attainable standard of physical and mental health,” as described in The Boston Principles and the IMBR. These documents may not be binding law, but the notion that international standards include a right to adequate healthcare for all can be useful in helping to plant the seed for litigation arguments or public policy changes that immigrants desperately need in this country.

[1] Both documents use different terminology. Noncitizens are foreign-born individuals living in the United States who have not obtained citizenship, including both lawfully present immigrants and undocumented immigrants. Migrant is a term commonly used in Europe and means someone who is in the process of relocating to another country or place, or someone who has already moved.






Anel Morales is a third-year law student at Northeastern University School of Law.

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A Desire to Give Voice to the Voiceless

Emmanuel Sam, a native of Sierra Leone and a Masters of Law student at Northeastern University School of Law, was awarded a PHRGE Fellowship this spring to work with the Raoul Wallenberg Institute for Human Rights and Humanitarian Law (RWI) in Lund, Sweden. In this video produced by RWI, Emmanuel talks about the roots of his commitment to human rights and the ways he hopes his legal education will help him live out this commitment. He frames this commitment as “…a desire to give voice to the voiceless.”

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Still Dazzled by the Facts and Figures

By: Alefiyah Ezzi, PHRGE Fellow at Oxfam America

blog photo

Photo credit: Jaclyn Sokol, CHANGE Logistics Coordinator, Oxfam America

My experience at Oxfam America over the past 11 weeks has been phenomenal. I gained knowledge about the corporate world and developed skills that I could not have within the walls of a classroom. I interned for the Private Sector Department which focuses on ways to harness the strengths and resources of the private sector to pro-poor ends.

Recently, Oxfam released a tax media brief which uncovers how the top 50 U.S. public companies avoid a big chunk of their fair share of taxes through tax havens. As a continuation of the research exposed in this media brief, one of my larger tasks was to conduct research on tax specific lobbying and political capture in the finance, real estate and insurance (FIRE) sector, the pharmaceutical sector, and oil and gas sector. These three sectors make up a big part of the U.S economy and, hence, all together they pay some of the highest amounts in taxes to Uncle Sam.

Having limited prior knowledge on how the U.S. tax system works, I was very enthusiastic and yet a little apprehensive about this task. However, this was my moment to step up and take the plunge. Little did I know how fascinating this topic was! This research had me hooked for at least 5 weeks.

Did you know?

  • The FIRE sector is the third highest spender on lobbying and has spent almost $7 billion on lobbying between 1998 and 2015.[1] The FIRE sector has also been the leading source of campaign contributions and ranks number one for contributing the highest amount of money during 2015-2016 election cycle – $426 million (at least 5 times more than the amount donated by the health care sector).[2]
  • During the 112th congress, for every $1 the oil and gas industry spent on campaign contributions and lobbying, it got back $103 in subsidies- a 10,200% return on political investment.[3]
  • Many companies within the pharmaceutical industry have exploited tax loopholes to avoid U.S. taxes. At least ten huge corporations in the pharmaceutical industry are culpable for corporate inversion.[4] Many pharmaceutical corporations stash away billions of dollars in offshore accounts.[5] These are the same corporations who actively lobby the federal government on issues related to corporate tax loopholes.[6]

Apart from the above, I also wrote a research piece on tax specific lobbying by the U.S. Chamber of Commerce—the biggest Trade Association in the U.S. The facts and figures I came across were mind boggling. For example, since 1998, the Chamber has spent more than $1 billion dollars on lobbying – the first organization to cross that milestone.[7]

During the last few weeks on my co-op, my big task was to gather data on corporate contributions to the national conventions; this was also a potential extension to the corporate tax research.[8] I prepared a memorandum which outlined the scope of research and am currently putting together all the required data using different sources including grappling with company 10-K’s. I am pretty sure that by now I have developed a new sense of attention to detail.

All in all, my time at Oxfam America has been an enormous learning curve and as sad as I am about leaving, I am very excited about the next opportunities that will come my way.

[1] Top Spenders, Centre for Responsive Politics,

[2] Totals by Sector, Centre for Responsive Politics,

[3] Fossil Fuel Funding to Congress: Industry influence in the U.S., Oil Change International,

[4] Tax Inversion, How U.S. Companies Buy Tax Breaks (Nov. 23, 2015),

[5] Citizens for Tax Justice, Shell Games 2015 (2015) The Use of Offshore Tax Havens by Fortune 500 Companies (2015),

[6] Lobbying, Centre for Responsive Politics,; Lobbying profiles of different pharmaceutical companies and the tax specific issues that they lobbied.

[7] Carrie Levine, The Chamber’s Bad Bet on the GOP (Mar. 30, 2015),

[8] In an effort to influence public policy, which includes tax reforms, large corporations donate significant amounts of money to the national conventions and as a result, corporations and their lobbyists enjoy a wide range of benefits including direct interaction with the lawmakers. Party Conventions Are Free-For-All for Influence Peddling, Public Citizen,

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A Fighting Chance: Legal Responses to the Humanitarian Border Crisis

By: Jacqueline Kelley, PHRGE Fellow at South Texas Pro Bono Asylum Representation Project (ProBAR) in South Texas

Child on Border Fence blog photoI sat across from Jonathan as he told me a lifetime of stories. Abandoned by his mother at age three, Jonathan, from Michoacan, Mexico, was raised by a father who worked for drug traffickers and brutally abused him. After Jonathan dropped out of school and ran away from home, another drug cartel targeted him to recruit him into their ranks. Even though he resisted recruitment, Jonathan was arrested by the Mexican military on unfounded allegations of criminal behavior. He was then tortured before prosecutors even brought formal charges against him. When he was released after six months for lack of evidence, Jonathan faced a heavy choice: return to his abusive father or try to make it on his own on the streets, where the cartels would surely target him once more. That is when he made the choice to head to the United States, to save his own life. After two hours, I looked down at my pages of notes detailing Jonathan’s lifetime of struggles—those of a fifteen year old boy.

Every year, thousands of unaccompanied children attempt to cross into the United States through the Mexican-U.S. border—and in recent years, thousands make the attempt every month. The humanitarian crisis of 2014 that brought a massive influx of Central American and Mexican migrants, many of them children, has barely subsided as we approach mid-2016. Some migrants look for ways out of crippling poverty, in many cases caused by U.S. economic policies that stunt opportunity. Some are looking to reunite with parents or other loved ones whom they have not seen in years; harsh immigration laws make legal family reunification either an exceptionally lengthy process or, more often, an impossible one. Many are quite literally fleeing for their lives—running from ever-growing gang and cartel violence coupled with the inability or unwillingness of their home countries’ authorities to protect them. To call the choice to migrate under these circumstances a true “choice,” seems starkly inaccurate. When your life is on the line, is migration a choice? Did Jonathan have a choice?
Since early March, I have worked alongside ProBAR in the Rio Grand Valley of South Texas in the struggle to give detained migrants a fighting chance as they battle through our draconian immigration system. ProBAR (South Texas Pro Bono Asylum Representation Project) provides free, direct legal services to adult and minor asylum seekers detained by the U.S. government in South Texas, and coordinates national pro bono volunteer efforts to serve migrants who relocate to other parts of the country. For my first six weeks in Texas, I interned for the Children’s Project; there, I worked on the immigration cases of minors, like Jonathan, who are detained in local Office of Refugee Resettlement “shelters” and are in active deportation proceedings. ProBAR Children’s Project works to reunify migrant children with loved ones while identifying potential legal relief, coordinating with national pro bono partners, and providing full-scale legal representation to locally-released children and those facing imminent deportation.Detained Youth and Families blog photo

In mid-April, I moved to ProBAR’s Adult Office, which serves detained asylum seekers primarily at the Port Isabel Detention Center in Los Fresnos, Texas. I spend long days in Immigration and Customs Enforcement (ICE) detention, identifying legal relief, participating in Know Your Rights presentations and providing legal assistance in immigration cases—from drafting applications and gathering evidence, to prepping testimony for hearings and filing court motions. For many detainees, the time they spend in visitation rooms with ProBAR staff and volunteers may very well be the only opportunity they have to tell their stories and document their legal claims. Time with ProBAR staff may also be the only human contact they will have for months, aside from time spent with other detainees and detention/deportation officers. ProBAR believes that detained migrants should never have to fight deportation alone.

There is no right to counsel in immigration removal proceedings, despite the fact that the penalties associated with losing one’s claim—detention and deportation—are some of the worst that human beings can face. Because of the sheer number of individuals requiring assistance nationally, many migrants will receive no legal assistance whatsoever and will be returned to countries where they fear persecution, violence and even death. And the grim realities of our harsh immigration system, where the deck is stacked against migrants from the outset, ensure that even migrants with full representation and solid legal claims may still face deportation. However, due to the coordinated efforts of organizations like ProBAR, thousands more migrants know their rights, put forth strong claims for relief and have a fighting chance to emerge through the system victoriously—with stability and safety waiting on the other side.

For more information on the critical work of ProBAR,

Watch the video: The 25th Anniversary of ProBAR: Pursuing Justice, Changing Lives.

Or Read about ProBAR’s work.

For more information on the need for protections for children asylum-seekers, notably Central American and Mexican minors fleeing gang violence, see the UNHCR’s resources, including its report about the migration crisis, “Children on the Run.”

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