Tuesday, March 5, 2019

The New Abidjan Principles: Bringing Clarity to the Human Right to Education

On February 13, a group of human rights experts from around the world adopted the Abidjan Principles on the right to education following three years of consultations, reflection and drafting.  The Abidjan Principles seek to strengthen existing efforts to ensure that everyone’s right to education is protected in the context of growing, and often unregulated private actor involvement in education.   These Principles will be the new reference point for governments, social organizations, educators and education providers when debating the respective roles and duties of states and private actors in education. 

The final text of the Abidjan Principles is expected to be published in mid-March.  Colombian scholar Esteban Hoyos Ceballos shares his experiences drafting the principles in a short post for the Oxford Human Rights Hub, available here.   According to Professor Hoyos Ceballos, "the Abidjan Principles recognize the reality of the private provision of education around the world and do not pretend to abolish that reality. They also admit the autonomy of parents and guardians to decide the educational institution that is best for their children. However, the Principles also acknowledge that there are tensions and loopholes in the international human rights law with respect to States’ obligations vis-à-vis the private providers of education. Therefore, the Principles develop a guide that, in accordance with international law, specifies the content of the right to education – in particular, States’ obligations with regard to the public and private provision of education."

March 5, 2019 | Permalink | Comments (0)

Monday, March 4, 2019

Alien Tort Statute News -- Plus!

After a series of narrowing opinions from the Supreme Court in recent years, developments in the past few weeks were encouraging both for litigants hoping to use the Alien Tort Statute to establish jurisdiction of  U.S. courts over human rights controversies and those seeking alternative venues for holding corporations accountable for human rights violations.  

On February 19, the U.S. Court of Appeals for the D.C. Circuit revived a $1 billion lawsuit by Palestinians seeking to hold billionaire Sheldon Adelson and more than 30 other pro-Israel defendants liable for alleged war crimes and support of Israeli settlements in the West Bank, East Jerusalem and the Gaza Strip.  In a 3-0 decision, the court said a federal district judge wrongly concluded in August 2017 that all of the plaintiffs’ claims raised political questions that could not be decided in American courts.  Rather, opined the court, the issues raised in the case -- including a claim of genocide -- were "purely legal" because genocide violates the law of nations.

Litigants are also seeking out alternative venues as U.S. courts have cut back on ATS jurisdiction.  In June 2017, Esther Kiobel and three other women launched a civil case in the Netherlands against Shell, claiming that the company was complicit in the 1995 killings of their husbands – raising the same facts that were alleged in the US Kiobel litigation.  The women alleged that Shell aided and abetted the Nigerian military dictatorship’s commission of violent human rights violations against members of a peaceful grassroots movement in the Ogoni region of Nigeria. The movement fought for Shell to clean up lands devastated by its oil operations in the Niger Delta—devastation that the United Nations Environmental Program has said will likely take up to thirty years to remediate. Shell has denied any involvement in their executions. A hearing took place on 12 February 2019 and a decision is expected on 8 May 2019.  More background on the case, which has included extensive litigation in the U.S. including multiple trips to the U.S. Supreme Court, is here.

March 4, 2019 | Permalink | Comments (0)

Sunday, March 3, 2019

Breathing Hope Into International Human Rights Jurisdiction

Human Rights activists cheered last week when in Jam v. International Finance Corporation, the US Supreme Court held that the International Finance Corporation (IFC) is subject to suit in the United States.  The court found US jurisdiction under the International Organizations Immunities Act of 1945.  International organizations have been found to have comparable jurisdictional immunity from suit in the US as foreign governments.  While immunity is broad, it is not without limitations.  Under the International Sovereign Immunity Act of 1976, one of the exceptions is when a government - or in this case an international organization - engages in commercial activities.  "[A] foreign government may be subject to suit under one of several statutory exceptions. Most pertinent here, a foreign government may be subject to suit in connection with its commercial activity that has a sufficient nexus with the United States."   As noted in the opinion,  part of IFC's charter provides: Whereas the World Bank primarily provides loans and grants to developing countries for public-sector projects, the IFC finances private-sector development projects that cannot otherwise attract capital on reasonable terms." In that regard, the IFC supplements the work of the World Back Organization.

In Jam the IFC, headquartered in D.C. financed a coal-powered plant in India.  The loan was made to Coastal Gujarat Power Ltd.  The company is alleged to not have complied with social and environmental expectations for the project and IFO was alleged to have inadequately supervised the project.   Local farmers and fishers complained of environmental pollution that has negatively changed the area air,  water, and land.  The IFO successfully argued immunity in the DC District Court.  The SCOTUS ruling returns the case to the lower court for the matter to proceed.  The opinion was 7-1 with Justice Bryer dissenting, largely noting that the majority's decision defines commercial activities too broadly and contrary to the act's intent. Justice Kavanaugh recused himself.  

Human Rights activists cheered, led by EarthRights International and Stanford Law School's Supreme Court Litigation Clinic represented the Plaintiffs.   Earthlink has at least one other case in the pipeline against IFC, including the case, Juana Doe et al v. IFC, involving  "IFC projects that have been linked to murders, torture, and other violence by paramilitary groups and death squads in Honduras. EarthRights International represents the plaintiffs, whose identities are kept anonymous to protect them from retaliation."

Before Human Rights advocates begin drafting pleadings, it is worth considering other barriers to Jam and similar litigation. There are other jurisdictional requirements that Plaintiffs may not be able to overcome.  As the court noted "[E]ven if an international development bank’s lending activity does qualify as commercial, that does not
mean the organization is automatically subject to suit."    Plaintiffs must prove sufficient nexus to the United States and "In short, restrictive immunity hardly means unlimited exposure to suit for international organizations."

Nexus to the United States and tying harm suffered to the commercial activity will be the challenges for human rights advocates to overcome in Jam and other suits.  Following the progress of Jam will be instructive.    But for the moment, having experienced limitations in Jesner and Kiobel, Human Rights advocates should savor this victory in an era where Human Rights successes are harder to come by.

 

 

March 3, 2019 in Global Human Rights, Margaret Drew | Permalink | Comments (0)