|Discussion List (Professor Osofsky will join the discussion list from April 11-15)|
Hari Osofsky received a B.A. from Yale College in 1993 and a J.D. from Yale Law School in 1998. After clerking for Judge Dorothy Nelson of the Ninth Circuit Court of Appeals, she worked as a Fellow at Center for the Law in the Public Interest in Los Angeles, pursuing public interest impact litigation with a focus on environmental justice. During the 2001-02 academic year, she served as a Yale-China Legal Education Fellow and Visiting Scholar at Sun Yat-sen (Zhongshan) University in Guangzhou, China, teaching U.S. Civil Rights Law and working collaboratively with her Chinese colleagues to launch the school’s first legal clinic. In 2003–04, she received a fellowship from the Carnegie Council on Ethics and International Affairs to support an environmental rights research, writing, and advocacy project. She is currently an assistant professor and the inaugural director of the Center for International and Comparative Law at Whittier Law School. In 2005–06, she will be a visiting assistant professor at the University of Oregon School of Law. She has also taught at Vermont Law School and Loyola Law School (Los Angeles).
Hari Osofsky’s research and writing focuses on characterization issues at the legal intersections relevant to international environmental justice problems. Her most recent publications include: Learning from Environmental Justice: A New Model for International Environmental Rights, 24 STANFORD ENV. L.J. 71 (2005); Environmental Rights Enforcement in U.S. Courts, HUMAN RIGHTS DIALOGUE (2004); and Defining Sustainable Development After Earth Summit 2002, 26 LOYOLA L.A. INT’L & COMP. L. REV. 111 (2003). She teaches courses on Chinese Law, Environmental Ethics, Environmental Justice, International Law, International Environmental Law, International Trade and Investment Regulation, and Property. For the past two years, her Environmental Justice class has produced case studies to assist Earthjustice with its annual report on environmental rights to the U.N. Human Rights Commission.
Learning from Environmental Justice:
A New Model for International Environmental Rights
By: Hari M. Osofsky
It is an honor and a pleasure to participate in the Environmental Law Virtual Guest Speaker series. This talk stems from research that I conducted in 2003-04 as a Fellow with the Carnegie Council on Ethics and International Affairs on international environmental rights. The article upon which this talk is based—which I have included as a separate attachment—forms part of longer-term project that compares the legal intersections at the heart of international environmental justice problems. To allow this lecture to flow better, I am only providing citations for quoted material. Citations for all of the material I am referencing here, however, can be found in the article.
I’ll begin by giving an example of environmental harm to humans with international environmental rights implications. According to the plaintiffs in a suit against Texaco originally brought in the United States and now, after a forum non conveniens dismissal, pending in the Ecuadorian courts, Texaco extracted almost 2 billion gallons of oil from the Ecuadorian rainforest between 1972 and 1992. Despite the fact that many indigenous peoples live on this land, Texaco spilled over 3,000 gallons of oil per day during this 20 year period. To put the overall volume in perspective, the Ecuadorian government estimated that 16.8 million gallons of oil spilled from Texaco’s primary pipeline, which is approximately 6 million gallons more than was released in the Exxon Valdez spill.
Texaco’s practice of discharging oil and disposing of waste directly onto roads and into streams and rivers exposed plaintiffs to hydrocarbons and carcinogens. Even the rain water became contaminated, leaving plaintiffs with no safe source of water for drinking, cooking, or bathing. “A 1993 study by doctors and scientists from the Harvard School of Public Health found toxins in the rivers at levels ten to 1,000 times higher than the amount allowed by the U.S. Environmental Protection Agency. The study concluded that ‘the exposed population faces an increased risk of serious and nonreversible health effects such as cancers and neurological and reproductive problems.’”
Although this is an extreme example, it illustrates the complexity of these problems well. The case involves a U.S. multinational corporation working in developing country under the supervision of that country’s government. The victims are indigenous peoples who, despite heightened protections under international law, have limited standing to bring claims in international fora. Legally, there are multiple strands at play; it is an environmental problem, a rights problem, and a discrimination problem, but fits into none of the categories perfectly.
My project focused on these problems and the difficulties addressing them systematically. Over the course of my fellowship, I applied a model that I developed for breaking down environmental harm to humans, and applied to it to sixteen case studies. In so doing, I aimed to identify how current law could be used more systematically and effectively and to explore avenues for future legal development.
This talk will provide an overview of my research project with a focus on four main topics. I will begin my analyzing the three main problems of characterization that serve as a barrier to advocates and courts. I next will present a model—based on U.S. domestic environmental justice approaches—for categorizing environmental harm to humans. I then will provide a summary of some of the lessons and proposals that I drew from applying this model to the case studies. I will conclude with some final reflections on how advocacy in this area might proceed.
I. Problems of Legal Characterization
The limitations of applicable international law, differences in how international environmental and human rights law treat sovereignty, and difficulties in applying general rights consistently to these problems have resulted in a jurisprudence that often applies different legal theories to similar facts. As mentioned previously, although international environmental law, international human rights law, and international law protections against discrimination all potentially apply to these problems, none of them captures the relevant facts completely. International environmental law focuses on environmental damage, international human rights law focuses on human harm, and international protections against discrimination—a subset of international human rights law—focuses on the discriminatory aspects of situations.
The characterization difficulties are compounded by the fact that international environmental law and international human rights law treat state sovereignty differently. Although international environmental law recognizes limits on state sovereignty, one of its fundamental principles is that states control their natural resources unless they are causing transboundary or global commons effects. Because many international environmental justice problems occur within one country’s borders, international environmental law often does not provide a basis for intervention. International human rights law, on the other hand, limits a state’s sovereign control over people within its borders when atrocity occurs. It draws from concepts of universal jurisdiction to contend that severe mistreatment of human beings, even in a domestic setting, is of international concern.
Although these different approaches to state sovereignty mean that international environmental justice problems are generally treated as human rights problems for the purposes of advocacy, the human rights jurisprudence is itself rife with inconsistency. Advocates have used human rights theories as a tool in international, regional, and national tribunals, but widely variant legal claims are often made on similar facts. For example, under the U.S. Alien Tort Statute, in three cases involving resource extraction that caused severe environmental and human harm, two were based on the rights to life and health and the third claimed violations of genocide and cultural genocide.
Although the opportunism of human rights advocacy and strategic difference might partly explain this divergence, the lack of a clear map also serves as a critical barrier. Confusion over alternatives not only undermines efforts to bring the best case possible forward, but also at times leads to damaging precedent for future claimants.
II. Model for Categorizing Environmental Harm to Humans
In order to understand how these problems might be approached more systematically, I developed model for exploring the way in which advocates and courts are characterizing facts. This model drew from U.S. domestic environmental justice approaches, which typically address these problems in three main ways: as environmental violations, as tort violations, and as civil rights violations. Environmental law applies standards equally to each person, the common law action in tort focuses on factors that help to unpack the harm involved, and civil rights law approaches address the unfair distribution of the harm. My model doesn’t use any of these approaches exactly—domestic and international law approaches do not map onto one another completely—but rather draws from them to create an international law analog. This talk provides a brief overview of the model, which is presented in more depth in the full article.
A. Nature of Environmental Harm to Victims
The environmental law prong of the model addresses the nature of the environmental harm to victims. U.S. law focuses primarily on environmental damage, but gives the orientation of limiting environmentally damaging behavior, and thus provides a good starting point for exploring the harm. This prong of the model considers four main aspects of the nature of the harm.
1. Geographic Scope
The larger the scope, the greater the chance of harm to humans becomes. Moreover, the geographic location also impacts the likelihood of harm; incidents occurring in areas of high population density are more likely to have significant human consequences.
More severe environmental harm generally has worse human impact, especially when part of larger pattern or in the context of other abuses.
3. Duration in Time
The longer the duration of the environmental damage, the greater the likelihood of human harm is. In making an assessment of duration, it is also important to consider length of negative impact on people.
4. Type of Rights Violation Claimed
This factor is not focused on categorizing the harm itself, but rather on understanding how advocates have translated it into international human rights violations. As part of unpacking the inconsistencies, it is important to see how advocates are characterizing the harm in the factual situation into a rights claim
B. Relationships Among Polluters and Victims
The tort law prong considers the relationships among the polluters and victims. A person who commits a tort causes harm in violation of a duty of care. The nature of environmental harm analysis already considers the element of harm, so this part of the model focuses on duty of care and causation elements of tort. It also includes an additional element of international law status, which reflects the complications of who can be held responsible under international law
1. Duty of Care
This factor focuses on obligations created under national law, regional law, international law, and industry standards. National law often contains environmental regulations, protections for indigenous and minority groups, anti-discrimination law, and regulations for corporations. Under regional and international law, state parties not only have a duty to refrain from causing harm, but also have an obligation to stop harm from occurring within their borders. Finally, industry standards allow a comparison of the behavior in the case with both developed and developing country standards for corporations in the industry.
This prong focuses on unpacking the complications of corporate and government roles, the corporate form, the way in which decisions occurred and were implemented, and the resultant harm.
3. International Law Status of Polluters
The international law status of polluters impacted the form of each of the actions brought. Not all human rights norms can be applied directly to nonstate actors and they have limited standing in international and regional fora. In domestic suits against nonstate actors, arguments that they were acting under the color of state law or authority are often made. Conversely, states can participate fully in regional and international fora, but sovereign immunity and other jurisprudential doctrines often limit actions against them in domestic courts.
C. Evidence of Discrimination
The international law protections against discrimination are both narrower and broader than those provided by U.S. domestic law. Although the limits upon the role of nonstate actors constrains international law efforts to end discrimination, the Committee on the Elimination of Racial Discrimination and a number of scholars have concluded the International Convention on the Elimination of All Forms of Racial Discrimination reaches the equivalent of disparate impact discrimination. This part of the model thus combines U.S. legal approaches to intentional discrimination and disparate impact, relying on the approach taken in Arlington Heights.
1. Protected Status of Victims
In the U.S. domestic context, civil rights law focuses on discrete or insular minorities. This factor similarly provides for consideration of the relevant national, regional, and international protections for minority and indigenous peoples, who are often the petitioners in environmental rights actions.
2. Historical Context
A combination of colonialism and racism often provides history of discrimination that underlies the current behavior. Especially when same decision-making entity was involved in the earlier discrimination and current behavior, an inference can be made that the present uneven distribution of harm is discriminatory.
3. Current Context
The environmental harm to humans often occurs in the context of other environmental harm or human rights violations. This backdrop lends force to discrimination claims.
4. Decision-making Process
Although smoking guns are rare, substantive and procedural departures in the decision-making process that resulted in the harm provide evidence of discriminatory intent.
5. Disparate Impact
Generally some people are harmed more than others, but this factor focuses on whether a distinguishable group—based on race, gender, class, age, ethnicity, etc.—is injured.
III. Lessons from Case Studies
A brief survey of newspapers and nongovernmental organization websites reveals how sadly common international environmental justice problems are. My Carnegie Council project focused more narrowly on cases in which a tribunal has reached a substantive decision, so that I could assess both advocate and court characterizations.
I reviewed the jurisprudence of major bodies at international, regional, and national level that have heard and decided international environmental human rights cases. At an international level, I examined the work of the U.N. Human Rights Committee, the Committee on Elimination of All Forms of Racial Discrimination, and the Committee on Rights of the Child; I ultimately focused on U.N. Human Rights Committee cases because the other two tribunals primarily dealt with environmental human rights in country reports. With respect to regional human rights fora, I examined the decisions of the European Court of Human Rights, the Inter-American Court and Commission on Human Rights, and the African Commission on Human and Peoples Rights. Finally, I considered the U.S. jurisprudence regarding the Alien Tort Statute, a law that allows the application of international law to torts suffered by aliens.
Ultimately, I chose sixteen cases, nine in which plaintiffs prevailed and seven in which they did not. I strove for geographic and substantive diversity, both in facts and legal claims made. I also tried to include varying degrees of severity of harm, and a range of substantive and procedural claims. Finally, I looked for cases with a clear relationship to environmental rights and tried to avoid redundancy.
Applying the model allowed me to break down each of these cases, and understand the problem, advocacy approaches, and judicial responses. For the purposes of this presentation, I will summarize my overall findings and conclusions based on the application of the model to specific cases.
A. Summary of Results
1. Applying the Model: Nature of Environmental Harm to Victims
With one exception, the harm in all sixteen cases fell into three overlapping categories: (1) damage caused by resource extraction, (2) harm to indigenous peoples caused by development, or (3) small-scale nuisance in industrialized countries due to development. Unsurprisingly, Category 1 and 2 claims generally involved the broadest geographic scope, the most severe harms, and the longest duration. Choice of forum seemed to correlate with the harm involved only in that European Court of Human Rights was only one with Category 3 claims. This correlation likely stems from fact that it is only forum with predominantly industrialized countries.
A mix of substantive and procedural claims was made based on these facts. With exception of African Commission on Human and Peoples’ Rights, all claims were based on the application of general human rights norms to the environmental harm. Prior to San Salvador protocol coming into force in 1999, only the African Commission’s governing treaty contained protections for a right to a healthy environment.
In international and regional fora, success or failure appeared to hinge on the court’s application of law to facts rather than on whether environmental harm could have human rights implications. Conversely, in U.S. courts, almost all of the substantive failures stemmed from courts questioning the connection between the general human rights and environmental harm to humans.
2. Applying the Model: Relationship Between Polluters and Victims
In analyzing the relationship between polluters and victims, I considered three main issues: how the victims’ status impacted the nature of the polluters’ duties, whether the polluter was causing harm that constituted a human rights violation, and which entity was the responsible actor. With respect to the victims’ status, the contours of the duty were based primarily on whether victims were indigenous peoples who had protected status under international law often expressed in domestic law as well.
Regarding causation, cases in which petitioners succeeded involved distinct harm with clear causal links to the polluters. Cases in which petitioners failed either had a weak causal chain, or substantial consideration of the victims through the state’s domestic processes.
Finally, with respect to which entity was the responsible actor, the structure of relief impacted who was before each tribunal. Petitioners were all private parties claiming a rights violation; nine of the sixteen cases had indigenous peoples as victims. In international and regional, all petitions were brought against governments, as claims were not allowed against private parties. In ten of those thirteen cases, however, the private entity regulated by government was the direct cause of harm, and in another two, a corporation appeared to play some role. In the U.S. Alien Tort Statute context, the constraints of sovereign immunity meant that all three cases were against private actors. Only one opinion found the claims well enough supported by law and fact to discuss the issue of whether the corporation was acting under the color of state law or authority.
3. Applying the Model: Evidence of Discrimination
Evidence of discrimination correlated to whether the claims involved indigenous peoples. The most significant result under this prong was the how few of the cases involved explicit discrimination claims. Different issues caused this result in each tribunal, but only one Inter-American Commission case and one Alien Tort Statute case involved discrimination claims that were successful substantively, and one UN Human Rights Committee case involved an unsuccessful discrimination claim.
B. Proposals for Future Advocacy
1. Strategies Under Current International Law
Rights theories differed widely among tribunals. In deciding on claims and tribunals, advocates should consider how well their facts match the claims which have previously succeeded in the various tribunals. Also, as mentioned before, discrimination claims consistently dropped out. So, I analyzed which forums might be amenable to test cases.
a. U.N. Human Rights Committee
Successful claims rested upon a violation of the Article 27 protection of the minority right to culture, and hinged upon both the extent of the violation and the government’s efforts to address the problem. If the case involves indigenous peoples, the Committee is unlikely to accept a claim based on Article 26 of International Covenant on Civil and Political Rights. A test case under Article 26 would have to involve victims from some other differentiable group.
b. European Court of Human Rights
Claims in this forum succeeded most often based on a substantive argument that the right to respect for private and family life has been violated, or a procedural argument about inadequate judicial access. Although European Court of Human Rights often fails to reach discrimination claims when it finds a substantive rights violation, its general amenability to environmental rights might make it a good test forum for this type of claims.
c. The Inter-American Court and Commission on Human Rights
These fora were amenable to claims regarding a wide range of substantive arguments—although the most recent cases that have reached substantive resolution focused on the right to property—as well as procedural claims about inadequate judicial recourse and protection. With the explicit right to a healthy environment now embodied in the San Salvador Protocol, future decisions regarding environmental harm to humans will likely rely upon this right. The Inter-American Commission heard one petition that succeeded on a discrimination argument and so it might be a good forum for further test cases.
d. The African Commission on Human and Peoples’ Rights
The African Commission similarly accepted a wide range of substantive environmental rights claims based on violations of general human rights, as well as a claim based on a right to a generally satisfactory environment favorable to peoples’ development, as provided for in the African Charter on Human and Peoples’ Rights. Its openness to environmental rights analysis might make it a good test forum for discrimination claims.
e. U.S. Domestic Courts
In the Alien Tort Statute jurisprudence, failed environmental rights claims rested on customary international law protections of the right to life and health in two of the case studies, and on prohibitions against genocide and cultural genocide in the other. The only substantive success in this context was through a discrimination claim based in part on evidence of environmental harm; however, plaintiffs in this case ultimately lost on justiciability grounds. Given the current precedent, environmental rights claims on grounds other than discrimination are unlikely to succeed until new developments in customary international law occur.
2. Map for Future Legal Development
The most helpful development for victims would be a binding environmental rights treaty with a corresponding judicial forum that had enforcement authority and was open to nonstate actors as petitioners and defendants. Such a treaty does not seem likely to become reality in the near term, however.
More realistically, with respect to existing treaties, advocates could work to build the jurisprudence linking human rights to environmental harm by carefully choosing situations that expand the existing jurisprudence slightly in each forum that has ruled positively on environmental rights claims. As additional treaties are being negotiated, advocates can work to strengthen linkages between the rights that have been relied upon in the case studies and environmental harm, as well as seeking inclusion of a right to a healthy environment. Given the important role of nonstate corporate actors in most of these situations, strengthening international governance of them is also critical.
b. Customary International Law
The various treaty advocacy strategies proposed above would help to build customary international law protections of environmental rights, particularly if they focus on more specific language linking environmental harm to right to life and health violations. Such an approach may be of only limited effectiveness in changing the negative Alien Tort Statute precedent, however, as a number of regional and international fora have recognized environmental content to those two rights and these developments were viewed as insufficient by the U.S. federal courts. Alien Tort Statute suits on environmental rights grounds other than discrimination may simply have to wait for enough new developments to occur that advocates can attempt to distinguish more effectively the substantial negative precedent with respect to environmental rights.
IV. Concluding Reflections
The biggest lesson from the application of the model to these case studies may not be any of the substantive ones articulated above, but rather the critical need for more coordination of advocacy. So long as environmental rights cases are brought individually in whatever forum presents itself, the ability to develop a systematic jurisprudence will be limited.
A better international network is needed to provide additional connections among the advocacy efforts that occur in a diverse set of countries and in multiple languages. Even when the barriers of time, money, language, and differences of opinion prevent actual collaboration among advocates, the existing jurisprudence can serve allow for some de facto coordination. By looking at how the facts in the new cases compare to those that have been argued in applicable fora and which legal claims have been most effective, advocates can give victims of environmental harm their greatest chance of human rights redress.
Similarly, in encouraging treaty and customary international law development,
advocates should build from the linkages that have been most effective
in the jurisprudence to date. The model and case studies here provide
the beginnings of such a road map, but more systematic analysis and networking
are still needed.
*** This lecture is based on an article published in the Stanford Environmental Law Journal. A version of the article is available at the Carnegie Council Website.