Global attempts to ban fracking must consider importance of ‘just transition’
KATIE KOUCHAKJI
In early November, the British government announced that fracking was not to proceed in England, following new scientific analysis. The decision comes amid mounting calls for the practice to be banned around the world.
Fracking – or hydraulic fracturing, the process of drilling into the earth and then injecting a high-pressure water mixture to release the gas from inside the rock – has long been a target for environmentalists, but with fossil fuels progressively in the spotlight the practice is under increasing fire. Attempts to ban the practice, however, must consider the human impact.
The government made its decision amid concerns about seismic activity resulting from fracking, though critics note that the announcement – stating that fracking is on pause ‘unless and until further evidence is provided that it can be carried out safely’ – leaves the door open for it to resume.
It’s a different story in the United States, where the shale gas boom has transformed the economy and communities. Fracking is credited with altering the US energy complex and for a drop in the country’s power sector emissions. Indeed, the International Energy Agency noted in September that the US has become the world’s largest oil and gas producer and is on track to become a net energy exporter in 2020. The 2019 US Energy and Employment Report found that oil and gas production added the most new energy jobs in 2018, while Deloitte noted in 2018 that wages to highly and mid-skilled professionals in the sector grew faster than the average, particularly during the 2008–2010 financial crisis.
The economic activity associated with the sector makes the phasing out of shale gas and an end to fracking that much harder, due to the potential impact on local economies and communities. Bill Schleizer, CEO of the not-for-profit Delta Institute in Chicago, notes that the impact is not just on primary jobs, but also on logistics, distribution and support jobs, and that more of the community in areas with fracking will be employed in some way by the sector, directly or indirectly.
The UK government has announced that fracking is not to proceed in England
The notion of a ‘just transition’ is one that acknowledges that climate action and the low-carbon transition will have an impact on workers and that the shift needs to be fair to all and done in an equitable manner. Schleizer says this means ensuring that both existing employees and new entrants to the workforce have equal access to jobs in new industries in areas that are transitioning away from fossil fuel extraction.
Something to consider, Schleizer says, is whether there are ‘things around the skillsets of the workforce that will still be necessary and relevant and important when we’re doing that transition into a fossil-free energy sector’. There is also a need to look for ‘parallel jobs’ that are closer to existing jobs, rather than outright retraining. He adds that fuels such as hydrogen and biodigesters could have a more direct transition from the natural gas sector, including of infrastructure such as transport and distribution networks.
‘A lot of the expertise people in the fossil fuel industry have could be put to use in the renewable energy or energy efficiency sectors,’ says Don Smith, Editor of the IBA Journal of Energy and Natural Resources Law and an associate professor at the University of Denver Sturm College of Law. ‘Evolve or go out business – that’s just how things work.’
This is at the heart of a just transition – the need to ensure that people feel supported and offer retraining as needed while they are still employed, says Sam Huggard, outgoing Secretary at the New Zealand Council of Trade Unions. Last year, the Pacific nation’s government announced a ban on new offshore oil and gas exploration permits, which significantly affects the Taranaki region. Huggard praises the government’s move to establish a just transition unit within the Ministry of Business, Innovation and Employment while simultaneously reforming the vocational education sector to ensure closer ties to local communities.
‘If we can bring people on board, knowing there’s a place for them, the government has the social licence to make the changes,’ says Huggard. For workers, that means more than just telling them there is a job for them – they need a map to it and policies to support the transition, he says.
Huggard cites examples on the east coast of the US, where states are working with unions to ensure that there are jobs in the growing offshore wind industry and that these are comparable to legacy roles in the fossil fuel sector. ‘It’s important to ensure that the new jobs are good jobs and not just any old job,’ he says.
‘Right now, the market and investment around [fracking] in the US has it going for several decades, at least,’ says Schleizer. ‘We do want to see it as a bridge technology into a carbon-neutral economy – with the amount of investment that’s happening right now, we’re hoping it doesn’t become a replacement sector.’
IBA and World Bank highlight the economic benefits of legal aid
A new report from the IBA Access to Justice and Legal Aid Committee and the World Bank claims that improving legal aid services is as important for economic growth as providing functioning hospitals, schools and roads. The study underlines how legal aid not only benefits individuals and societies, but also saves government expenditure in other areas.
More than 50 cost and benefit studies of legal aid programmes from around the world were surveyed for the report, with evidence compiled from civil and common law jurisdictions in Australia, Bangladesh, Canada, Liberia, Malawi, South Africa, the United Kingdom and the United States.
A Tool for Justice: The Cost Benefit Analysis of Legal Aid reveals that around 5.1 billion people – two-thirds of the world’s population – lack meaningful access to justice. Lack of access to justice traps people in vicious cycles of poverty, inequality and marginalisation. The burden of this justice gap falls disproportionally on the most vulnerable, including women, children, minorities and people with disabilities. Lack of access to justice also increases the risk of conflict and violence within a society.
Legal aid is a recognised way of providing access to justice, but the funding for it is often seen as a drain on state finances. Aid programmes are most frequently required for cases related to divorce, domestic violence, evictions, homelessness and unsafe housing conditions.
The report was launched in a Showcase Session from the Section on Public and Professional Interest at the IBA Annual Conference in Seoul on 26 September. Titled ‘The economics of justice – using cost benefit analysis to demonstrate the economic returns of legal aid programmes’, the event began with presentations by high-profile speakers from IBA bodies, the World Bank and other institutions, followed by a panel discussion.
Watch the showcase session at tinyurl.com/SPPIshowcase
Podcast: poverty and the rule of law
In a new podcast, Ian McDougall, Executive Vice President and General Counsel for the LexisNexis Legal & Professional division of RELX Group, discusses the relationship between poverty and the rule of law.
McDougall has acted as legal lead at a number of finance and technology providers. He sits on the United Nations Rule of Law Steering Committee and is a member of the UN General Counsel Advisory Board.
Talking at the IBA 2019 Annual Conference in Seoul to Carmen Pombo, IBA Poverty and Social Development Committee Advisory Board Member and Co-Chair of the Rule of Law Forum, McDougall argues that the rule of law has a direct and significant correlation with poverty rates.
McDougall stresses that lack of rule of law, proper government administrations and equality of treatment leads to small businesspeople being forced to deal in the black market, without access to redress in courts. This causes a cycle of corruption and abuse that keeps people in poverty, because the rule of law isn’t there to protect people.
In a world where moderate or extreme poverty affects over three billion people, he says only stability under the rule of law will lead to sustained progress in alleviating poverty.
To listen to this podcast, please visit tinyurl.com/McDougallPod
Fundamental rights and rule of law conference
On 5 November, a panel of high-level European Union representatives considered the current state of play concerning fundamental rights and the rule of law in Europe. Held in Brussels, the panel was organised by the European Economic and Social Committee and moderated by Sara Carnegie, Director of the IBA Legal Policy & Research Unit.
The Fundamental Rights and the Rule of Law (FRRL) Conference was the first of its kind, aiming to build on the findings of the FRRL group, which leads country visits and provides a forum for European civil society organisations to share their assessments on fundamental rights, democracy and rule of law in EU Member States. The Conference involved workshops intended to identify trends and inclusive solutions, as well as better identification, across three areas: media and narratives around fundamental rights and the rule of law, civic space and discriminated groups.
Member States urged to provide greater support to UN human rights bodies
On the occasion of the 2019 United Nations Day on 24 October, the IBA’s Human Rights Institute (IBAHRI) urged Member States to desist from undermining the functions of UN human rights bodies through delaying payments and other budget cuts.
Set up in 1945 in the wake of the horrors of World War II, the founding nations’ main aims for the UN were to ensure international peace and security, and to develop friendly relations among nations based on respect for the principle of equal rights and the self-determination of peoples.
However, adjunct UN bodies set up to strengthen international human rights protections have been prevented from carrying out their mandates effectively due to a trend of shortfalls and cuts affecting their allocated budget. IBAHRI Director Helena Kennedy QC stated: ‘The greatest factors influencing the effectiveness of the UN human rights mechanisms are the insufficient resources at their disposal and lack of cooperation by Member States.’
In May, the IBAHRI was one of multiple signatories to an open letter conveying deep concern for the critical funding gap affecting UN human rights mechanisms and the Office of the High Commissioner for Human Rights. The letter urged all Member States to pay their assessed contributions, prioritise adequate funding and discuss how to reverse the worrying trend of budget reductions.
Expert roundtable considers major challenges of international criminal justice
More than 200 experts in international criminal justice came together for an expert roundtable at the Peace Palace in The Hague in October to discuss the long-term issues prevalent in international justice.
‘Seeing Justice Through: long-term issues in international justice’, a two-panel event, was organised by the IBA’s International Criminal Court and International Criminal Law (ICC & ICL) Programme with support from the IBA War Crimes Committee. IBA President Horacio Bernardes Neto opened the event, with introductory remarks delivered by HE Ambassador Paul van den Ijssel, Permanent Representative of the Netherlands to the Organisation for the Prohibition of Chemical Weapons, and a keynote address provided by ICC Judge Kimberly Prost.
Participants representing 40 jurisdictions examined the role of states and courts in creating a cooperation-based regime that allows for the execution of judicial orders, as well as upholding the statutory and human rights of individuals charged before an international criminal court or tribunal. The panels examined what legal regimes govern the situations of individuals released or acquitted, whether the legal frameworks are adequate and consistent, and what common challenges are faced in achieving a functional level of cooperation with respect to post-trial issues.
During proceedings, the IBA’s ICC & ICL Programme launched the latest report in its Discussion Paper series. Provisional release, release at advanced stages of proceedings, and final release at international criminal courts and tribunals sets out the existing law and practice addressing release at different stages of proceedings, and suggests ways to strengthen international courts’ practices regarding human rights standards.
Closing remarks were made by Ambassador Stephen J Rapp, the Sonia and Harry Blumenthal Distinguished Fellow for the Prevention of Genocide at the United States Holocaust Memorial Museum’s Simon-Skjodt Center, and a Visiting Fellow of Practice at the Blavatnik School of Government of University of Oxford.
The ICC & ICL Programme report is available to read at tinyurl.com/intltribunalspaper
IBAHRI activities round-up: Syria, Myanmar and Kazakhstan
The IBA’s Human Rights Institute (IBAHRI) has conducted a series of activities bringing attention to the need to uphold the rule of law and protect human rights in Syria, Myanmar and Kazakhstan.
Following recent assaults against Syrian Kurds by Turkish forces in northern Syria, the IBAHRI called on Turkey to halt the attacks, stating that Turkey has an obligation under customary international humanitarian law to distinguish between combatants and civilians in military attacks. The IBAHRI also issued a statement on the sustained and intentional bombing of hospitals by Russian air forces in Syria since 2015, noting the attacks are the most deplorable assault on human life.
Myanmar has been another focus of the IBAHRI, which has announced its support for the historic genocide case being brought against the country by The Gambia for the persecution of Rohingya Muslims. The IBAHRI is one of ten organisations supporting the initiative, who met in November at The Hague to discuss the submission with The Gambia’s attorney general and justice minister, as well as several representatives of the Rohingya community.
Finally, the IBAHRI hosted a delegation of five Kazakh lawyers in Geneva to engage in advocacy efforts before the Human Rights Council session, where Kazakhstan was reviewed under the Universal Periodic Review. During the week, the IBAHRI delivered training for the lawyers on the UN human rights system and available mechanisms. Delegates also met with UN representatives, who were briefed on the lack of independence of the legal profession in the country.
For more information, go to tinyurl.com/ibahri-home
Myanmar: scant signs of progress for displaced Rohingya
ABBY SEIFF
On 26 September 2019, 30 Rohingya Muslims were arrested in the south of Myanmar while travelling from Rakhine State to Yangon, where they planned to seek work or passage abroad. Local media reported that the 21 adults were sentenced to two years in prison with labour and the eight teenagers sent to a ‘youth training school’. The 30th member of the group, aged five, is currently being detained with his mother. Their crime? Travelling without permission.
Such detentions are hardly rare in Myanmar. The colonial-era Residents of Burma Registration Act 1949 is used in conjunction with more recent laws that deny the ethnic Muslim minority citizenship along with the most basic of human rights, such as the right to travel freely. The 1982 Citizenship Law stripped the Rohingya of citizenship, failing to classify them among 135 legally recognised ethnic groups.
Over 740,000 Rohingya fled the violence in Myanmar into neighbouring Bangladesh
Such persecution has recently become more acute. In August 2017, a military-led crackdown began after an armed Rohingya group launched a coordinated attack on more than 30 police posts, killing 12 members of the security forces. Those attacks came after months of mounting violence and years of sporadic sectarian clashes; they were met with a scorched-earth style military response.
Apart from the hundreds of villages burned to the ground, Médecins Sans Frontières estimates that at least 6,700 Rohingya were killed by violence in Rakhine State between 25 August and 24 September 2017.
According to a report by a panel of UN investigators, released in August 2019, Myanmar’s Tatmadaw – its armed forces – were involved in the majority of acts of sexual violence recorded against Rohingya women and girls in 2017. The report’s authors claim the sexual violence showed the military’s ‘genocidal intent’. Myanmar has denied these allegations.
Some 740,000 Rohingya fled the violence into neighbouring Bangladesh. Of the estimated half a million Rohingya who remain in northern Rakhine State, more than 100,000 are in bleak, resourceless, internally displaced persons camps. The rest live in what amounts to an open-air prison – with no right to move freely, obtain work, attend school or receive healthcare.
In total, approximately one million Rohingya now live in and around the sprawling camps in Cox’s Bazar, near the Myanmar border in Bangladesh. Their lives are interminably on hold.
The situation in the camps is far from sustainable. The refugee camps are densely packed and located in an environmentally fraught area. Landslides and flooding are common, along with public health emergencies, such as cholera and diphtheria outbreaks. Sexual violence occurs frequently and schooling is restricted.
Since July 2019, Myanmar has restarted talks with Bangladesh on repatriating the Rohingya population. While Myanmar claims to have verified some 3,500 people for return, no refugees have agreed to go.
The Myanmar government’s actions suggest it has little true desire for the Rohingya to return. The Australian Strategic Policy Institute analysed satellite images and found at least 40 per cent of Rohingya villages had been razed, with some of the land giving way to camps and military facilities.
‘The government of Myanmar may have offered to repatriate the Rohingya, but there is widespread consensus among international observers that conditions have not been put in place for their safe and sustainable return,’ says Federica D’Alessandra, Co-Chair of the IBA War Crimes Committee and Executive Director of the Programme on International Peace and Security at the Oxford Institute for Ethics, Law and Armed Conflict.
‘Entire villages and their livelihoods have been destroyed, families torn apart,’ says D’Alessandra. ‘Returning at this stage would relegate hundreds of thousands of people to dependence on international humanitarian aid.’
Further, the Myanmar government has been adamant that it will not budge on the question of citizenship, instead promoting a National Verification Card (NVC) scheme to refugees. The scheme has come under fire as a means of erasing identity. In a report issued in September 2019, human rights organisation Fortify Rights claimed that the Myanmar government has ‘forced or coerced Rohingya to accept NVCs, which effectively identify Rohingya as “foreigners”’.
Nearly 100 per cent of those Fortify Rights interviewed reported feeling pressure to accept such documentation and a similar number of respondents said their movement and ability to work had been restricted while in Myanmar.
Two years on from the military crackdown and despite the reports of a recently concluded 30-month UN independent fact-finding mission on Myanmar, Yangon’s military investigation has yet to charge any high-ranking Tatmadaw commanders. The Myanmar government has also been dismissive of the International Criminal Court, which has opened a preliminary investigation into the crimes against the Rohingya.
‘To this date, the Myanmar government has shown itself unable, if not outright unwilling, to protect these communities and ensure their ability to live free from violence, and they have not provided evidence that things will be different once refugees return,’ says D’Alessandra. ‘There has not been a reckoning of the atrocities that have been perpetrated again on them and other ethnic minorities to date, nor have guarantees of non-repetition been put in place.’