B. Human Rights in Climate Litigation
Human rights continued to feature in many instances of climate litigation in 2022, building on a general trend to focus on the human rights implications of various climate-related actions. These included the long-awaited report of the Philippines Commission on Human Rights (“PCHR”) on the impact of climate change and the role of certain high emissions companies known as “carbon majors,” which contains a series of recommendations for political bodies on responding to climate change from a human rights perspective. In other jurisdictions, courts were asked to address the human rights component of climate change vis-à-vis governments’ compliance with their obligations. These have seen mixed results, with jurisdictions often taking very different approaches.
For example, in July 2022, the United Kingdom High Court of Justice (U.K. High Court) issued a decision concerning, among other things, the Net Zero Strategy (NZS) issued by the Secretary of State for Business Energy and Industrial Strategy (Secretary) in 2021. Plaintiffs in the case had argued that the NZS was inadequate, and thus unlawful, under Sections 13 and 14 of the Climate Change Act of 2008 (CCA). The plaintiffs argued the CCA should be interpreted to better protect human rights covered under the European Convention on Human Rights (ECHR). Ultimately, the U.K. High Court found the NZS insufficient under CCA Sections 13 and 14 but not on the human rights ground.
CCA Sections 13 and 14 impose a “duty to prepare proposals and policies for meeting carbon budgets” and a “duty to report on proposals and policies for meeting carbon budgets,” respectively. The U.K. High Court determined that Section 13 had been violated by not providing quantitative analysis for the individual policies comprising the NZS. Similarly, the U.K. High Court determined that Section 14 had been violated by not providing detail on the policies, including clarifying that the quantitative assessments still left five percent of emissions reductions to be achieved by additional policy work that had only been qualitatively reviewed as of the publication of the NZS.
But the U.K. High Court did not find that the CCA should be interpreted to integrate human rights obligations from the ECHR. It noted that the Human Rights Act of 1998 did not give the judiciary license to amend legislation, just to merely interpret it to be compatible with the ECHR and related jurisprudence from the European Court of Human Rights (ECtHR). Plaintiffs referenced The State of the Netherlands v. Urgenda, but the U.K. High Court did not find that decision to necessarily conform to the principles established by the ECtHR. As such, the U.K. High Court determined that imbuing the provisions of the CCA with a human rights interpretation would go beyond permissible incremental development in the application of the ECHR.
In contrast, the Supreme Court of Brazil (SCB) issued a decision in June 2022 recognizing an inviolable human rights element of climate change that supersedes domestic law. In PSB v. Brazil, the SCB held that treaties on environmental law are effectively human rights obligations and thus enjoy supranational status. While the case in question focused on Brazil’s climate fund, the decision theoretically suffuses human rights considerations into any suit in Brazil where international environmental law may be applicable.
The supranational status of human rights obligations is also featured in an earlier case from Brazil regarding the rights of Indigenous peoples. On February 8, 2022, the Federal Court of Rio Grande do Sul in Brazil issued its decision on the request of two associations, the Associação Indígena Poty Guarani and the Associaçao Arayara de Educaçao e Cultura, nullifying the licensing process for a coal, sand, and gravel mining project of Copelmi Mineraçao Ltda. The case considered the principle of free, prior, and informed consent (FPIC), which Brazil ratified in International Labour Organization Convention 169 (C169). Plaintiffs argued that there had not been sufficient consultation to fulfill the FPIC requirement, despite the involvement of the National Indian Foundation (Fundação Nacional do Índio or FUNAI), because the specifically impacted Indigenous peoples had not been consulted. The court agreed, nullifying the licensing process for failure to comply with the supranational norm. The court also acknowledged C169’s requirement of special protection of Indigenous peoples’ interests in the use, administration, and conservation of natural resources (including subsoil resources) found in their lands and underscored the right of Indigenous communities to actively participate in decision-making that has the potential to affect their way of life.
In both these cases, the supranational status of human rights norms resulted in the invalidation of contrary actions by the Brazilian government in actions with environmental impact. While not explicitly referenced by the courts, it is worth noting that both FPIC and the right to a healthy environment were underscored by the Inter-American Court of Human Rights (IACtHR) in the 2020 decision Lhaka Honhat Association v. Argentina. In contrast, the U.K. High Court noted that the ECtHR has not yet ruled on the ECHR’s relationship to climate change.
While this may explain some of the differences in rulings of the courts in these countries, the variation in outcomes between countries indicates that the topic of human rights cannot presently be considered dispositive of the legal architecture for climate change, despite the willingness to consider the topics together.
C. The Rights of Nature
The legal movement for the rights of nature saw several new successes in 2022; by the end of October, the number of countries and Indigenous nations that have codified the right in some form rose to thirty-nine.
The movement’s first European achievement is included in the numbers for 2022. The Mar Menor, an endangered lagoon off the southeast coast of Spain, was the first European recipient of the right. The Spanish legislation, passed in September 2022, provides the Mar Menor with legal representation, made up of a team of local caretakers, including public officials, who can take action to defend the lagoon from further pollution.
In February 2022, Panama became the second country to codify the rights of nature into national law; Bolivia was the first in 2011. The new Panamanian legislation defines nature as “a unique, indivisible and self-regulating community of living beings, elements and ecosystems interrelated to each other that sustains, contains and reproduces all beings,” and extends to it various rights, including the “right to be restored after being affected directly or indirectly by any human activity.”
The first meeting of the International Rights of Nature Tribunal was also held in 2022. The Tribunal began on July 18, 2022, with judges spending over ten days traveling across the Amazon rainforest, listening to claims of ecological destruction from Indigenous leaders and migrants. At the end of their journey, the Tribunal judges delivered portions of their verdicts, which called, in part, for corporate executives to meet with Indigenous communities affected by the ecological destruction caused by their operations, for nature to be given a voice in policy-making, and for “companies and people destroying the Amazon . . . to repair the forest.”
India also had a rights of nature milestone this year. In April 2022, an Indian court ruled that nature should be granted “all corresponding rights, duties and liabilities of a living person.”
In addition, the Constitutional Court of Ecuador, in late 2021, upheld its past rulings on the rights of nature to protect the Los Cedros Forest from mining and other extractive industries. The ruling is critical in that it directs the court to develop binding jurisprudence to protect the rights of nature. The court went even further in January 2022, when it became the first country to grant legal rights to individual wild animals in the landmark Estralita case.
National legislation successes were not the only such developments in 2022. This year has also seen increasing calls to add the definition of “ecocide” as a fifth international crime to the Rome Statute of the International Criminal Court, in addition to genocide, crimes against humanity, crimes of aggression, and war crimes.
The year 2022 also saw the publication of the report, Law in the Emerging Bio Age, from The Law Society. The report draws on scientific developments, Indigenous understanding, and legal developments to call for rights to be granted to nonhumans, which “communicates our dependence on and a greater role for nature in decision-making.”
Finally, on March 7, 2022, the United Nations Environmental Assembly adopted a resolution connecting animal welfare to environmental protection and sustainability. Though not explicitly connected to the global rights of nature movement, the Resolution emphasized the importance of improving global animal welfare to the U.N.’s goals concerning One Health and Harmony with Nature and stated that animal welfare is connected to human well-being and environmental sustainability.
III. Business and Human Rights Developments: The U.N. Accountability and Remedy Project Update
The 2022 report from the Accountability and Remedy Project of the Office of the U.N. High Commissioner for Human Rights (OHCHR) began with the important reminder, “The lack of accountability and remedy in business and human rights cases demands urgent attention from both State and business actors, not least because the right to remedy is a core tenet of the international human rights system.” The Accountability and Remedy Project (ARP) aims to strengthen the implementation of the remedy pillar of the U.N. Guiding Principles on Business and Human Rights (UNGPs), the global framework for addressing human rights abuses connected to corporate activity. Under the UNGPs’ three-pillar “protect, respect, remedy” approach, states are recognized as the principal duty-bearers in protecting human rights, corporations have a responsibility to respect human rights, and both states and corporations bear responsibilities for ensuring access to remedy when human rights abuses occur.
The ARP, now in its fourth phase, has engaged in more than eight years of research and consultations across the globe. Earlier phases focused on the different remedial systems referred to in the UNGPs: phase one (ARP I) on state-based judicial mechanisms, such as courts; phase two (ARP II) on state-based, non-judicial grievance mechanisms, such as regulators and national human rights institutions; and phase three (ARP III) on non-state-based grievance mechanisms, such as those created by companies. The current phase (ARP IV) is devoted to the dissemination and implementation of the guidance identified in the earlier phases.
As detailed in the ARP IV report, that process is well underway. In 2022, it included the publication of an OHCHR report on remedy in development finance that drew heavily on ARP guidance. For years, civil society organizations (CSOs) have documented human rights violations linked to investments by development finance institutions (DFIs) and sought accountability for affected communities. The OHCHR report argues for “a stronger commitment and more proactive, robust approaches to remedy” within DFIs. It underscores the importance of access to remedy, addresses the responsibilities of different parties in DFI-funded projects to remediate human rights harms, and offers recommendations to improve access to remedy in practice. The report, with its emphasis on remedy as “the core of human rights,” along with its practical guidance, is an important contribution to ensure that DFIs “address harms, advance sustainable development and make more people whole.”
The ARP also focused this year on the connections between human rights due diligence regimes and access to remedy, and hosted a consultation on that issue, which is summarized in an addendum to the ARP IV report. The UNGPs advise that companies should carry out human rights due diligence “to identify, prevent, mitigate and account for how they address their adverse human rights impacts.” In recent years, an increasing number of jurisdictions have adopted mandatory human rights due diligence legislation, and this year, the European Commission adopted a proposal for an EU-wide law. In May 2022, OHCHR submitted feedback on the Commission’s proposed Directive, informed by the ARP’s work, which highlights areas where the proposed Directive should be revised to better align with the UNGPs and to improve its ability to advance human rights through due diligence.
Beyond the developments highlighted above, the full ARP IV report demonstrates the breadth of the Project’s work and its relevance to the rapid developments in the field of corporate accountability and access to remedy. For example, the report describes the ARP’s support for various national action plans on business and human rights, and the ARP IV report addendum includes key takeaways from a consultation on access to remedy in the technology sector. The ARP is also developing a series of practical guidance documents to be released soon.
Despite this progress on numerous fronts, the ARP IV report warns, “[T]he fact that accountability and remedy for business-related human rights harms remains so elusive in practice shows the scale of the challenges ahead.” It concludes with recommendations that business entities and others who operate non-state-based grievance mechanisms should: implement existing guidance; share experiences and lessons learned; and “meaningfully and proactively engage” with external stakeholders, including unions, affected communities, and CSOs “to ensure that such grievance mechanisms are properly responsive to the needs” of those intended to use them.
IV. Accountability and Remedy for Atrocity Crimes in Ukraine
Credible reports of violations of international humanitarian law and international human rights law by Russian forces, since its invasion of Ukraine on February 24, 2022, have been documented by U.N. fact-finding bodies, nongovernmental organizations, and others. The widespread occurrence of summary executions, unlawful confinement, torture, rape, and other sexual violence strongly supports the view that war crimes, crimes against humanity, and genocide have been committed against Ukrainians.
Consequently, a November 14, 2022, U.N. General Assembly resolution recognizes that the Russian Federation should be held accountable for violations of international law. It also states that the Russian Federation “must bear the legal consequences of all of its internationally wrongful acts, including making reparation for the injury, including any damage, caused by such acts.” The American Bar Association (ABA) has also expressed condemnation of the invasion and called for accountability for atrocity crimes committed in Ukraine.
In addition to actions by the International Criminal Court, the International Court of Justice, and the European Court of Human Rights, Ukrainian courts are pursuing prosecutions of the perpetrators of these atrocity crimes. Other countries have also opened investigations for potential domestic prosecution, based on their national laws, for crimes committed on Ukrainian territory, including Germany, Lithuania, Poland, Spain, and Sweden.
In the United States, the violations and abuses have sparked bipartisan efforts in Congress to strengthen justice and accountability measures. These measures include repairing critical gaps in existing legislation that authorize criminal and civil actions in United States courts against perpetrators of atrocities and serious human rights abuses committed abroad. The ABA has addressed these gaps in a resolution (No. 502), passed in August of 2021. On the criminal side, the resolution recommends broadening the reach of the War Crimes Act, eliminating or lengthening time limitations for prosecutions, expressly adding command responsibility as a basis for liability, and enacting a crimes against humanity statute. On the civil side, it recommends broadening the class of defendants covered by the Torture Victims Protection Act and making the Alien Tort Statute expressly extraterritorial.
Although many of the recommended measures have been of interest to members of Congress for some time, the reports of Russian crimes in Ukraine spurred legislative action. On May 18, 2022, senators from both parties introduced the Justice for Victims of War Crimes Act, S. 4240. An identical version of the bill was introduced in the House of Representatives. The bill extends the War Crimes Act to reach any defendant who is present in the United States, regardless of whether, as currently required, the victim or perpetrator is a U.S. national. The bill also eliminates the statute of limitations, which under current law is an unrealistically short five years in cases not resulting in death. The bill does contain a potential political limitation on its use, requiring the Attorney General to certify that prosecution “is in the public interest and necessary to secure substantial justice.” Both the House of Representatives and the Senate passed the bill in December 2022, and it was signed by the President and became law on January 5, 2023 (Pub. L. No. 117-351).
On May 5, 2022, two Democratic senators introduced the Alien Tort Statute Clarification Act, S. 4155. The Alien Tort Statute provides civil redress in United States courts to aggrieved aliens for torts committed in violation of the law of nations or a U.S. treaty. The bill clarifies that the statute applies extraterritorially. The clarification is necessary in light of Supreme Court precedent, holding that the statute generally applies only to conduct occurring within the United States. The bill has been referred to the Senate Committee on the Judiciary. Efforts are also being made to close legislative gaps in immigration laws, with the introduction in April of this year of the Human Rights Violators Act of 2022, S.B. 4021.
On September 28, 2022, the United States Senate Committee on the Judiciary held a hearing, “From Nuremberg to Ukraine: Accountability for War Crimes and Crimes Against Humanity.” The hearing reviewed legislative and executive efforts on accountability in Ukraine. The executive efforts include the creation of a War Crimes Accountability Team in the U.S. Department of Justice to help Ukraine identify, capture, and prosecute persons responsible for war crimes and atrocities committed there. ABA President Deborah Enix-Ross submitted a statement to the Committee for that hearing. In it, she urged Congress to expand jurisdiction under the War Crimes Act to include “present-in” jurisdiction, eliminate the statute of limitations for war crimes, and adopt a crimes-against-humanity statute.
The bills described above do not cover all needed legislative changes. Nevertheless, they are important steps toward the improvement of justice and accountability for victims, both in Ukraine and throughout the world.
V. Women Judges in Afghanistan
The situation of the women who were judges in Afghanistan in August 2021 remains one of the gravest crises. As the stories of the brave women judges fade from the front pages, the situation of some eighty women judges who remain trapped in Afghanistan is compounded by those who wait in temporary holding environments. In its September 2022 report, “Afghanistan Crisis Update, Women and Girls in Displacement,” Relief Web reported that Afghan girls in Afghanistan are denied access to education. On October 3, 2022, Sima Bahous, the United Nations Undersecretary-General and Executive Director for U.N. Women, noted in her statement: “Confined to their homes, excluded from work, murdered in classrooms—this is what faces Afghan women and girls. With inequality imposed everywhere, nowhere is safe. Friday’s suicide attack in Kabul killed or wounded many students who were simply taking an exam. The majority were young women.”
Speaking specifically to the return of the restriction on women and girls obtaining education, the Undersecretary General and Executive Director for U.N. Women explained the criticality of education in advancing the cause of women. The reversion to removing educational opportunities corresponds to the suspension of all women judges in their roles in Afghanistan. Regarding the rights of all Afghans, regardless of gender, Ms. Bahous said:
Education is a fundamental human right and a driving force for the advancement of social, economic, political, and cultural development, a vision agreed at the U.N. General Assembly’s recently concluded “Transforming Education Summit.” I join the U.N. Secretary-General in his call for the de facto authorities to protect the rights of all Afghans—regardless of ethnicity or gender—to access education safely and securely. I urge the de facto authorities to take immediate action to protect the full rights of Afghan women and girls and to hold perpetrators to account in line with international standards.
For those few Afghan women and others who have been successful in obtaining entry to the United States through the U.S. Special Immigrant Visa Program, the job opportunities for them in the United States fall far below the skills and talents they used to support their families in Afghanistan before the withdrawal in August 2021. For Afghan women judges, the situation is even worse. As Judge Patricia (Patti) Whalen of the International Association of Women Judges (IAWJ) noted:
Because of the harsh conditions of winter, we are trying to get the remaining 67 judges out of Afghanistan by the end of the year and into Pakistan or other countries. We are working with Argentina, Canada, Germany, and Spain to help place our judges. One of the biggest issues we ran into is immigration. We cannot get a timeline on the U.S. P1 process, and depending on who you talk to the timeline may be anywhere from six months or more. While US immigration awaits government authorization, the refugee process hasn’t begun in Pakistan. The U.S. immigration process for us feels like standing on shifting sand. On top of this, there is also a fair amount of unrest in Pakistan.
The IAWJ reports that to date, they have been able to get approximately 185 judges and their families out of Afghanistan, which in total is more than 1,000 people. Currently, there are several judges in the United Arab Emirates still awaiting processing. Of the women judges who have been relocated, approximately twenty-four judges have gained entry into the United States. A concern is the lack of English language skills, even though the judges have made efforts to learn English.
According to Judge Whalen, time is running out for the judges still in Afghanistan. The harsh winter is coming, and now the Taliban is prohibiting male doctors from treating women, but there are no women doctors, so there is no healthcare for women. Judge Whalen has promised “all of our women judges” in Afghanistan “that we would forget nobody and leave no one behind. We were determined to do what we could.”
Through a variety of projects and programs, efforts are underway to provide full scholarships for those successful in exiting Afghanistan to obtain LL.M. degrees. The view is that those graduating from the LL.M. program successfully will be able to eventually use their extensive legal training, provided in part through U.S. State Department or U.S. Department of Justice-funded opportunities, to advance legal careers in their adopted counties.
The effort to relocate Afghan women judges as the withdrawal occurred in August 2021 was almost exclusively funded through private organizations, like the International Association of Women Judges. Few of the women judges made their way into the United States initially, but slowly, the system is beginning to allow more of the displaced Afghan women judges to enter the United States.
Programs have been established to advance English language skills designed to improve their Test of English as a Foreign Language (TOEFL) scores, which is key to moving on to further education and career transition. Of particular challenge, however, is the age of some of the judges who were able to relocate. Starting over this late in their career journey, in a new land and in a new language, is more than a little challenging. As one example, Judge Kamila Noori served on the trial, appellate, and Supreme Court of Afghanistan before she was relocated. In an interview with Judicature, published in the Fall/Winter 2021–2022 edition by the Bolch Judicial Institute at Duke Law School, Judge Noori and another colleague, Judge Parsa, described their background, training, and positions before August 2021, contrasting those with where they find themselves now.
In the meantime, Senate Bill 4787, the Afghan Adjustment Act, is stalled in Congress. The Act is intended to (1) provide a permanent status for Afghan evacuees, (2) establish rigorous vetting requirements and criminal inadmissibility grounds for applicants to the pathway to permanence, and (3) expand and improve upon efforts to protect Afghans left behind. Despite bipartisan support and energized efforts to ensure that this pathway for citizenship is moved forward, the bill remains without action in the 117th Congress.
VI. Women-Led Revolution in Iran
Mahsa Amini (aka Jina Amini), a 22-year-old Kurdish-Iranian woman, died in the custody of Iran’s Morality Police in September 2022. She was arrested for violating the hijab rules. According to the U.N. Human Rights Office, Amini was “beaten on the head with a baton” and had her head “banged against” the police vehicle so hard that she fell into a coma. She died three days later.
Amini’s death sparked women-led demonstrations that have continued for over several months and spread to many regions and segments of society. Thousands of women have taken to the streets, burning their hijabs, cutting their hair, and chanting “woman, life, freedom,” not just in Tehran but in over fifty other cities.
After the Islamic revolution of 1979, the Iranian clerks imposed a strict dress code, and head-covering via hijab became mandatory. Until the 16th century, the hijab was not obligatory; it became standard during the Safavid dynasty. In 1936, Reza Shah banned the hijab, and his successor Mohammad Reza Shah liberalized that law by allowing women who wished to do so to wear hijab. Reza Shah raised the age of marriage of girls from nine to thirteen and allowed women to attend university. These changes were unacceptable to the Islamists, to whom control of women was one of the critical tenants of the revolution.
Khomeini ordered a mandatory hijab right at the very beginning of the revolution. Immediately, Iranian women began to protest that law staging a strike that began on March 8, 1979, International Women’s Day. To many Iranian women who fought for the revolution, laws mandating hijab seemed like a betrayal: “We didn’t have a revolution to go backward” was the rallying cry of women protesting on the streets of Tehran on March 8, 1979. The cries of the Islamists were different, and two of their slogans during the 1979 revolution were: “wear a veil, or we will punch your head” and “death to the unveiled.”
By 1981, it became mandatory for any nine-year-old girl to wear a hijab. Substantial punishment was enacted for any woman who failed to wear one “properly,” ranging from imprisonment to fines, not to mention beatings and other extrajudicial yet state-sanctioned violence such as having acid thrown at women’s faces. In 1983, the Islamic Consultative Assembly ordered that women who do not cover their hair in public can be punished with seventy-four lashes. Since 1995, unveiled women could be imprisoned for sixty days. The Morality Police was formally set up in 1990.
In addition to compulsory hijab, other legal changes discriminating against women soon followed, introducing forced gender segregation at work, in schools, and in public places. In addition, laws governing divorce, child custody, inheritance, citizenship, and retribution were rewritten with provisions aimed against women. Under the Sharia-influenced Civil Code of the Islamic Republic, husbands have control over their wife’s fundamental life decisions: they can prevent their wives from obtaining a job, can determine where and how they can live, whether they can travel, or even if they can get a passport. Moreover, the Civil Code creates a duty that a woman must satisfy the sexual needs of her husband at any time and on-demand according to the orthodox interpretation of tamkin, or submission, under Sharia law. Under the Criminal Code, women often suffer higher penalties at a younger age. For example, nine-year-old girls can be held criminally liable but boys only at the age of fifteen.
Many women’s protests followed during the last forty years, but none succeeded. The brutal killing of Amini seemed like a final straw for Iranian women who now have endured forty years of unequal, unjust, inhumane, and infantilizing laws. According to some accounts, there is hardly a woman in Iran who has not been harassed at one point or another by the Morality Police. But the current women-led revolution is about far more than just hijab; it is about the fundamental human rights of women and broader demands for social and political change.
The Islamic Republic has been attempting for the last forty years to institute a legal and political system based on religious norms dating to seventh-century Islam. In their view, an ideal Iranian woman is an antithesis of the corrupt sexualized Western woman. There are many versions of Islam, but the rulers of the Islamic Republic seem to believe that the subjugation of women is needed under the “true” interpretation of Islam. The international legal regime, which grants women human rights, is seen as a cultural artifact of that immoral and corrupt West rather than as a universal human standard. Hijab is thus a symbol of a proper Islamic attitude. In practice, the hijab is a political tool to suppress women; it has long lost its primarily religious significance.
The brutal crackdown on peaceful protests is continuing and escalating. Human rights groups claim that over 300 protesters have already been killed, including forty children. Over eighteen thousand were arrested. The Iranian court just issued the first death sentence for a peaceful protester for “enmity against God” and “spreading corruption on Earth.” Other protesters are receiving long prison sentences. This women-led revolution is the biggest show of dissent in Iran since the 1979 revolution and a huge challenge to the Iranian theocracy.
Many Western countries have condemned Iran’s brutal response and imposed sanctions on officials involved in the crackdown. The United States, which was seeking Iran’s removal from the U.N. Commission on the Status of Women, finally succeeded in late 2022, while the U.N. Human Rights Council condemned the violent crackdown and launched an investigation into abuses committed by the Iranian state. But these international actions have been insufficient and the brutal crackdown has continued and is maybe even escalating. As of this writing, the government of Iran has instituted stronger enforcement of hijab rules and new criminal penalties for anyone encouraging women to unveil. Meanwhile, Iranian women continue their fight against the gender-based persecution and gender-based segregation and exclusion risking their lives.
