"The needs of public conscience can become a recognized source of law […] and a tribunal that emanates directly from the popular consciousness reflects an idea that will make headway: institutionalized powers and the people, from whom the former claim legitimacy in actual fact tend to diverge and only a truly popular initiative can try to bridge the gap between people and power."—Lelio Basso
Communities and individuals all over the world have been, and are being, affected by fracking operations. Frequently, such affected communities and individuals face powerful corporations and governments unresponsive to the voices of those claiming that their lives and communities have been blighted by fracking. While there is immense public resistance to fracking all over the world, and increasing evidence of health and environmental impacts, it is difficult for people to know where to turn for help and a hearing.
It is against this background that, in early 2015, a coalition of human rights lawyers and academics were granted the opportunity to put fracking on trial at hearings to be conducted in March 2017 by the Permanent Peoples' Tribunal (PPT). The coalition of three groups, the Global Network for the Study of Human Rights and the Environment (GNHRE), the Environment and Human Rights Advisory (EHRA) and the Human Rights Consortium (HRC), joined by partners and endorsers from across the globe, are organizing two weeks of hearings on the human rights impacts of fracking, one week in the United Kingdom and one week in the United States.
The tribunal's panel of judges will be asked to determine whether there is sufficient evidence to indict nations on charges of "failing to adequately uphold universal human rights as a result of allowing unconventional oil and gas extraction in their jurisdictions." In addition, mini-tribunal hearings are currently being organized for Canada, Australia and other locations prior to the main hearings. The findings of mini-tribunals will provide important evidence to the plenary tribunal hearings and are an opportunity for people all over the world to get directly involved in examining their own situations against international human rights law standards.
Using the skills of leading international jurists of the highest standing, the main tribunal process will authoritatively outline the human rights obligations of states with respect to the permitting and governance of fracking operations. The hearings will be conducted in line with the best practice standards on human rights and the environment, most prominently laid out by Professor John Knox, the United Nation's first independent expert on human rights and the environment.
Perhaps most importantly, the tribunal's aim is to offer a legal framework and internationally recognized, high-profile forum for those who might not otherwise have a voice in local or national decision-making around the costs and consequences of extreme energy developments affecting their own lives and communities.
The aim of the tribunal is to recover the authority of the people when states and international bodies fail to protect them.
The PPT is a powerful platform for such an aim. Promoted by the Lelio Basso International Foundation for the Rights and Liberation of Peoples, the PPT was founded in June 1979, in Bologna, Italy, by a broad spectrum of legal experts, writers and other cultural and community leaders (including five Nobel Prize laureates) from 31 countries. The PPT is rooted in the historical experiences of the Bertrand Russell War Crimes Tribunal (1966-67), an activist initiative to indict the US government for the war in Vietnam and on the dictatorships in Latin America (1974-1976). The PPT has an established track record of hearings and judgments on behalf of those suffering injustice at the hands of states and corporations.
Envisioned as a forum for asserting peoples' fundamental rights, as laid down in the Universal Declaration of Human Rights and other international human rights agreements, the methodology adopted by the PPT draws on an ongoing process of documentation and research firmly grounded in social realities and responsive to the voices of the powerless.
As Maude Barlow, former senior adviser on water to the 63rd president of the UN General Assembly, wrote while traveling to Mexico as a jurist for a PPT on the Canadian mining industry, "I am reminded that most governments and their corporate elite form a kind of global royalty who have more in common with one another than with their own people. All the more reason for us to build our people's movement and take back power from below."
The PPT attempts to take back that power from below by bridging gaps in international law so as to adequately address the present and future needs of peoples as well as to identify various emerging challenges. The aim of the PPT is to recover the authority of the people when states and international bodies fail to protect them for whatever reasons.
Complaints are brought to the PPT by people and communities who have suffered harms or by groups or individuals representing them. PPT sessions call together all the parties concerned and offer those accused of human rights failures the possibility to make their own arguments heard. The panel of judges is selected for each case by combining experienced jurists on the PPT's permanent list and respected representatives from civil society who are recognized for their competence and integrity. It is unsurprising, in this light, that PPT sessions have emerged as enduring and highly respected sites for the systematic documenting of harms and judgments of wrongs.
The struggle of the tribunal is against the "crime of silence."
The PPT process is more urgently needed than ever. In sociological terms, the law is a social construct in which power and political privilege play a significant role in its creation, in its application and in access to the legal system. To quote Irish judge Sir James Mathew from the turn of the 20th century: "justice is open to all, like the Ritz Hotel." This is increasingly the case, even in nations we think of as democratic. More troubling still, in today's increasingly neoliberal world, powerful transnational corporations are now frequently involved in the law's creation, and in its implementation, such that the vast majority of social and environmental harms produced by transnational corporations are technically "legal" and at best weakly regulated. The revolving door between business and regulatory agencies is now more like an open corridor in both the United Kingdom and the United States.
It is partly in response to this that new initiatives for the "doing of law" have emerged. In a sense, the PPT is an alternative to the law of the powerful. Jayan Nayar, lecturer in the law in development program at the University of Warwick, has argued that PPT sessions refuse to accept the power of law to negate the suffering of people by normalizing violence, for example, by dismissing it as a "misfortune."
The struggle of the PPT is against the "crime of silence," as Bertrand Russell put it, which has enabled the powerful to silence the voices of pain through the processes of politics and law, whether that is in the courts, legislative bodies of state, international negotiations, media or education. PPT sessions explicitly give priority to marginalized voices and no cause of peoples' struggle is beyond PPT jurisdiction. That much is clear in the wide range of hearings the PPT has conducted.
From June 1979 to the present date, the PPT has held some 40 sessions. Past PPT sessions have heard the cases of the communities of Chernobyl; workers in garment industries; those affected by the operations of the Freeport/Rio Tinto and Monsanto corporations; and the victims of industrial hazards such as those that occurred in Bhopal, India, where 15,000 local residents were killed by toxic gases resulting from an explosion at the Union Carbide Corporation pesticide factory in 1984. In the latter case, the hearings helped to improve medical facilities for the victims, an obligation undertaken by Union Carbide as part of the controversial settlement with the Indian government. The hearings also served as a source of embarrassment to both Union Carbide and the Indian state about the enduring inadequacy of Union Carbide's response.
As Nayar points out, "It is true that the PPT has no power to compel the 'accused' to appear before it, nor to enforce its judgment, [but] rather, it serves as a legitimating forum. Its judgments stand as a public record of the truth - and of the crime of denial. The doing of law for the PPT is essentially a process of listening, giving to the narratives of suffering the dignity denied them elsewhere."
Why a Permanent Peoples' Tribunal on Fracking?
The main reason for a tribunal on fracking is the passionate concern and need to hear the voices of the affected.
By putting fracking on trial in a human rights tribunal, the hearings themselves will usher in a potential sea change in how civil society, governments and industry frame their arguments for and against extracting the planet's remaining fossil fuel resources. It will no longer be possible to ignore, with impunity, the human rights implications of unconventional oil and gas developments.
Fracking is a classic case in which human rights and the environment come together. The environmental and human implications of these processes are profoundly entangled. The process of hydraulic fracturing involves pumping fluids under high pressure underground to crack shale and other source material to stimulate the release of hydrocarbons. The PPT uses the term "fracking" to refer to the extraction of unconventional sources of oil and gas from all types of materials such as shale, coal-bed methane/coal seam and tight sands. This type of fossil fuel development has come to be known as extreme energy.
This PPT session also examines the whole assemblage of actions, processes and operations involved. Unconventional oil and gas extraction involves a complex development process that not only relies on fracking, but also requires land and mineral rights acquisition, water rights acquisition, pad construction, well drilling, casing, hazardous waste disposal, well plugging, and abandonment, as well as associated infrastructures such as waste injection sites, waste treatment facilities, roads, water impoundments, storage facilities, gas and hazardous liquids pipelines, compressor stations and export terminals. All of these can have implications for affected communities. The tribunal will therefore examine evidence from all stages of the development process and the full range of human rights implications from all of these processes, including, but not limited to, fracking itself.
"We are violating the rights of future generations to have the biological resources that they need."
"Fracking" has also been chosen for this PPT because of its iconic status as an issue blending human rights and environmental considerations on a truly international scale. Over the past 10 years, unconventional fossil fuel developments and fracking have been taking place all over the world, with the United States leading the way in technology, financing and promotion. In the past six years, the growth in fracking has seen the United States emerge as a leader of natural gas and related materials production globally, leading some to tout a "shale revolution" that has changed the face of global energy markets and shaken the foundations of certain geopolitical alliances.
All of this growth in unconventional gas and oil development has boomed despite local public opposition and increasing numbers of citizens claiming that their rights to clean drinking water, clean air, food safety, economic self-sufficiency, housing, information about hazardous materials and toxics, and access to appropriate health care have been violated or ignored. That this is now a global phenomenon occurring across the United States, United Kingdom, Australia, Canada and South Africa, and includes nations in Latin America, Eastern Europe and Southeast Asia, gives this PPT session particular importance.
Sandra Steingraber, a respected ecologist, author, cancer survivor and mother, described our continued dependency on fossil fuels, fracking and all facets of extreme energy extraction in an interview with Earth Island Journal in December 2012 as "the biggest human rights issue of our time." As she put it, "We are violating the rights of future generations to have the biological resources that they need."
Many of the human rights allegations emerging around fracking have been targeted at corporations taking part in or funding the developments. However, corporations and other nonstate actors do not yet bear direct human rights duties under international human rights law. That solemn duty lies firmly on the nation-state. Nation-states and local governments, not corporations, are also the authorities tasked with approving or denying permits and implementing and enforcing the environmental and public safety laws that were created to protect citizens and ecosystems. That is why this PPT process will consider the indictment of nations, rather than corporations; it is vital to establish a precedent addressed to those that bear the direct legal responsibility to uphold human rights norms and the rule of law.
Since 2011, only two other assessments of human rights obligations related to hydraulic fracturing have been completed, one for New York State and the other for the United Kingdom. This PPT session will offer a particularly powerful analysis of the issues and create a powerful precedent to inform future legal actions all over the world.
How Can You Get Involved?
Leading up to the tribunal hearings in March 2017, testimony will be collected from witnesses in the United States, United Kingdom and other locations around the world. Some of these other locations may choose to hold preliminary mini-tribunals in their own countries. Findings from these mini-tribunals can then be submitted to the plenary hearings in 2017. If you are in an affected community, or want to get involved, it's possible that something can be set up in the country where you live. You may wish to volunteer to collect and collate evidence; you may wish to tell your own story; you may wish to offer your expertise and time if you have specialist knowledge of the issues; you may have the networks and knowledge to set up a mini-tribunal hearing in your own country.
The key testimony for the tribunals will be based on simple, clear, personal accounts of direct impacts that fracking has had on individuals, families and communities. These stories will be collected, documented and publicized broadly. This "situated knowing" by personally impacted witnesses is the key in human rights cases to awakening moral imagination and evoking the compassion and outrage that is necessary for systemic change. All evidence will be assessed and evaluated carefully by lawyers experienced in the evaluation of legal evidence. Each story could be part of a larger story, carefully validated and presented to the tribunal.
Other forms of submitted evidence for the hearings will include expert testimony on the practices and impacts of fracking, peer-reviewed research, reports from preparatory academic round tables and completed human rights impact assessments. Once the plenary hearings get under way, they will examine a full range of documented and interconnected human rights concerns through six sub-cases on fracking: 1) human health impacts; 2) environmental, ecosystem, hydrologic and seismicity impacts; 3) fuels infrastructure and pipeline impacts; 4) climate impacts; 5) participatory rights; and 6) social costs.
The hearings, both during the mini-tribunals and main tribunal, will play a unique and vitally important role in presenting and rehearsing testimony and arguments to lay down an informal but highly expert precedent with the potential for future use in national and international courts of law. The aim is to produce a highly influential, legally literate and serious judgment of the issues by some of the world's finest legal minds, and to serve as a trailblazing example for future legal actions, when and where appropriate.
The Truthout-PPT Fracking Series
This series of articles in Truthout will delve into one of the most powerful tools of the human rights approach, the telling of the story. We will tell the story of the PPT, the stories behind the PPT and the story of the growing awareness of the human rights implications of fracking. We will take an up-close look at what applying a human rights approach to unconventional fossil fuel extraction means in the context of international law and policy, national energy policies, corporate transparency and accountability, and the impacts of extreme energy developments on frontline communities, ecosystems, and local lives and economies. Claims of injury or harm in these stories will be substantiated by reference to scientific studies and/or expert testimony, just as the moral intuitions about right and wrong will be substantiated by reference to human rights norms.
The series aims to provide a deeper understanding of what happens in the sociocultural, psychological, physiological, economic and political life of individuals and communities when the things that they have taken for granted, such as their rights to clean drinking water, clean air, education, and sacred and subsistence land, and even to participate in local and state government decisions, are sometimes slowly, and other times abruptly, removed. We will explore what it means to fight for justice and for people to reclaim their rights to the basic necessities of life, like clean drinking water and safe housing, in the midst of rapid and unfettered fossil fuel exploration, extraction and transportation. Follow along as citizens and communities across the United States, the United Kingdom and the world are finding the courage to express their compassion and outrage and are together reimagining a world that puts care for our common environment and our common humanity first.
Anyone wanting more information and/or to get involved in the tribunal process should go to www.tribunalonfracking.org where there are details about how to become a partner, submit witness testimony and organize smaller, national pre-PPT initiatives, as well as how to help with the crowdfunding of costs.