A Rights-Based Approach to Combating Poverty: Economic, Social & Cultural Rights

The Clinic’s longest-running program has pioneered a rights-based strategy to combat poverty and status-based discrimination. It creatively surmounts barriers to the judicial enforcement of economic, social, and cultural rights while building the capacity of local groups to make use of these rights. Our activities in this area are listed in reverse chronological order below:

 

Gender Parity in International Tribunals: GQUAL Campaign

The under-representation of women affects virtually all international tribunals and monitoring or adjudicating bodies that play key roles in developing international law, human rights, international relations, and cooperation. As of September 2015, the Inter-American Court of Human Rights had no female judges; the International Criminal Tribunal for the former Yugoslavia had 17 permanent judges and only 2 were women; the UN Human Rights Committee had 18 members and only 5 were women. Moreover, a study of the numbers shows that this imbalance has affected most of these international bodies since their establishment.

Beginning in fall 2016, the Clinic worked with the GQUAL Campaign and its lead partner, the Center for International Law and Justice (CEJIL), to advance the GQUAL Campaign for women’s equal representation in international tribunals and monitoring bodies. The Campaign seeks to improve the norms, guidelines, and practices that regulate the nomination and voting processes through which the composition of these international bodies is determined. More specifically, the GQUAL Campaign aims to have a significant number of States incorporate gender parity as a criterion in their nomination and voting decisions, and works to change or introduce new rules, guidelines and mechanisms that promote women’s equal representation into the practices, policies, and normative framework of the targeted international bodies.

The Clinic joined CEJIL’s international research and advocacy initiative to strengthen the normative foundation for the GQUAL Campaign’s advocacy efforts. Over the course of the 2016-2017 academic year, Clinic students prepared a working paper. In March, 2017 Clinic students presented a draft of the paper at a GQUAL Workshop in conjunction with the hearings of the Inter-American Commission for Human Rights in Washington, D.C. (see students’ blog post here). In October, 2017, Clinic students presented the final working paper, Achieving Gender Parity on International Judicial and Monitoring Bodies: Analysis of International Human Rights Law and Standards Relevant to the GQUAL Campaign, at the international GQUAL conference in The Hague (see students’ IntLawGrrls blog post here). In conjunction with the conference, Clinic Director Laurel E. Fletcher participated in a mock debate at the International Criminal Court on the use of gender quotas on international bodies (see video here).

 

Corporate Accountability Project

Each year, international financial institutions (IFIs) provide governments and companies billions of dollars to undertake development projects. Ostensibly, the projects are aimed at improving the welfare of community members through better education and roads, improved health care and governance, and greater access to water and energy. Some projects are also responsible for severe environmental degradation and egregious human rights violations. Many of the largest institutions—the World Bank, the International Finance Corporation, the Inter-American, Asian and Africa Development Banks, and the United States’ Overseas Private Investment Corporation—have created accountability mechanisms to ensure that the projects are developed and implemented in accordance with environmental, labor, and human rights policy. The clinic has worked with partners in a variety of contexts to hold corporations to account when their activities threaten the human rights of local communities.

Study on Community Participation in CAO Dispute Resolution and Audit Procedures.  The Office of the Compliance Advisor Ombudsman (CAO) is the most prominent and influential of the accountability mechanisms established by IFIs. CAO is the independent recourse mechanism for the International Finance Corporation (IFC) and Multilateral Investment Guarantee Agency (MIGA) (the private investment arm of the World Bank).

In 2012, the clinic undertook a study of the CAO to understand how affected individuals participate in CAO’s dispute resolution and audit procedures.  Clinic students compiled data on CAO’s projects for statistical analysis, selected sample projects, and drafted background memos. In 2013, students conducted in-depth interviews of various stakeholders involved in CAO procedures, including CAO staff, World Bank officials, project company representatives, NGO representatives, and members of affected communities about projects undertaken in various countries in Latin American, Africa, Eastern Europe and Asia. The clinic’s final report, which includes policy recommendation for promoting effective community participation is forthcoming.

U.S.-Financed Dam Project in Mexico. In 2010, the Clinic partnered with San-Francisco-based Accountability Counsel (AC) and a coalition of Mexican NGO’s, and indigenous villagers to file a human rights complaint against a U.S.-backed hydroelectric project. Located in Oaxaca, Mexico, the project is financed by the Overseas Private Investment Corporation (OPIC), a U.S. government agency. Conduit Capital Partners began construction although local villagers had not been consulted fully or informed of the health and environmental impacts of the project, which threaten to contaminate local drinking water and fishing areas to produce energy for private companies. The complaint resulted in the suspension of the project. This news story further details work on the project.

Complicity with Human Rights Violations in the Middle East and North Africa. In spring 2009, the Clinic investigated potential legal avenues for holding several multinational corporations responsible for complicity in human rights violations in a country in the Middle East/Northeast Africa region in collaboration with the Genocide Intervention Network (GI-Net). Students investigated whether the companies played roles in specific incidents and analyzed complex, intertwined issues of corporate and human rights law. They briefed GI-Net staff and detailed their findings in five legal memoranda.

 

LGBTI Rights in El Salvador

More than two decades after the conclusion of a bloody civil war, El Salvador continues to wrestle with serious human rights problems. Among them is the systemic violence and discrimination facing the country’s LGBTI community and the near absolute impunity for crimes committed against it—a circumstance described by one advocate as: “They are murdering us and our government is not doing anything but picking up the bodies.”  The clinic conducted a fact-finding mission to El Salvador in 2011 to gather evidence and interview officials, advocates, and affected individuals about abuses and discrimination suffered by the LGBTI community and people living with HIV/AIDS. The findings were compiled in a report, Sexual Diversity in El Salvador, which was released in English and Spanish in July 2012 and highlighted in this news story.

The report and a related expert affidavit drafted by the report’s author serve as useful tools for LGBTI asylum seekers from El Salvador and their advocates.  The latter document and other resources are available from the Center for Gender and Refugee Studies at UC Hastings through a request for assistance

To draw further attention to the issue in the country, a historic conference on LGBT human rights was hosted by the Central American University in San Salvador in March 2013. Clinic faculty and students, together with Salvadoran advocates, government officials, academics, and legal experts, gathered to discuss the most pressing issues facing the LGBT community and how to use available legal tools to increase protections and accountability. The clinic also accompanied LGBTI advocates at a hearing before the Inter-American Commission on Human Rights to testify regarding violence against this community. Video of the hearing held in October 2013 can be viewed here.

Given the complete lack of legal protections for LGBTI individuals in El Salvador, clinic students advanced this work over several semesters by conducting background research and preparing resource materials in Spanish which analyzed gender identity and hate crime laws. Drawing from international human rights standards and a comparative analysis of domestic laws from around the globe, students outlined a legal framework to develop such laws in El Salvador. In the 2014-15 academic year, students presented their findings at a seminar of legislators from El Salvador and other Latin American nations convened by Parliamentarians for Global Action (PGA) in San Salvador in November 2014 (see news story). At the conclusion of the seminar, parliamentarians signed a Statement of Commitment to work in their parliaments to promote and protect the rights of the LGBTI community in accordance with human rights standards.  In September 2015, the Salvadoran National Assembly passed historic legislation to amend the country’s penal code to recognize and punish hates crimes, including against LGBTI individuals (see Spanish language news story). This marks an important advance in providing legal protections to the LGBTI community in El Salvador.

 

Human Rights in California’s Central Valley

One of the richest agricultural regions in the world, California’s Central Valley stretches 450 miles through the heart of the state and is home to one sixth of the state’s population. While California is the eighth largest economy in the world, the Central Valley struggles with unemployment and poverty rates that are far above, and in some counties more than double, the state average. The region is also plagued with levels of air and water quality which violate various federal and state health standards. Many of these communities lack basic infrastructure, clean water, and access to social services. Residents frequently are excluded from political decisions that profoundly impact their day-to-day lives. The conflation of environmental and socio-economic factors results in serious health disparities for low-income communities of color. The clinic has extended and supported residents’ advocacy efforts with the aim of both achieving concrete improvements in living conditions and health, and developing a replicable model for using human rights to stimulate change at the local and state levels.

The Human Right to Water. Water access and quality is a central issue to the well-being of marginalized communities in California. Twenty-one million residents of California lack access to safe drinking water. The U.N. Special Rapporteur on the human right to safe drinking water and sanitation visited California during an official mission to the U.S. in 2011 and reported to the Human Rights Council on numerous barriers to clean water and sanitation facing diverse populations, including small, rural communities, homeless persons, and indigenous groups. In 2012, the clinic began a collaboration with the Safe Water Alliance, a coalition of faith-based, environmental justice, tribal, consumer, and public health advocates that represent communities across California, to lend support to efforts to ensure universal access to clean water from a human rights perspective.

On September 12, 2012, Governor Brown signed in to law AB 685, making California the first state in the nation to legislatively recognize the human right to water. AB 685 aims to ensure universal access to safe water by declaring that “every human being has the right to safe, clean, affordable, and accessible water.” In May 2013, the clinic released a report The Human Right to Water Bill in California: An Implementation Framework for State Agencies. The report draws on domestic and international law to map when state agencies should consider the human right to water, what factors they should consider, and how they should advance the human right to water. The Special Rapporteur’s Legal Adviser, Dr. Inga Winkler, was in residence with the clinic during 2012 and provided important insight and expertise in to the research and drafting of the report. For more information about this work, please visit our news page.  

With its partners, the clinic undertook a number of complementary advocacy initiatives to raise violations of the human right to water taking place in the United States before international human rights bodies. Clinic students drafted a shadow report to the U.N. Human Rights Council—a report issued by non-governmental actors that aims to provide additional and alternative information to that provided by the government—as part of the Universal Periodic Review (UPR) of the United States’ human rights record. Additionally, in the lead up to the UPR held on May 11, 2015, the Clinic coordinated the only consultation session on U.S. environmental issues which was held at Berkeley Law in October 2014, with the participation of Department of State and Environmental Protection Agency officials as well as civil society advocates, academics, and other environmental experts. Topics discussed included: climate change, water issues, and environmental/public health protections for members of vulnerable communities.  A complete agenda with detailed information about the panels and speakers is available here. You can find a document summarizing the day’s discussion, here, a link to the video of the event here, and a news story featuring the event here.

As follow up advocacy to the UPR process, clinic students and faculty traveled to Geneva in March 2015 to present on the right to water at an event focused on human rights issues in the United States and thereby ensuring that the issue of access to safe and affordable water for communities of color was raised as part of the U.S. review (see press release here).  Recommendation 311 of the Human Rights Council’s Draft Report of the Working Group on the Universal Periodic Review specifically calls on the U.S. to advance the human right to water with special attention to disadvantaged communities by “ensuring this human right without discrimination for the poorest sectors of the population, including indigenous peoples and migrants.”

In conjunction with their work on the human right to water, clinic students conducted background research and drafted a shadow report together with their partners from the Safe Water Alliance which was presented to the U.N. Committee on the Elimination of Racial Discrimination (CERD). CERD monitors compliance with the international treaty on racial discrimination and reviewed the United States’ record on racial equality in 2014. The report identifies how communities of color in California are disproportionately impacted by a lack of access to safe and affordable water, with serious implications for health and well-being, and outlines recommendations to prevent and remedy such abuses.

In 2015, clinic students successfully requested a hearing before the Inter-American Commission on Human Rights to highlight the situation of low-income communities and racial minorities across the United States who lack access to safe and affordable water. Clinic partners and other advocates from a range of communities provided testimony to the Commission at a hearing held in Washington D.C. in October 2015.

The human rights of migrants in the Central Valley. In May 2007, clinic students helped Central Valley activists present evidence on shoddy subcontracting operations, inhumane working and living conditions, and language-based exclusion of migrant workers to United Nations Special Rapporteur on the Human Rights of Migrants during his visit to Los Angeles.

In November 2007, clinic students joined nearly 100 Central Valley activists at a day-long workshop in Fresno on the problems facing unincorporated communities and strategies for addressing them. The students distributed Human Rights at Home: The rights to housing, water and political participation in San Joaquin Valley unincorporated communities. The paper discusses the advantages of using international human rights institutions, standards, and advocacy techniques to improve conditions in unincorporated communities. Activists responded with great enthusiasm, reporting that IHRLC’s analysis “opened up important new avenues for their advocacy.”

 

Climate Change Policy Report Released at Copenhagen Conference

In December 2009, the clinic, Berkeley Law’s Miller Institute for Global Challenges and the Law, and the Center for Law & Global Justice at the University of San Francisco School of Law released a report calling on nations to address the human rights impacts of climate change policy at the UN Climate Change Conference in Copenhagen. The report, Protecting People and the Planet: A Proposal to Address the Human Rights Impacts of Climate Change Policy, highlights the unintended consequences of climate change policies, and recommends that states adopt a program for action to develop policies that incorporate international human rights standards. Clinic students attended the Climate Change conference in Copenhagen where they participated in a workshop with Mary Robinson, former President of Ireland and former UN High Commissioner for Human Rights, Berkeley Law faculty, and other international climate change experts.

Clinic students also used social media to promote their ideas and launched a Facebook page to disseminate an open letter to President Obama signed by U.S. social justice groups calling on the President to promote climate justice at Copenhagen and beyond.

Continue reading on the Resources and Publications Page
Video of the Workshop

 

Collective Remedies for Violations of Economic, Social, and Cultural Rights

In Spring 2007, the clinic partnered with the University of San Andres in Argentina in a multinational effort to elaborate the minimum core content of the right of access to justice in international human rights law. The goal of the project is to inform the understanding of the Inter-American Commission on Human Rights of the nature and scope of state obligations to provide effective remedies to protect social, economic and cultural rights. Clinic students worked closely with San Andres Professor and Inter-American Commissioner Victor Abramovich to analyze the use of large group litigation, such as class actions, to vindicate collective social rights in the United States.

 

Civil Registration and Education Case (Yean v. Bosico v. Dominican Republic)

In 1998 clinic students began working to expand human rights protections of Dominican-born children of Haitian migrant workers living in the Dominican Republic. The clinic, in collaboration with the Center for Justice and International Law and the Movimiento de Mujeres Dominico-Haitianas, filed a complaint before the Inter-American Commission for Human Rights on behalf of our clients, two young girls who were denied birth certificates. Without official recognition of their birth in the country, our clients and hundreds of thousands of other Dominican-born children of Haitian ancestry are denied the right to attend public school and are vulnerable to arbitrary expulsion. In 2003, the case was referred to the Inter-American Court of Human Rights .

On October 7, 2005 the Inter-American Court issued a historic ruling recognizing the right of Dominican-born children of Haitian ancestry to nationality and education (press release: English | Spanish). The Inter-American Court found the Dominican Republic had discriminatorily denied our clients their birth certificates and violated their right to nationality, equal treatment, a name, among other rights. The binding ruling ordered the Dominican Republic to reform its birth registration system, open primary schools to all children regardless of their race, ethnicity or legal status, hold a public ceremony to recognize responsibility for the violations, and ask forgiveness from the victims in addition to other measures.

The case has received widespread attention, including articles in the Miami Herald and the New York Times and in July 2015, clinic faculty published an op-ed in the New York Times “Dominicans Must Stop Expulsion of Haitians” in the face of renewed legal exclusion of Dominicans of Haitian descent.

Financial support for the litigation came from the Mertz Gilmore Foundation.

 

Mass Expulsions from the Dominican Republic

The clinic initiated legal action against the Dominican Republic before the Inter-American Commission for Human Rights to combat illegal mass expulsions of Haitians and Dominicans of Haitian ancestry from the Dominican Republic. Along with a coalition of non-governmental organizations (NGOs), the clinic represented seven families who were illegally expelled from the Dominican Republic. The lawsuit sought changes to the Dominican’s deportation system to ensure due process guarantees.

As a result of our efforts, in spring 2002 the government issued “safe passage” documents to our clients that permitted them to travel to and work in the Dominican Republic pending the outcome of the court case.

Advocates from the Dominican Republic, Haiti, and the United States continued to litigate the case in the Inter-American System and in August, 2014, the Inter-American Court of Human Rights issued a sweeping judgment against the Dominican Republic finding the state responsible for numerous human rights violations.

 

Dominican Republic and Haiti: Forced Migration Study

As part of its activities to promote the human rights of Haitians in the Dominican Republic, the clinic conducted a study of forced migration of Haitians from the country titled “Unwelcome Guests: A Study of Expulsions of Haitians and Haitians of Dominican Descent from the Dominican Republic to Haiti.” This unique, interdisciplinary study utilizes demographic data as well as interviews to identify patterns of the forced migration and experiences of Haitians and Dominicans of Haitian descent. The study offers the first statistical analysis of migration flows through a demographic assessment of this vulnerable population. The study indicates that those leaving the country are not afforded due process and frequently suffer abuses at the hands of government officials. These findings challenge many prevailing assumptions about the profile and treatment of this vulnerable population. To address the antecedents to the outflows as well as the abuses of migrants, the study makes recommendations to improve the migration system between the two countries so as to reduce the vulnerability to human rights deprivations of Haitians in the Dominican Republic.

En Espanol
La Clínica Internacional de Derechos Humanos de Boalt Hall ha llevado a cabo el informe “Huéspedes Mal Recibidos: Un Estudio de las Expulsiones de Haitianos y Dominicanos de Ascendencia Haitiana de la República Dominicana a Haití,” trabajo realizado sobre la base de información demográfica y entrevistas que tiene por objeto identificar los patrones de la migración forzada y las experiencias de haitianos y dominicanos de ascendencia haitiana expulsados de la República Dominicana a Haití entre agosto del 1999 y julio del 2000. El estudio provee el primer análisis estadístico de flujos migratorios a través de una investigación demográfica de esta población vulnerable. Si bien la migración forzada de haitianos de la República Dominicana ha sido tema de varios informes y planteos legales internacionales, ha habido poca información cuantitativa referida a este delicado asunto.

El estudio ofrece algunos hallazgos importantes acerca de los patrones de salida, las características de la población afectada y el tratamiento recibido por los expulsados por parte de las autoridades dominicanas, y señala que a los expulsados no se les respeta el derecho al debido proceso, y que con con frecuencia son víctimas de abuso por parte de agentes gubernamentales. Estos hallazgos desafían muchas de las presuposiciones comunes referidas al perfil y tratamiento de esta población. Como contribución destinada a la erradicación de los causas de las expulsiones y los abusos hacia los migrantes, el estudio aporta recomendaciones sobre cómo mejorar el sistema de migración entre los dos países para reducir la vulnerabilidad de los haitianos en la República Dominicana frente a las violaciones de sus derechos humanos.

En Francais
La Clinique Internationale des Droits Humains a complété un rapport intitulé Invités Indésirables: Une étude sur les expulsions d’Haïtiens et Haïtiens d’origine dominicaine de la République Dominicaine vers Haïti . Il s’agit d’un travail interdisciplinaire basé sur une série de données démographiques et d’entrevues. Cette méthodologie est utilisée pour identifier les tendances générales de cette migration forcée et pour comprendre les expériences des Haïtiens et Dominicains d’origine haïtienne qui ont quitté la République Dominicaine pour arriver à Haïti entre les mois d’Août 1999 et de Juillet 2000.

Cette étude offre une analyse statistique des flux migratoires de par une évaluation démographique des populations vulnérables en question. Bien que les migrations forcées de Haïtiens vers la République Dominicaine ont été un sujet d’intérêt pour de nombreux rapports et procédures légales internationales, il existe tout de même très peu de données quantitatives à cet égard. Cette étude a rendue compte de certains facteurs clés concernant la structure des exodes migratoires, les caractéristiques de cette population ainsi que le traitement des expulsés de la part des autorités dominicaines. L’étude indique que ceux sortant du pays ne sont offerts aucun procès dû et se retrouve souvent à la merci d’autorités gouvernementales abusives. Sur ce, ces conclusions remettent en question de nombreux présupposés à l’égard du profil démographique de cette population ainsi que de son traitement. Afin d’adresser les abus et exodes antécédents, l’étude propose plusieurs recommandations dans l’espoir d’améliorer le système migratoire existant entre les deux pays et de réduire la privation des droits humains des Haïtiens de la République Dominicaine.

 

The 2004 Tsunami and Human Rights

Clinic students worked on a study released by UC Berkeley’s Human Rights Center “After the Tsunami: Human Rights of Vulnerable Populations.” The report is based on interviews conducted in March and April of 2005 with tsunami survivors, government officials, human rights activists, and aid workers in five tsunami-affected countries – India, Indonesia, Sri Lanka, the Maldives and Thailand. The study found that throughout countries affected by the tsunami, survivors continue to suffer inequities in aid distribution, human rights abuses, and the inability to have input into reconstruction planning and policy, and recommends concrete steps to address these issues. The clinic was invited to brief Eric P. Schwartz, United Nations Deputy Special Envoy for Tsunami Recovery, about the study’s findings to contribute to the work that former President Clinton’s office conducted on this issue. The UN has adopted Operational Guidelines on Human Rights and Natural Disasters which address the human rights concerns of persons affected by natural disasters.

 

Sri Lanka Access to HIV Medicines Project

Clinic students achieved a groundbreaking victory in the struggle to provide global access to HIV medicines. The Sri Lankan Ministry of Health announced it will start treating HIV infected individuals with anti-retroviral medicines. Clinic students produced a Memorandum Addressing the Need for a Treatment Agenda that sets forth a proposal to provide HIV medicines in Sri Lanka on behalf of the AIDS Coalition for Care, Education, and Support Services, a Sri Lankan non-governmental organization. The brief was submitted to the Sri Lankan Ministry of Health and the World Bank in the context of a pending funding proposal from Sri Lanka before the international financial institution. Students presented the project in June 2002 at the World AIDS Conference in Barcelona.

 

Mexico Labor Project

In partnership with the Center for Latin American Studies, the clinic initiated a project regarding globalization, labor, and human rights. The goal was to provide California unionists with an analytical framework to interpret environmental contamination and impoverished living conditions of Mexican workers within the context of the tri-state trade North American Free Trade Agreement. Students conducted an assessment and planning mission and facilitated a visit of rank and file members of the International Brotherhood of Machinists and Aerospace Workers to the San Diego-Tijuana border to witness firsthand the effects of NAFTA.