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Protest at Cuadrilla's fracking site near Preston, Lancashire, September 2011. Photo: JustinWoolford via Flickr (CC BY-NC-SA).
Protest at Cuadrilla's fracking site near Preston, Lancashire, September 2011. Photo: JustinWoolford via Flickr (CC BY-NC-SA).
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Permanent Peoples' Tribunal puts fracking on trial

Dr Damien Short & Dr Tom Kerns

23rd July 2015

The damage caused by fracking to people, communities and the wider environment will be put under the legal spotlight in public hearings in the US and the UK, write Damien Short & Tom Kerns. While the 'ruling' that emerges will be non-binding, it will provide an authoritative, expert dossier of fact and argument for real legal actions to follow.

The PPT session on fracking aims to produce a highly influential, legally literate and serious judgment of the issues by some of the world's finest legal minds as a trail blazing example for future legal actions.

A coalition of human rights lawyers and academics has today been granted an opportunity to put fracking on trial at hearings to be held by the Permanent Peoples' Tribunal (PPT) in the UK and the US.

The PPT is an international opinion tribunal, independent of state authority. Its activities include identifying and publicising cases of systematic violation of fundamental rights, especially where national and international legislation fails to defend the right of the people.

It issues authoritative 'rulings' of a legal but non-binding nature against those responsible for violations of these rights. Past high-profile 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 gold mine in West Papua
  • those affected by the Monsanto corporation;
  • the victims of industrial hazards such as occurred in Bhopal, India, where 15,000 local residents were killed by toxic gas that leaked from the Union Carbide Corporation factory in 1984.


With the latter case, the PPT sessions helped improve the medical facilities for the victims - an obligation undertaken by Union Carbide as part of the controversial settlement with the Government of India.

They also served as a source of embarrassment to both parties about the enduring inadequacy of Union Carbide's response; and it led to the adoption of the Charter on Industrial Hazards and Human Rights.

The PPT's decision to hold a session on hydraulic fracturing and other unconventional fossil fuel extraction processes follows an application was made by 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).

Why a PPT on fracking?

The extreme energy process of fracking has taken place around the world in spite of powerful public opposition and with large numbers of citizens claiming that their human rights have been completely disregarded by the corporations involved and by the public officials who are meant to protect and represent the public.

The PPT on fracking will examine such allegations in an 'even handed and judicial way' and will consider the indictment of nation states, rather than the industry itself, because it is these states, and not the fracking companies, who bear a direct legal responsibility to human rights law.

The human rights dimensions of the full range of oft cited impacts will be examined: the health of human and non-human animals, environmental, climatic, seismic, hydrologic and economic impacts - as well as those on local physical and social infrastructures.

Testimony is invited from witnesses all over the world - some of whom may also wish to hold preliminary mini-tribunals in their own countries. Evidence and findings from those early tribunals can then be submitted to the later plenary hearings in the US and UK which, in turn, will play an important role in laying down an informal but highly expert precedent, with potential for future use in national and international courts of law.

At the hearings, between five and seven jurists of high standing in international human rights law will judge whether sufficient evidence exists to indict certain States on charges of "failing to adequately uphold universal human rights as a result of allowing unconventional oil and gas extraction in their jurisdictions."

Submitted evidence for these hearings will include personal witness narratives, expert testimony on the practices and impacts of fracking, findings from preliminary hearings in other countries, peer reviewed research, reports from preparatory academic round tables, Human Rights Impact Assessments and other forms of evidence.

Anna Grear, Director of GNHRE in London, explains, "the PPT will play a vital role in presenting and rehearsing testimony, arguments and law to lay down an informal but expert precedent, with potential for future use in national and international courts of law.

"It aims to produce a highly influential, legally literate and serious judgment of the issues by some of the world's finest legal minds as a trail blazing example for future legal actions.

And she stresses the open and democratic nature of its proceedings: "This really is a Peoples' tribunal. It belongs to communities and individuals from all over the world. It will also educate a wide range of parties and the general public about the human rights dimensions of fracking."

Justice is for everyone (who can pay for it)

In sociological terms the law is seen as a social construction in which power, money and political privilege play a significant role in the creation of law, in its application, and in access to justice. Even in democracies, as Sir James Mathew once said, "justice is open to all, like the Ritz Hotel."

Worse still, in today's increasingly neoliberal world, powerful transnational corporations are now frequently involved in laws' creation, and indeed its manipulation, such that the vast majority of the social and environmental harms they produce are either technically 'legal' or weakly regulated.

Partly in response to this, new initiatives for the 'doing of law' have emerged, including the PPT, which seek to provide an alternative to the dominant law of the powerful.

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 Tribunals (1966-67) - originally an activist initiative to indict the US Government for the war in Vietnam, and on the dictatorships in Latin America (1974-1976).

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, be they geopolitical or because the revolving door between 'business' and political representation is now more like an open corridor.

We cannot tolerate the 'crime of silence' about injustice

Complaints heard by PPTs are submitted by those who have suffered harms, or by groups or individuals representing them. PPTs call together all parties concerned and offer the defendants the possibility to make their own arguments heard.

The panel of judges is selected for each case by combining members who belong to a permanent list and individuals who are recognized for their competence and integrity. PPTs have emerged as enduring sites for the systematic documenting of harms and alternative judgements of wrongs.

Jayan Nayar, who developed the Basso Foundation's Peoples' Law Programme, has argued that PPTs refuse to accept the power of law to negate the suffering of peoples by normalizing violence, naming it a 'misfortune'.

The struggle is against the "crime of silence" as Bertrand Russell put it, which enables the powerful to silence the voices of pain through the processes of politics and law - in the courts, in the legislative bodies of state, in international negotiations, in the media and in education.

Thus PPTs give priority to marginalized voices, and no cause of peoples' struggle is outside PPT jurisdiction. From June 1979 to the present date the PPT has held some 40 sessions whose results and judgements are available here.

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 judgement, (but) rather, it serves as a legitimating forum. Its judgements 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."

 


 

More information: see tribunalonfracking.org where there are details of how to submit testimony, organise smaller national pre-PPT initiatives and help with the crowd funding of costs. Hearings are scheduled for March 2017 in the United States and in the United Kingdom.

Dr Damien Short is director of the Human Rights Consortium at the School of Advanced Study, University of London.

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