Last month a group of human rights lawyers and academics announced they were going to put fracking on trial, to see if it breaks international human rights laws.
The Permanent Peoples’ Tribunal (PPT) will take place during March 2017, with one week of hearings in the US and one week in the UK. The panel of eleven judges will then consider the evidence over several months before issuing their findings.
The actions and policies of nation states, not companies, will be addressed in the tribunal, because states are the primary duty bearers of human rights under international law. It will attempt to consider the whole range of fracking's potential impacts: human and animal health, environmental, climatic, seismic, hydrologic and economic impacts, as well as its impact on local physical and social infrastructures.
Dr Tom Kerns is director of the Environment and Human Rights Advisory in Oregon USA, and is one of the academics behind the tribunal. He says that the tribunal is not anti-fracking, but aims to ensure that “human rights become part of the global conversation about fracking”.
“Our goal is to organise a PPT session that will directly address questions about the human rights dimensions of hydraulic fracturing,” he says. “We want to ensure that short term priorities are not allowed to outweigh longer term human rights considerations,” he says.
The tribunal has its roots in this study, which is written by the same group of human rights experts.
However, critics label the tribunal sensationalist and question the validity of putting the “concept” of fracking on trial globally. Kearns says: “Some people could probably see almost any trial as 'sensationalist', depending on their perspective and prejudices.”
“This one could be seen that way only if other international human rights trials are also considered sensationalist."
“A trial in law is business as usual, not sensational at all, not so different from the modelling and testing that engineers do before implementing a concept. Law is no different in its approach, except in the methods employed.”
The tribunal
The PPT, which is based in Rome, applies international human rights laws to the cases put before it.
It has adjudicated on 40 cases in the last 36 years, notably the Bhopal chemical disaster of 1992 in India, after which the Charter on Industrial Hazards and Human Rights was adopted. It has attracted criticism in the past, that with some calling it a “kangaroo-court”. Admittedly this comes from politicians in small nation states, on the receiving end of judgements from the tribunal.
The fracking tribunal will be funded by donations from “communities and individuals all over the world”. Most of the participants, including the judges, lawyers, and expert witnesses will provide their time free of charge.
The judges will be a mix of international human rights lawyers and “internationally recognised representatives of civil society,” selected by the PPT organisation, not the organisers, says Kearns.
Like any other trial, the judges will hear prosecution and defence arguments and weigh up the evidence. They will then decide if there is sufficient evidence to indict countries on charges of failing to respect the human rights of their citizens by permitting hydraulic fracturing.
Evidence
The evidence will include personal witness narratives, expert testimony on the practices and impacts of fracking, peer reviewed research, and reports from preparatory academic round tables, citizen groups.
Technical information will form a major part of the evidence. Kearns anticipates it will be supplied voluntarily by agencies, industry and NGOs. Peer reviewed scientific studies will also be considered.
Both sides of the arguments about fracking will provide evidence, Kearns says, as it would in any court proceeding. “The organisers of the tribunal will not be responsible for the quality of technical evidence presented by the prosecution or defence.
“The judges will listen to the arguments, evaluate the materials placed before them and arrive at decisions about the validity and weight to be accorded to it.”
Dr Damien Short, director of the HRC at the University of London, says the PPT will be hugely significant. “It will make important decisions on a key international issue, the uncontrolled spread of unconventional resource extraction.”
“Fracking has taken place around the world in spite of serious public opposition and with large numbers of people alleging that their human rights have been ignored by those who supposedly represent them. This PPT aims to consider those allegations in an even handed and judicial way.”
It's unlikely that the PPT will put the brakes on certain location's enthusiasm for fracking, or indeed that its judgements may be irrelevant for most of the world by the time they are published. But, like other PPT cases before it, at the very least it will provide evidence and legally literate evidence for future legal actions.
The PPT will be inviting witness testimony from citizens all over the world who may wish to hold preliminary mini-tribunals in their own country. Evidence and findings from those early tribunals can then be submitted to the later plenary hearings in the US and UK. More information on how to submit testimony, and help with crowd funding of costs can be found here.