A Guide to Rights-Based Advocacy: International Human Rights Law and Fracking

fracking-guide-225x30012 June 2015: I recently co-wrote and edited a new guide for Mercy International Association: Global Action on how the international human rights framework can be used by civil society to initiate rights-based advocacy against human rights violations that result from the harm caused by hydraulic fracturing (fracking).

A Guide To Rights-Based Advocacy: International Human Rights Law and Fracking makes an important contribution to the nascent topic of fracking’s impact on human rights.

Since the 1990s fracking has been used extensively to access oil and natural gas in shale formations. Despite significant risks and concerns, investment in fracking has been expanding rapidly on a global scale.

However, while the fracking industry is booming, so are industry cash settlements and property buyouts for people who say fracking has ruined their water, lowered their house prices and destroyed their quality of life. From farm animals dropping dead overnight to low birth weights in human infants, fracking is becoming synonymous with harm.

Often overlooked is the fact that fracking can breach international human rights law in multiple ways. What can also be overlooked is that existing international human rights mechanisms are available to people on the ground in asserting their rights. The new guide helps to fill this gap in discourse and action.

The Guide outlines how International Human Rights Law can empower and reposition people and communities as rights-holders. It provides an extensive overview of accountability mechanisms to address threats or harms from fracking and can be used as a basis for action – from individuals affected by fracking in their community, to campaigning groups wishing to highlight global concerns.

The Guide is offered as a work in progress, inviting further contributions from around the world. It encourages more collaborative efforts on this vital subject, with the ultimate goal of empowering rights-holders, shaping policy and ensuring accountability.

What the guide contains

  • The 1st section of the Guide provides an overview of the process of fracking, its risks and potential impacts.
  • The 2nd section analyses seven thematic areas of human rights and how to determine if there may be a violation of State obligations as a result of fracking.
  • The 3rd section shows how to use the international human rights framework and its national monitoring mechanisms to highlight and prevent violations.
  • Finally, the 4th section of the Guide acknowledges other relevant areas of law and highlights the benefits of rights-based action in terms of exposing human rights.

How fracking impacts human rights

Human rights are universal, inalienable, interdependent, indivisible, equal and non-discriminatory, and apply to everyone. There are nine core international human rights treaties, which are legally binding instruments that set out specific rights and to which the vast majority of Member States of the United Nations (UN) are parties. These treaties make up the main human rights framework which codifies the various rights outlined below.

The impact of fracking on human rights are many and include violations to the right to health, water, food, housing, freedom of information and expression, the rights of children, and the cultural and collective rights of indigenous peoples, minority groups, and peasant communities.

The Right to Health: Commonly reported symptoms in people and farm animals living near fracking operations include skin rash or irritation, nausea and/or vomiting, abdominal pain, dizziness, eye irritation and throat irritation. Air pollution and water pollution risks from fracking include heavy exposure to carcinogens. A Cornell University study associated shale gas wells with reduced average birth weight among infants born to mothers living within a 2.5 km radius from a shale gas well.

The Right to Water: Fracking fluids injected underground include chemicals that are known or possible human carcinogens, and which can migrate into underground water supplies. Leaks and spills of drilling fluids also provide a route for contamination. Wastewater disposal wells have leaked into groundwater causing pollution and wastewater injection wells are linked to earthquakes. Fracking is a water intensive activity that poses a risk to many already over-utilized water resources.

The Right to Food: A Colorado State scientist called the state’s oil and gas boom “a death sentence for soil”. Dramatic negative effects on vegetation have been caused by the drilling and fracking of natural gas. There are cases of livestock deaths from drinking contaminated water, feathers falling off birds and chickens, skin irritation in dogs, and rashes after people swam in a local dam. Food-producing animals exposed to chemical contaminants may not be tested before slaughter and farms testing positive for air and/or water contamination still produce untested dairy and meat products.

The Right to Housing: Influxes of temporary workers push up rents and reduce available properties. Property damage and devaluation result from contaminated land and water wells, damage caused by earthquakes, and wastewater disposal and pollution. Forced displacement is caused by property damage or through coercion from private companies. Community impacts include interference with quality-of-life (e.g., noise, odors), overburdened transportation and health infrastructure, and disproportionate increases in social problems, particularly in small isolated rural communities.

The Right of Access to Information: The identity of chemicals injected underground can be hidden from the public, and lawsuits are often resolved through confidential legal settlements. This makes it difficult for individuals to assess their own circumstances and risk of harm, and for campaigners to objectively assess the industry and its impact. This denial of information itself leads to the violation of other rights: for example, the consuming of contaminated food products and doctors being unable to correctly diagnose illnesses.

The Right to Public Participation: Like access to information, public participation through public debate and dialogue is a right used to defend other rights that might be impacted by fracking. There have been cases of alleged violations of this right related to fracking such as violations of the right to protest.

Fracking and Other Rights: Given the close ties and interdependence between the Earth and the culture of many indigenous peoples, ethnic minorities, and peasant communities, fracking and its negative consequences can be in breach cultural rights. In December 2014, the Mithaka indigenous people of Australia lobbied the UN over fracking on their land saying “Our right to our culture is inseparable from the condition of our traditional lands. Unfortunately, by promoting petroleum exploitation on our traditional lands without adequately consulting us, the Queensland Government is failing to respect and protect our right to our culture”.

Taking action

The guide suggests action which can be taken by the individual or campaigning groups when faced with a violation such as those outlined above.

A key entity for enforcing the human rights framework is the UN Human Rights Council (HRC) which has several procedures and mechanisms that it uses to carry out its mission, including Universal Periodic Reviews (UPRs) for all UN Member States, and establishing Special Procedures including Special Rapporteurs by theme (such as the right to food) or country.

There are three key ways in which individuals can take action where a human rights violation is suspected as a result of fracking, for which contact details and weblinks are given in the main report:

  • Submit information to the special procedures such as Special Rapporteurs;
  • Contribute to the Universal Periodic Review process;
  • Submit information to a treaty body or request an inquiry.

Redressing the power imbalance

Given the manifold violations caused by fracking, a legally binding international treaty on business and human rights is desperately needed and can make an important contribution to the efforts for greater accountability of private actors.

Until then, however, the international human rights system provides strong norms and mechanisms to spur States toward improved policies and practices vis-a-vis corporate action within their jurisdiction: Individuals and communities are rights holders and can be powerful agents of change.

National litigation and administrative proceedings – example of which are given in the guide – can also have the impact of improving policy and precedent. These actions can also be strengthened by drawing upon international legal standards and norms.

Although there is no specific legal norm or instrument that addresses fracking, the Guide demonstrates numerous ways that the existing human rights framework can provide options for advocating for improved policies and intervening in particular cases.

The primary objective of engaging these procedures is to influence government policy and practice in favour of human rights protections. Beyond that there are numerous other benefits: evidence is recorded in the UN system and public arena, there is greater awareness of the issues, and there is increased democratic dialogue and participation.

This Guide seeks to assist in that process so that individuals and communities can exercise their rights and make governments accountable and, through them, corporations as well. A human rights-based approach will contribute to the existing diverse efforts by groups around the world working to protect people and planet from the harmful impacts of fracking.

Download the report from Mercy International.

Liberty & Humanity