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Spotlight on Earth Rights Defenders in Thailand

I am so lucky to have had opportunities to meet inspiring people who have dedicated their lives to public interest.  These people believe strongly in the capacities of the weak, and they work to protect earth rights. One of the most inspiring people is my senior colleague, Ms. Supaporn Malailoy or P’Noo.

P’Noo was one of the establishers of EnLAWTHAI foundation.  EnLAWTHAI was founded in 2001 with a mission to monitor and enhance positive environmental law as well as to strengthen industrial affected communities through providing legal training, promoting environmental campaigns, and being a representative in environmental lawsuits. As a general manager, P’Noo is still a key figure in the foundation.

P’Noo has given me invaluable inspiration and ambition.  I collaborated with her as a junior lawyer at the organization for three years. Even though she did not graduate from law school, she has tried her best to learn complicated legal issues through her work experiences. For me, P’Noo is a strong woman who sacrifices her life for communities all day and night. She never turns her phone off because she is worried that villagers might face some urgent situations and need her help. Her schedule is always full of meetings with local communities and networks. She told me that she always feels uncomfortable denying villagers’ requirements because when they ask her, they are in severe trouble, and hope that she can solve their problems.

P’Noo strongly believes that local people (almost all are farmers) play an essential role in protecting the environment. She does not want to block all development, but she thinks that local people know their area best.  Thus, they must have the right to decide how it is developed.

Even though I left the foundation a year ago, P’Noo’s devotion and determination still inspire me to . . .

Introducing our new storytelling series, “Faces of Change”

Storytelling is the thread that weaves us all together, the activity that makes humans uniquely human. Stories bridge linguistic and cultural boundaries. They entertain, they educate, and they shape and preserve our cultures and morals. Stories record the most important lessons from our history and illuminate the most promising visions for our future.

In recent years, human rights storytelling and digital storytelling have become an increasingly important pathway to justice. For both survivors and perpetrators of human rights abuses, speaking one’s own truth can transform pain and suffering into dignity and hope. For the audience, these stories can be a window into understanding the most difficult of human experiences, and through that window they can discover compassion, courage, and understanding.

Our new human rights storytelling initiative, Faces of Change, provides a platform for our students, alumni, staff, partners, and other members of the ERI family to share their personal stories.

Our goal in this series is to amplify stories that are usually silenced, to provide a space for them to be told, heard, and shared, and to generate meaningful and long-lasting dialogue and change. These stories will be documented through participatory practices and in depth collaboration between our staff and the communities we serve, and will be told through a variety of mixed media including film, animation, photography, audio, and prose.

In the inaugural posting in our Faces of Change series, we hear from Khun Yo Thar, one of the 2014 students at the EarthRights School Myanmar.  Before working in human rights, Khun Yo Thar was a soldier in the Karenni Army; his story reveals his journey from a small orphanage to a life as an emerging civil society advocate. 

Khun Yo Thar tells us: “To change the situation, it is important to improve your situation first. Then you try to . . .

Spotlight on Earth Rights Defenders in Vietnam

There are many earth rights defenders in Vietnam who support others in the face of human rights violations and environmental issues. Some of them work in government agencies and some work in non-governmental organizations (NGOs). However, high-level government officials do not care about their responsibility to protect their people from harm.  The people working in NGOs make the greatest impact.

My director, Ms. Lam Thi Thu Suu, has a genuine enthusiasm for earth rights.  Ms. Suu made me recognize that human rights and environmental protection are important to social development.

When I graduated from university in 2011 I did not care much about human rights and environmental issues.  The first time I met Ms. Suu was when she accepted me as a volunteer in her organization. At the time, it was just a job. Four months later, I found that I really liked my work. Ms. Suu lit a fire under me through her boundless enthusiasm on human rights and environmental protection. She goes to the communities and talks to the women for hours on women’s rights, even when she is tired. After she goes to the communities, she continues to work with stakeholders at home and with foreign countries to call for support for the communities. Sometimes she does not have time for her husband or her two children.

Ms. Suu’s effort has been recognized by many people and organizations. Now, many people support the communities where she works.

I will do my best to help the communities get their rights. I will also get more knowledge about the environment to protect my community and environment from the impacts of development. Although there are many difficulties to achieving great success, if I make a sustained effort, I will succeed. . . .

Court sides with Chiquita, Delays Justice for Victims of Paramilitary Violence in Colombia

If the top executives of a U.S. company, sitting in a Board room in Ohio, approve and hide illegal payments to a terrorist organization, does it concern the United States? 

What if that company pleads guilty to the Department of Justice for the crime of paying the terrorist organization and then pulls out of the foreign country where the terrorists operate?  And if Congress says that foreigners can come into U.S. courts to seek justice for violations of international law, can that law encompass torture, war crimes and crimes against humanity committed by those same terrorists, if the abuses were committed abroad?

According to two appellate judges in Florida, no, no, and no.

The case in question is In re Chiquita Brands International, Inc., in which the family members of victims of Colombian right-wing paramilitary death squads are suing the banana company for paying and giving logistical support to the murderers. A paramilitary group called the United Self-Defense Forces of Colombia, or AUC (Autodefensas Unidas de Colombia) in Spanish, used Chiquita’s support to spread terror in the banana-growing region of Urabá, where it killed thousands of villagers, labor leaders, and community organizers, who were suspected of favoring leftist guerrillas or making trouble for the plantation owners.  Chiquita made a deal with the AUC: a 3-cent payment for each box of bananas shipped from the area.  These payments to the AUC were illegal under U.S. law, and Chiquita pled guilty and paid a fine to the Department of Justice in 2007.

The law at issue in yesterday’s decision is the Alien Tort Statute (ATS).  The ATS is an 18th-century law that opens U.S. federal courts to the claims of foreigners who have been harmed by violations of “the law of nations” – a category of international law . . .

Proposed Administrative Reforms in Peru Threaten to Undermine Already-Weak Environmental Protections

For the past few weeks, a few of us at EarthRights International’s Peru office have been spending hours researching, studying, and analyzing the international law requirements for sustainable development and environmental protection. Specifically, our focus has been on the international requirements for conducting, reviewing, and approving environmental impact assessments (EIAs). Our goal has been to produce an amicus brief challenging the way in which the EIA for Yanacocha’s Conga gold mine project was approved, to support a legal challenge to the project currently pending before the Constitutional Tribunal of Peru.        

The results of our research have been clear: international law requires that in order to protect the environment from irreversible harm that will hurt future generations, the review and approval of EIAs should be conducted by a government authority with sufficient independence to ensure that legitimate concerns for environmental protection are not ignored in favor of purely short-term economic considerations.

This level of independent scrutiny was completely lacking with the EIA for the Conga project. The Conga EIA was approved by the Ministry for Energy and Mines—the same government agency promoting the project—despite serious criticism by independent experts, including those at the Ministry of the Environment.

Outcry over this process with respect to Conga led to the creation of a separate government entity under the Ministry of the Environment called SENACE (which stands for Servicio Nacional de Certificación Ambiental para las Inversiones Sostenibles or National Service for Environmental Certification for Sustainable Investments) to review EIAs in the future. The changes are to be progressively rolled out throughout 2014, and Peru would ostensibly join the rest of the region in adopting a system in compliance with international law obligations. That is at least what we thought until last week.

On June 11, President . . .

EarthRights School Mekong Students Start Year with Forum Theatre Workshop

EarthRights School Mekong alumni Mueda Nawanat listens as others reflect on an exercise during the Forum Theatre workshop

The start of the rainy season in Chiang Mai, Thailand, also marked the beginning of the year for EarthRights School Mekong’s class of 2014.  On a stormy evening of the first Friday in June, I arrived to the welcoming party.  The sounds of the storm let up just in time for the performances to begin.  EarthRights International staff, alumni, and friends gathered to watch song and dance performed by the new students as well as students of nearby NEED-Burma organization.  

ERI’s Mekong Alumni Coordinator Tom Kaewpradit officially welcomed the students into the EarthRights International family, acknowledging that they are the ninth class of the EarthRights School Mekong.  As nine is the lucky number in Thai culture, he assured us all this class would bring great luck not only to the school but back to their countries as well.

The students are a charismatic crew.  An outsider at the welcoming party would never guess the students met less than a week prior, as their jovial interactions with one another are like those of life-long friends.  They come together all the countries that border the Mekong River, including China, Laos, Myanmar, Thailand, Cambodia, and Vietnam. The bonds they create with each other over the next seven months will strengthen relationships between their communities throughout the region for decades to come.

ERI Mekong Alumni Coordinator Tom Kaewpradit catches EarthRights School Mekong alumni Saw Lay Ka Paw in one of several trust falls ERI Mekong Alumni Coordinator Tom Kaewpradit catches EarthRights School Mekong alumni Saw Lay Ka Paw in one of several trust falls

As the students reflected . . .

Hobby Lobby decision makes it more difficult to regulate corporate behavior and protect actual human beings

In a sharply divided decision, the Supreme Court added religious rights to the ever-expanding list of rights possessed by for-profit corporations. In an opinion authored by Justice Alito, the conservative wing of the Court concluded in Burwell v. Hobby Lobby, that certain for-profit corporations cannot be required to provide contraception coverage under the Affordable Care Act (ACA) where doing so is against the religious beliefs of their owners. In a scathing dissent, Justice Ginsberg described the majority opinion as one of “startling breadth,” which would allow commercial enterprises to opt out of laws they deem incompatible with their religious beliefs.

So now in addition to having the right to free speech absent a mouth to speak, many corporations now have religious rights absent a soul.  

According to the majority opinion, the purpose of extending constitutional and statutory rights to corporations is to protect the rights of living, breathing people.  Protecting the free-exercise rights of corporations “thus protects the religious liberty of the humans who own and control them.” Yet, incorporation serves to create an entity that has legal rights and responsibilities separate from the individual owners. This separation allows individuals to escape personal responsibility for the entity’s actions and obligations—so long as the owners and the corporation are actually separate.  

In the Hobby Lobby case, however, the Court ascribed the religious beliefs of the owners to the corporation itself.  This, Justice Ginsberg rightly noted, might lead one to wonder, “why the separation [of owner and corporation] should hold only when it serves the interest of those who control the corporation.”

Going forward, the Court’s holding – and particularly its view of “corporate personhood” – will undoubtedly be used by corporations to challenge a whole range of generally applicable laws on religious and perhaps other grounds. Although the Court . . .

Federal Appeals Court Revives Abu Ghraib Torture Case Against CACI

Last week, the Fourth Circuit Court of Appeals issued a landmark decision in Al-Shimari v CACI et al., reviving the case against the U.S. private contractor company accused of torturing Iraqi detainees at Abu Ghraib prison. The decision is precedent setting in a number of ways, but for EarthRights International’s (ERI’s) cases, the most significant aspect is the Fourth Circuit’s interpretation of Kiobel v Royal Dutch Petroleum (Shell) and what it means for future Alien Tort Statute (ATS) claims. In holding that the Iraqi plaintiffs’ ATS claims were not barred by the Supreme Court’s decision in Kiobel, the Fourth Circuit recognized the significant U.S. interest in preventing the U.S. from becoming a “safe harbor” for torturers and other “common enem[ies] of mankind” and ensuring that U.S. citizens – corporations and individuals alike – are held to account for violations of international law.

To recap, in its April 2013 Kiobel decision, the Supreme Court ruled that the ATS is presumed not to apply in cases where conduct occurred outside the U.S. unless the claims “touch and concern” the United States with sufficient force.  Since Kiobel, we’ve seen some courts treat the decision as a categorical bar against all ATS claims based on conduct that occurred abroad, regardless of whether there were other connections to the U.S. – such as where the defendant is a U.S. citizen. As I’ve previously explained, that’s what the district court did in dismissing the Al-Shimari case. 

On appeal, however, the Fourth Circuit expressly rejected the district court’s interpretation of Kiobel, holding that cases where conduct occurred abroad are not categorically barred. Only Justices Alito and Thomas, writing separately to concur in the Kiobel decision, had embraced a standard that would allow ATS claims to proceed only where the . . .

Shell May Have to Compensate Villagers for Oil Damage from Sabotage or Theft

The Niger Delta region of Nigeria is crisscrossed by thousands of miles of pipelines that leak oil with tragic frequency, contaminating waterways, destroying wildlife, and harming the health of local communities.  But the sprawling network that makes the companies so much money is also a target for sabotage and bunkering, a widespread practice in which people illegally tap into pipelines to siphon off some of the oil for themselves.  When oil leaks and causes environmental harm as a result of bunkering, does the oil company have to pay?

Last week, a British judge gave an intriguing answer: usually no, but sometimes yes.

The issue is particularly important for Shell, the international oil giant that dominates Nigeria’s petroleum industry.  Almost every time a Shell pipeline leaks, Shell blames sabotage and bunkering and insists that it has no responsibility because criminals caused the rupture.  (According to Amnesty International, a higher percentage of Shell’s leaks may be due to the poor state of repair of its pipelines than the company admits, but that the company is able to fudge its numbers because it dominates the process of investigating and reporting on its own oil spills.) 

Advocates for Niger Delta communities, on the other hand, insist that bunkering is a predictable consequence of doing business in the way that Shell does.  Shell installed pipelines for its own benefit, knowing they’d be an irresistible temptation for theft.  If Shell can’t prevent sabotage or bunkering in the first place, then it should compensate impoverished, contaminated communities when thieves cause oil spills, rather than leaving the victims with no recourse.

In Bodo Community v. Shell Petroleum Development Company of Nigeria Limited, a Nigerian community is suing Shell in the British courts over the damages caused by two massive oil spills.  Shell has already admitted . . .

Should business corporations have constitutional rights?

Sometime in the next week, the U.S. Supreme Court will decide Sebelius v. Hobby Lobby Stores, in which one of the key issues is whether a corporation such as Hobby Lobby can object to federal healthcare legislation on the grounds that mandating employee contraception coverage violates the corporation's right to religious expression.

I don't pretend to know how the Supreme Court will decide this case, but, like Citizens United before it, this one raises some fundamental questions about corporate rights, with far-reaching implications for ERI’s work in protecting communities around the world - should business corporations have any constitutional rights at all?

It's not a crazy question, when you examine the history of corporations and the fact that even within the context of corporations, most constitutional rights are exercised by people, not the "corporation."

History

Since so many of our Supreme Court justices are obsessed with original intent, let's tackle history first.

At the time of the framing of the Constitution, there were a few kinds of corporations that were recognized. The "corporation sole" was typically used for religious officeholders, to pass down church property from (for example) one bishop to his or her successor. Most other corporations were chartered by a governmental act, and were predominantly religious and educational institutions. Harvard College, for example, was chartered by the governor of the Massachusetts Bay colony in 1650 (and this charter continues to govern the university's status). Cities were deemed municipal corporations. And there were a few business corporations granted charters, such as the East India Company.

The idea of a general incorporation law - in which anyone could register a corporation without a governmental act - was pioneered by New York in 1784, but only in the context of religious institutions. It was not until 1795 that any state (in this case, North . . .

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