New ERI guide on how U.S. courts can provide assistance against corporate human rights abuses

While the post-Kiobel world has seen several disappointing decisions for victims seeking justice for corporate complicity in human rights abuses, there are still bright spots in the U.S. courts. EarthRights International (ERI) has developed a strategy to use the U.S. Foreign Legal Assistance (FLA) statute, 28 U.S.C. § 1782, to assist public interest lawyers in other countries in obtaining information which may be useful for their proceedings against a corporation. Under this statute, “interested parties” to an action in a foreign domestic proceeding can ask a federal court to obtain documents and testimony from people or companies located in the U.S. who may have relevant information.

ERI has filed three FLA actions so far. The first was to obtain information from Chevron, for a case in Nigeria involving the negative impacts of gas flaring. There, the parties reached a settlement. Interestingly, the FLA was actually a tactic originally used by Chevron itself. This may be the first case where a public interest group has used a FLA request to assist communities in obtaining information from a U.S. multinational corporation.

The second action was to obtain documents and testimony for an action in Tanzania against a high-end safari company for land grabbing and violence. There, the company came to an agreement with the plaintiffs after the court ordered the discovery. The last action was to get documents and testimony from a U.S. mining company for in an action in Peru involving violence against protestors committed by the mining company’s hired security. This action is still pending in court.

Taking advantage of this statute embraces ERI’s model of collaborative litigation, where we assist strategically while the ownership . . .

In Defense of Human Rights Clinics. (Seriously.)

University of Chicago law professor Eric Posner used to be a serious international law scholar. He submitted a declaration to support Chiquita's defense against our lawsuit on behalf of victims of death squads in Colombia, stating that he was an expert in international law and human rights law, and telling the court that Chiquita's material support for terrorism did not violate international law; he submitted similar declarations regarding crimes against humanity and extrajudicial killings in at least two other lawsuits.

But Posner's latest screed - an attack on university human rights programs, and in particular law school human rights clinics, in the Chronicle of Higher Education - is utterly unserious. It is the kind of trolling one would expert from a casual blogger, not a scholar, designed to create controversy (and promote Posner's new book) rather than make compelling arguments.

On the off-chance that anyone does think this is a critique worth listening to, however, I thought I would give a brief response.

Posner's critique is rooted in his belief that human rights law, indeed international law in general, is incoherent and useless. Thus he believes that any effort to give students experience in the practice of human rights law is simply political advocacy, because human rights law can be used for any political purpose.

There are a few problems with this argument.

Law schools are supposed to prepare students to practice law. Whether Posner likes it or not, human rights law is a real and vibrant field of practice, and law schools should be credited for giving students the chance to explore this field and develop the skills necessary to practice. I have been practicing human rights law and supervising young lawyers for the past nine years, and I can say that these lawyers' experience in human . . .

The Victims of a Mega Development Project

On a cool day during the rainy season, I visited a village that had recently been relocated due to a large-scale development project.  On my walk around the village, I met one of the relocated villagers. He is 54 years old and has a big family. Prior to being relocated, he was a carpenter and planted vegetables on his land. Now, he does not have a stable job so he struggles to earn an income. He is depressed. As we spoke, I saw how upset he was as he told me his experience and the contrast between his original village and the relocation site.

“We were living happily with a regular income and doing agricultural work in the original village. Now, where is my land for planting? What will we do? As you can see, dirty water is also flooding under my house so our family breathes this terrible smell every day." 

With tears in his eyes, he said that his wife had passed away 15 days after their relocation. As a consequence of his terrible living situation in the new village, his son, who had been in Grade 11, dropped out of school to take up work in a factory. I felt sorry to see and to hear about their suffering.

Myanmar is a developing country that is undergoing political, economic and social changes. One such change is the ever-increasing number of development projects. Our country is always inviting local investment as well as foreign direct investment into the country as it seeks to benefit from a globalized world. All too often, these projects result in widespread land confiscation and other negative consequences for local communities. The topic I chose to research for my fieldwork with the EarthRights School Myanmar is one of these big development projects in . . .

Indigenous Futures Submerged by Dams

A woman fishing in the Mekong River, Cambodia

In two looming hydropower dam projects in Cambodia, indigenous communities await their fate. They face forced evictions and loss of the lands, rivers, forests, soil, fish and plants with which their lives and identities are intertwined. Construction of the Lower Sesan 2 Dam in Stung Treng and the Cheay Areng Dam in Koh Kong spells likely disaster for these resources and the communities who depend on them. 

The communities in Cambodia are not alone. Indigenous peoples and their cultures are threatened around the world. Over 370 million indigenous people in more than 90 countries make up 5% of the global population. Indigenous peoples routinely experience discrimination and systemic exclusion from political and economic processes. They face forcible displacement from ancestral homelands and deprivation of wealth and resources. Indigenous traditions and knowledge systems are being lost: for example, estimates predict the extinction of 90% of global languages (of which indigenous languages make up two thirds) by 2100.

In Asia, home to two thirds of the world’s indigenous peoples, indigenous livelihoods remain closely linked with customary ownership and management of land, forest and water resources. But rampant economic development imperils these systems as lands are expropriated for state-sponsored and corporate projects.

  “If we lose access to these natural resources, we will lose our culture and traditions” 

Young men puling in fish traps in the Mekong River, Cambodia.Young men puling in fish traps in the Mekong River, Cambodia.

In Stung Treng Province in northern Cambodia, 5000 people are slated for resettlement to make way for the Lower Sesan 2 Dam (LS2), many of them members of indigenous and minority ethnic groups, including the Phnong, . . .

Remember Ken Saro-Wiwa and the Ogoni Nine

Ken Saro-Wiwa

On November 10, 1995, internationally renowned author and human rights and environmental activist Ken Saro-Wiwa and eight other Ogoni men were hanged in Port Harcourt, Nigeria. Arrested and held for months without charges, tortured while under detention, and sentenced to death by a “Special Tribunal” convened in violation of international law.  They were executed for their peaceful efforts to defend the indigenous Ogoni people of Nigeria from human rights and environment abuses caused by oil extraction activities of Shell Nigeria. For his relentless commitment, Ken Saro-Wiwa was awarded the 1995 Goldman Environmental Prize.

To this day, despite facts that tie Shell to his murder and to the continuing abuse of the Ogoni people, Shell still denies culpability and continues to drill for oil in Nigeria.

EarthRights International stands in solidarity with activists and environmental defenders around the world in commemorating Ken Saro Wiwa on this date.

Inter-American Commission Hearing Highlights Peru's Shortcomings in Indigenous Rights Protection

Rosa Sara Huamán Rinsa, the leader of Pueblo San Juan de Kañaris.

Recently, the Inter-American Commission on Human Rights held its 153rd regular session, during which it hosted 53 thematic hearings on a wide range of regional human rights issues. On Friday, October 31, a delegation of indigenous leaders and human rights defenders from Peru came face-to-face with Peruvian state representatives to discuss the rights of indigenous peoples in Peru to property and legal recognition. Beautifully dressed in traditional garb, the petitioners delivered a compelling account of the Peruvian state’s chronic failure to safeguard indigenous peoples against extractive industries’ encroachment on and degradation of ancestral lands.

Raquel Yrigoyen Fajardo, a Peruvian lawyer at the Instituto Internacional de Derecho y Sociedad (IIDS), began the petitioners’ presentation by providing a history of the Peruvian state’s constantly evolving conceptualization of indigeneity and the legal implications that flow from it. According to Yrigoyen, since the days of conquest and colonization and for some time thereafter, Peru uniformly classified all native populations as indigenous (or, during colonial times, as “savages” and “infidels”), regardless of their geographic origins. During the first half of the 20th century, Peru took a major step forward in the protection of human rights when it officially recognized indigenous peoples’ legal personhood and collective property rights. The 1933 Constitution went as far as to provide that the state shall allocate land, even via expropriation, to indigenous communities whose territories were too small to meet the needs of their populations.     

This movement towards a progressive indigenous rights regime, however, was short-lived. In the 1960s and ‘70s, national-level agrarian reform resulted in the Peruvian state reclassifying Andean indigenous groups as “campesinos.” In turn, “indigenous” was redefined to apply solely to lowland, Amazon-based populations, which the state refers to as “nativos.” While “campesinos” usually refers to farmers, the term can carry a negative connotation, . . .

Communities in Charge of their own Justice

EarthRights International (ERI) recently held an interactive workshop in collaboration with The Centre for Research on Multinational Corporations (SOMO), which was hosted by the Columbia University Human Rights Institute and Clinic. The purpose of the event was to discuss ERI’s new model for a community-driven operational level grievance mechanism with expert practitioners, academics, civil society, and businesses to gain input on issues that have come up in the first stage of development. The broad spectrum of expertise at the table from these various areas helped bring out substantive discussions, and many useful perspectives.

Operational-level grievance mechanisms (OGMs) are systems that companies set up to handle complaints from workers, community members, and other stakeholders. Existing OGMs are typically designed and implemented by the company - the party that is the target of the complaint – a model that we believe has inherent conflicts of interest and sidelines the affected communities. ERI’s model emphasizes that communities are the parties most affected by the company’s projects, and are best positioned to determine what harms exist or can be foreseen, and what remedies are appropriate to vindicate their rights. A mechanism designed and implemented by communities would be more legitimate, and would provide a more effective and rights-based remedy.

At the workshop, we held a number of discussion sessions, focusing on a range of issues. We covered strategic and theoretical issues such as leverage strategies that could be used by affected communities, when and how companies should become involved with the grievance process, how to utilize the role of NGOs effectively without overstepping the role of the community, and how to work using the communities’ traditional concepts of justice while still protecting internationally-recognized human rights norms. And we delved into practical and logistical issues such as funding, the scope of a . . .

"Our Voices Will Be Heard" – A Complaint to the Malaysian Human Rights Commission against the Developer of Don Sahong Dam

Community members join NGOs in filing a complaint against Mega First with the Malaysian Human Rights Commission.

“My name is Sem Vorn. I come from Koh Dambang village in Kratie province in Cambodia. I am indigenous Kuy and I am here today to express my deep concerns about the impacts of the Don Sahong dam on our fish and livelihoods.”

With this statement, Mrs. Sem Vorn, one of the Cambodian community members who travelled to Kuala Lumpur this week together with her Thai counterparts, appealed to the Malaysian Human Rights Commission (SUHAKAM) to accept the complaint against Mega First Corporation Berhad, a Malaysian developer of the Don Sahong dam, being built in Laos, less than two kilometres form the Cambodian border.

Community members join NGOs in filing a complaint against Mega First with the Malaysian Human Rights Commission Community members join NGOs in filing a complaint against Mega First with the Malaysian Human Rights Commission

If built, this dam, which will be 32 m high with an installed capacity of no more than 260 MW, will entirely block the Hou Sahong channel, which is the main channel that allows for year-round downstream and upstream fish migrations. This is very likely to cause irreversible harm to downstream and upstream fisheries, seriously affecting the lives, livelihoods and health of millions of people in Laos, Cambodia, Thailand and Vietnam. The planned dam will also be located in a biodiversity hot spot, known for its iconic, but critically endangered, Irrawaddy dolphin population.

Yet the affected communities in Cambodia and Thailand received little or no information about the project and its impacts and were not provided with a meaningful opportunity by Mega First to have their voices heard . . .

“Who will take responsibility?”: Communities Testify about Dawei SEZ at Thai Human Rights Commission

This week, communities affected by the Dawei Special Economic Zone (SEZ) testified at a public hearing at the National Human Rights Commission of Thailand (NHRCT) about the human rights and environmental impacts of the project. At the hearing, Dawei Development Association (DDA), a local civil society network, and community representatives presented a new report, entitled “Voices From the Ground: Concerns Over the Dawei Special Economic Zone and Related Projects”. Previously, in March 2013, the DDA and the affected communities submitted a complaint to the NHRCT, shortly after which one of the commissioners visited the Dawei SEZ to bear witness to the claims.

The report found that 36 villages with as many as 43,000 residents would be directly affected by the Dawei SEZ and related projects, the majority of whom rely on land-based livelihoods, including agriculture, raising livestock and fishing. Seventy-one percent of the households surveyed randomly for the report said they expect to lose all or at least some of their land due to the project. Many have already lost their property due to land confiscation. Other land has been rendered unusable by landslides or water blockages due to SEZ construction. Only 15% of households surveyed received any compensation for their lost land, crops and homes. Furthermore, the compensation process is deeply flawed: it lacks clarity about how the compensations are calculated as well as the equity and accuracy of these calculations.

The report also documents how the affected communities have not been adequately informed about the Dawei SEZ project. Without enough information or meaningful consultation, the communities have not given their consent to the project.

Most heard of the project by word of mouth, with some only learning about it when officials came to survey their land, homes and gardens ahead of the confiscation. Less than a third . . .

Book Review: Law of the Jungle by Paul Barrett

I’ve just finished reading Paul Barrett’s new book, Law of the Jungle: the $19 billion Legal Battle Over Oil in the Rain Forest and the Lawyer Who’d Stop at Nothing to Win. Barrett’s book is about the Chevron/Ecuador saga, with a particular focus on Steven Donziger, the attorney that has represented the Ecuadorian villagers in their struggle to hold Texaco (now Chevron) accountable for the environmental destruction left behind by the company’s operations in the Ecuadorian Amazon.

In 2011, after nearly 20 years of litigation in the U.S. and Ecuador, an Ecuadorian court ordered Chevron to pay over $18 billion (later reduced to $8.65 billion) to remediate the environmental damage. Chevron, however, responded by filing a lawsuit in New York against the Ecuadorians and their lawyers, arguing that the attorneys had committed fraud and racketeering (under the RICO statute) in the Ecuadorian litigation. After a bench trial (heard by a single judge rather than a jury), in March 2014, the court issued a judgment in Chevron’s favor (“the RICO judgment”), finding that Donziger had obtained the Ecuadorian judgment by fraud and that the Ecuadorian judiciary as a whole was not impartial and its rulings need not be respected. Donziger and the Ecuadorians have appealed the RICO judgment to the Second Circuit Court of Appeals.

I’ll be up front about the fact that I am not an unbiased reviewer, although I’m going to do my best to be fair. As a new lawyer, some of my first litigation experience was representing the First Amendment rights of advocacy organizations and activists who had been the target of abusive discovery by Chevron in its battle against the Ecuadorian judgment. I also recently helped draft an amicus brief to the Second Circuit in support of Donziger and the Ecuadorians in their . . .