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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 . . .

Do development projects bring happiness?

Mekong

Based on my own experience working closely to development projects, I have realized that there are different definitions of development and happiness.

From the government’s perspective, development will improve people’s lives and therefore bring people happiness. They say that modernization or urbanization is the means for people to obtain this happiness and so they try to bring big development projects like mining and hydropower dams to communities. In reality however, most of the benefits go to investors and governors. What have communities received from this type of development? Suffering, hurt, tears, and unhappiness.

On our first day arriving arriving in Northeastern Thailand on a field trip with the EarthRights School Mekong, we discussed this idea with local villagers. There were many perspectives about these questions, however almost all of the villagers we talked to said that they used to be happy. They were happy because they were able to rely on nature and lived collectively and without harm to their livelihood. Even though the villagers weren’t rich people, they felt that they used to be a rich community before the government started bringing development projects to their village.

When we asked them about development, the villagers replied that their definition of development was the support of community activities such as training in technical agriculture and eco-tourism. They said that it didn’t only mean being asked whether or not the community agreed with the projects proposed by the government, but being asked what type of development they really wanted. Otherwise, they claimed, development projects are harmful and not really development at all.

The community knows clearly how to develop sustainably. Supporting their own decision-making power and developing the existing potential in the community is a much more sustainable form of development. Respecting their perspectives is the best way to help. If a . . .

World Rivers Day: The Humanitarian and Economic Arguments for a New Model of Hydropower

Young men pulling fish traps on the Mekong River in Cambodia.

At first glance, hydroelectric dams seem like a relatively benign source of renewable energy. They don’t churn out dangerous plumes of smog or house radioactive materials that threaten to turn whole regions into uninhabitable wastelands. They don’t inject poisonous chemicals into the water table, and besides, it’s water, so it must be clean, right?

For the better part of the last century, dams have been heralded as modern day wonders of engineering. They exemplify mankind’s ability to harness the natural world, and are sources of national pride and a signature of a country’s progress. While it is true that these dams are technological marvels and an efficient way to produce energy, that is only half of the story. While dams may not have the reputation for failing in the sudden and catastrophic ways that nuclear reactors or offshore oil rigs do, they can and do often have similar catastrophic consequences.

Boats on the Salween River in Thailand Boats on the Salween River in Thailand

According to International Rivers, there are over 40,000 large dams dotting rivers all over the globe. Upstream from each of these is a floodplain or reservoir, where the bottlenecked river pours across the surrounding lands. Depending on the size of the dam, that area can be massive. In some cases, the size and scope of the flooding can mimic a natural disaster; the floodplain of China’s Three Gorges Dam, for instance, was so large that it displaced an estimated 1.5 million people. The World Commission on Dams estimates that the number of people displaced by hydroelectric dams worldwide falls somewhere between 40-80 million.

These numbers are truly astonishing, but they still say . . .

Mother Somboun: A Happy Life on the Moun River

Mother Somboun

 “For me, development is not about modernization. It is not about new technologies and modern materials. For me, development comes from inside the heart—what I call moral development.”

These words, along with the beautiful smile of Mother Somboun, came to my mind while reflecting on my recent visit to the Rasi Salai community in Sisaket Province with the EarthRights School Mekong.

Mae (‘Mother’) Somboun has lived in the Rasi Salai community for a long time. Mae Somboun is just a regular woman, but the people of Rasi Salai call her ‘Mother’ to show the deep respect they have for her and her role within the community.

Mother Somboun is critical of the government’s approach to development and the harms of focusing only on economic growth. The government did not even ask people what they thought or if they even wanted that kind of development in their communities. She told us that the development the government provided for her community was not real development because the benefits were not going to the community; the benefits were only for the authorities and for the people living in the city. The villagers in Rasi Salai gained nothing but the loss of their land and the disappearance of their rich food source. She added, “If the government says what they do is development, what kind of development is it? And for whom?”

Mae Somboun is what many people call a ‘long-life fighter’. In addition to being a first generation campaigner against the Rasi Salai Dam, she is also well known for her involvement in the Assembly of the Poor’s 99-day sit-in protest in front of the Government House in Bangkok in 1997. She is currently one of leaders in the Rasi Salai Learning Center.  It is no wonder that many people from both . . .

Court Holds that Profits Don’t Trump Human Rights in Nestlé Case

Ivorian Children at a refugee camp in Liberia

This week, the Ninth Circuit Court of Appeals decided John Doe I, et al v. Nestlé, USA, et al. While the holding itself may not have been a game-changer, the court’s thoughtful analysis of the problems with the “myopic focus on profit over human welfare” offered some hope for corporate liability post-Kiobel.

The case was brought by three former child slaves in the Ivory Coast. Aside from 14-hour, 6-day workweeks with only scraps to eat, the children faced regular beatings and torture, and were locked up in tiny spaces. If they tried to leave, they risked, among other things, getting their feet sliced open. The plaintiffs accuse the defendants, Nestle USA, Inc., Archer Daniels Midland Company, Cargill Incorporated Company, and Cargill Cocoa, of aiding and abetting child slavery through their ongoing financial assistance and technological support. The companies “effectively control[ed]” the cocoa from the Ivory Coast, having exclusive buyer-seller relationships with many of these farms, and importing most of the Ivory Coast’s cocoa. The United States District Court for the Central District of California originally dismissed the case in 2010, holding that the defendant corporations could not be sued under the ATS, and that the plaintiffs had not alleged the elements of aiding and abetting. The dismissal was vacated, then that order was withdrawn and replaced with this decision.

While this case was on appeal, the Supreme Court handed down the Kiobel decision. Kiobel marked a change in ATS litigation by introducing a “touch and concern” test to decide whether plaintiffs can sue in a U.S. court for actions committed abroad. They do not clarify the test, but simply say that there is a presumption that statutes are not meant to apply outside of the U.S., and ATS claims must “touch and concern” the U.S. with “sufficient . . .

Justice Further Delayed in Apartheid Case

Last week, District Court Judge Shira Scheindlin in the Southern District of New York dismissed a twelve year old legal case brought by black South Africans against U.S. companies IBM and Ford. The plaintiffs are using the Alien Tort Statute (ATS) to hold U.S. corporations Ford and IBM accountable for complicity in Apartheid crimes. But there was every indication that she did so reluctantly, and with regret.

As a law student, I had the chance to work on this case before Judge Scheindlin. I was able to travel to South Africa to speak to dozens of brave individuals who described what it was like for them and their families to be deprived of their South African citizenship and forcibly moved from their homes to be placed in Apartheid regime constructed “homelands”. They explained to me how trucks would arrive one day and tell them and their family that they needed to leave; how they didn’t know where many of their family members were moved; how their South African ID cards were taken from them and they were forced to carry something called the “Book of Life” which relegated them to a “homeland” constructed by the Apartheid regime. The plaintiffs argue that the Book of Life – and its systematization - was more than an ID card, it was the product of a complex system developed jointly by the Apartheid regime and the American company, IBM and its subsidiaries, to operationalize the Apartheid project of forced denationalization. The Apartheid plaintiffs alleged that IBM provided this substantial assistance to the Apartheid regime from the United States. It was for this reason that the Apartheid plaintiffs came to the United States to seek justice; to send the message that U.S. companies who aid and abet violations of international law will . . .

What’s Next in the Chevron/Ecuador Legal Saga?

Chevron's oil pollution in Cofán Dureno, Ecuador: Community member Donald investigates one of the many unlined, open-air oil waste pits in his rainforest home.

Sludge Match: Inside Chevron’s $9 Billion Legal Battle With Ecuadorian Villagers,” Alexander Zaitchik’s recent article in Rolling Stone, is a fascinating look at the Chevron/Ecuador legal saga that dives into some of the more scandalous details that haven’t received much mainstream news coverage.  It is a must read for anyone who has followed the more than 20-year-long effort to hold Chevron accountable for environmental devastation caused by the company’s operations in the Ecuadorian Amazon. 

By examining both sides in the case’s sordid history, Zaitchik’s presentation stands in stark contrast to the way the business media has consistently simplified and obscured the narrative around the legal case. In particular, he discusses many of the morally, ethically, and legally suspect actions Chevron has been accused of taking over the years. Bribing key witnesses, pressuring co-defendants into settling and testifying on Chevron’s behalf, and tampering with the soil sampling process are just a few examples of the range of tactics Chevron is said to have employed to make the case against it go away.  I can’t help but notice the irony here: the retaliatory RICO lawsuit Chevron filed against attorney Steven Donziger and his Ecuadorian clients accused Donziger of similar wrongdoing, such as bribery and trying to pressure Chevron in to settling the environmental lawsuit.  

Earlier this year, Judge Kaplan decided the RICO case in Chevron’s favor, ruling that Donziger and his Ecuadorian clients had obtained the $9.5 billion Ecuadorian court judgment against Chevron by fraud. But Zaitchik’s article serves as an important reminder that Judge Kaplan’s decision is not the end of this extraordinary saga. The article’s summary of the writer’s discussion with ERI’s legal director creatively captures this:

Marco Simons, legal director of EarthRights International, notes a disorienting, mildly hallucinogenic

. . .

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. . . .

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