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 The dismissal was vacated, then that order was withdrawn and replaced with this decision.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. . . .

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 . . .