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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 . . .

Radical Lawyering: Reflections on the Bertha Justice Institute’s 2014 Conference

“If you've come here to help me, you're wasting your time. But if you've come because your liberation is bound up with mine, then let us work together.” –Lilla Watson

The quote, especially with the backstory, evokes a clear picture of how to approach Movement Lawyering. Because even though Australian Aboriginal Elder Lilla Watson is credited with the quote, she feels discomfort with it being attributed to her alone, as it was born of a “collective process.” It has been used in numerous activist contexts, capturing the collaborative nature of being part of a social justice movement.

The quote was also included in one of the presentations of the 2014 Bertha Justice Institute’s Social Justice Conference, a partnership of the Center for Constitutional Rights (CCR) and the Bertha Foundation, which was created to train and support the next generation of lawyers and legal advocates working for social change. As a Bertha Fellow with EarthRights International (ERI), which is a partner with the Bertha Foundation in the Be Just Network, this was a great opportunity to see how my work fits into a broader movement. The conference focused on reflecting on radical lawyering 50 years after Freedom Summer, an important movement for social justice. In many ways, Lilla Watson’s quote captures the collaborative approach of our work at ERI, as it does in many social justice movements. It was echoed in the points raised throughout the conference, where we learned theories and practical application skills on how to be an effective advocate for social justice. A “radical lawyer.”

In the morning talk, Bill Quigley, long-time activist and law professor and Director of the Law Clinic and the Gillis Long Poverty Law Center at Loyola University, framed his discussion around the elements of social . . .

US Attorneys with Colombian Heart: Reflections on Doe v. Chiquita

Juan Pablo in Mali

I remember Paul Hoffman  sitting outside the 11th Circuit courtroom in April, waiting for his turn to argue his case. His case is the case of four thousand Colombians victimized by the paramilitaries paid by Chiquita, the banana company. His indignation is the pain and suffering of four thousand Colombians, his voice echoes their strength.

Hoffman is a man with a great heart and sense of humor.  “You are obviously overdressed,” he told me in the lobby of a hotel in Miami, where we met one day before the arguments for Chiquita.  Later that day he would tell Rick Herz, Litigation Coordinator at ERI, “he did not receive the memo about the dress code.”  In my defense, I forgot to bring my shorts to Miami. 

Hoffman and Herz were there to defend the Colombian victims.  They wanted to make everybody understand that the massacres aided by Chiquita do “touch and concern the territory of the United States… with sufficient force to displace the presumption against extraterritorial application,” as the Supreme Court required in Kiobel v. Royal Dutch Petroleum.  

Helping them was the least I could do.  It has been absolutely inspiring to see how their idea of justice drives them in fighting this battle.  Hoffman and all the attorneys representing the Colombian victims have come to understand that this is their cause, too, even if they haven’t seen victims displaced by violence in Colombia with their own eyes, as I have, and as ERI’s lawyers have.  Truly, it was not necessary for them to witness such lack of fairness in order to understand that this is a fight in the name of justice. 

In addition to answering questions on Colombian law for Chiquita, I was also privileged to coordinate the draft of an . . .

EarthRights School Myanmar Students Prepare for Field Work

Myanmar Students Prepare for Field Work

As the EarthRights School Myanmar students prepare to leave for their field work the mornings are starting earlier and the nights are ending later at the Earth Rights School (ERS) in Chiang Mai. Even though their nerves are kicking in, after three months of intensive training on human rights and environmental law, Environmental Impact Assessments, International Financial Institutions, rule of law, campaigning, and much more, they’re ready.

During the last ten days of classes we have focused on preparing for field work through research methods, interviewing, fact-finding skills, photo and video documentation. Each student has been working hard to develop a comprehensive field plan that serves as their guide when they head back to Myanmar this week to visit various development project sites across the to collect information on the environmental and human rights impacts on the communities.

The students’ research topics range from mining, special economic zone projects, a gas pipeline, and an oil refinery. For many of them, this will be their first time conducting interviews and documenting earth rights abuses. The students are eager to return to Myanmar to begin putting into practice the real reason they’re at ERS: to empower their communities with knowledge of their rights and the law so that they can participate in development decisions that affect them.

Looking back on when these twelve young men and women first showed up in Chiang Mai, it’s incredible how many changes I’ve already seen. They’ve gained confidence, become stronger critical thinkers, improved their English, and have somehow managed to become even more impassioned.

Their orientation week was particularly memorable and I was immediately struck by their commitment and seriousness as community advocates. During a trust-building activity, each student was asked to draw a “river of life” as a way to share their personal story of . . .

Community-Designed Grievance Mechanisms: A Proposal to Ensure Effective Remedies for Corporate Human Rights Abuses at the Operational Level

Papua New Guinea

International human rights law declares that all people have a right to a remedy for human rights violations, and the UN Guiding Principles on Business and Human Rights (UNGPs) make clear that the right to a remedy extends to corporate human rights abuses. But what happens when those in control of how you get that remedy are the same companies violating the rights that make a remedy necessary? Who should have the final say in what kinds of harms require a remedy, and what type of remedy is acceptable? 

Here’s an interesting idea: affected communities should sit in the driver’s seat and create their own remedial mechanisms, and corporate actors should implement mechanisms that reflect international standards and community conceptions of justice and fair process.

Under the UNGPs, companies have the responsibility to provide remedies to victims of human rights abuses through non-judicial grievance mechanisms at the project level. These Operational Grievance Mechanisms (OGMs) are systems to handle complaints, resolve disputes, and offer remedies for harms caused to individuals, communities, and workers who have been, or may be affected by, a company’s operations. An OGM might, for example, provide compensation to injured victims, broker a community benefit-sharing agreement, or produce an official investigation report that uncovers the truth of human rights abuse allegations. OGMs are meant to provide easier access and more user-friendly processes than the formal court system, and may serve as an early intervention system to prevent disputes from escalating into full-blown human rights cases. With the growth of multinational companies whose projects have the potential to harm both the environment and people living all over the world, companies have started designing and implementing their own mechanisms.

However, research into existing mechanisms and reports on best practices reveal that more often than not, companies don’t have . . .

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