Guest's blog

A few weeks ago, Cook and I observed a consultation between Sor Rattanamanee Polkla, a Thai lawyer, and representatives from 8 communities (Chiang Rai, Loei, Nongkhai, Buangkarn, Nakonpanom, Mookdaharn, Aumnatcharoen and Ubon Rachthani), to discuss next steps in their fight against the controversial Xayaburi dam in Lao PDR. Last August, on behalf of the 8 communities, Sor filed a case in the Administrative Court of Thailand challenging the validity of the power purchase agreement between the Electricity Generating Authority of Thailand (EGAT), the buyer, and the Xayaburi Power Company Limited, the operator.  The power purchase agreement is driving the construction of the Xayaburi dam, which, if completed, will very likely impact and threaten the livelihoods of these downstream communities.

Sor has extensive experience working closely with communities in advocating for their rights. As Cook previously wrote, in conducting several community consultations during the course of this case, Sor is trying to use the Mekong River Commission’s Procedures for Notification Prior Consultation and Agreement (PNPCA), procedures that the National Energy Policy Council, Thai Cabinet, and EGAT shirked when signing and approving the power purchase agreement.

A Bump in the Road

Disappointingly, the Administrative Court of Thailand recently denied jurisdiction to hear the communities’ case, prompting this most recent urgent community consultation. The administrative court based its decision on three grounds:

1. the plaintiffs are not considered injured persons as conditions and compliances set by the Cabinet before concluding the power purchase agreement are considered part of the internal administrative process;
2. the power purchase agreement is binding for contractual parties, such as EGAT and the Xayaburi Power Company, therefore third parties like the plaintiffs are not considered injured persons; and
3. although the defendants did not comply with PNPCA, such process is not considered an administrative act and therefore the court is not able to hear the case.

Nevertheless, this is not the end of the communities’ efforts to delay or halt the project. 

In a small, but significant victory for corporate accountability, a Dutch court this week ruled that Shell Petroleum Development Company of Nigeria Ltd, a wholly-owned subsidiary of Royal Dutch Petroleum (Shell), must compensate a Nigerian farmer for losses resulting from a pipeline leak that poisoned farmland in the Niger Delta.

The suit against Shell Nigeria and its parent Shell, brought by Friends of the Earth Netherlands on behalf of Nigerian farmers, sought damages for widespread oil pollution caused by inadequate infrastructure maintenance.  Shell argued that the oil spills were a result of sabotage, not poor maintenance of its facilities. Although the court appeared to accept Shell’s argument, it concluded that Shell Nigeria could have easily prevented the sabotage.

Even though the court ultimately dismissed most of the claims brought by the Nigerian farmers against Shell Nigeria, and all of the claims against the parent corporation, the ruling is nevertheless a significant milestone. It marks the first time a multinational corporation has been found liable in Dutch court for damage caused overseas. The court examined the role of the parent company as well as the actions committed by Shell Nigeria, despite the fact that the link between Shell Nigeria and the Netherlands is limited.   

This post was written by MIchelle Harrison, a Legal Fellow in ERI's U.S. office.

This week, as BP accepts responsibility for environmental damage and loss of life resulting from its 2010 oil spill in the Gulf of Mexico, Chevron continues to dodge accountability for the devastation it has caused in the Amazon. BP’s tragic spill is the largest in US history, but may pale in comparison to the disaster caused in Ecuador.

As previous blog posts here have highlighted, Chevron has been engaged in a long-running battle over enormous environmental and human health damage caused by oil drilling in Ecuador. After years of litigation, an Ecuadorian court last year imposed an $18 billion judgment on Chevron for deliberately dumping toxic waste into Amazon waterways used by indigenous groups for drinking water and causing massive destruction to the rainforest. Rather than accept responsibility, Chevron has engaged in all out war against anyone who has dared to be involved in the effort to hold the company accountable. When the $18 billion judgment came down, Chevron responded by suing more than 50 people who were involved in the suit, including the indigenous plaintiffs and their counsel, claiming they were part of a massive conspiracy to defraud the oil giant. Chevron has vowed it will never pay.

This summer I traded in the hot heat of a Washington, DC summer for the winter months in Lima, Peru. For my first law school internship I joined EarthRights International and the four-person (plus two interns) team in the Amazon Office.

At the end of two months I had taken a trip to the jungle to interview potential clients, helped plan and coordinate a month-long training for indigenous leaders, learned from other Peruvian attorneys about impact litigation in the region, supported the research needs of the Peru and Washington D.C. office and reinforced my commitment to human rights. 

The day-to-day in the life of an ERI Amazon Office Intern is varied. Some days Amanda (my fellow friendly intern) and I were busy coordinating speakers for the Amazon School for Human Rights that was taking place in late August. Other days we were pulled into meetings with local nongovernmental organizations (NGOs) or with Peruvian attorneys who also work on human rights issue.

The author, Jessica (left), with fellow intern Amanda, in Peru

ERI's Amazon office in Peru is only a year old, so there is still coalition-building to be done and other advocates to learn from who are already active on human rights issue in the region. In between coordinating speakers and meeting with other advocates, Amanda and I each focused on our individual legal research projects.

While Amanda was researching the legal norms applicable to indigenous peoples living in voluntary isolation, I was busy exploring limits on civil remedies in U.S. courts for oil contamination in the Amazon. In the process, I was able to learn a lot about the intersection of environmental harms, indigenous peoples’ rights and the relevant applicable laws to bringing a human rights case that protects both the people and the land affected. 

Last week, as the Kiobel case was being argued inside the Supreme Court, and many of ERI’s attorneys were sitting inside listening to oral arguments, I stood outside holding a sign that read, “Corporate Torture is Still Torture.”

As a law student, I would have loved to be sitting in that court room, listening to the caustic banter between Shell’s attorney, Kathleen Sullivan, and the nine Justices. But as an activist, I was so proud to be standing outside, with ERI and other activists, rallying for something in which I so strongly believe: that U.S. courts should provide a forum to everyone, no matter their national origin, to pursue justice for the most heinous of international human rights violations, including torture, murder, and rape.

Nonetheless, as I helped with the vigil ERI had organized, I waited impatiently for the attorneys to emerge. As I handed out brightly colored signs with #ShameOnShell emblazoned across them, I could not stop thinking about what was happening inside. I was so anxious.

Human rights advocates rally outside the Supreme Court on Oct 1, 2012

Although I only began interning at ERI a month ago, I have long been following their work. In fact, ERI and others’ groundbreaking work with the Alien Tort Statute was one of the primary reasons I decided to go to law school. Rallying outside the Court, I was acutely aware of the tireless labor by ERI and others, over three decades of ATS human rights cases, and I struggled with the thought of all of that being taken away. I knew that a ruling against the plaintiffs would mean not only an upset for the human rights legal community, but also crushing disappointment to victims of human rights violations who believe vehemently in what the USA has to offer –an opportunity for them to finally seek justice.

Whether they are dancing to the “Cha Cha Slide”, laughing until it hurts, or eating delicious Burmese tea leaf salad, the 17 students at HEART seem just like young adults from any other country. You would never guess that most have lived in refugee camps for over half their lives, due to the greed of corporations and the violence of government security forces. You would never know that some have been coerced by the military to do backbreaking labor without any compensation. These human rights abuses and numerous others have become normalized to them, and everyone they know has been affected by the same mistreatment and lived under the same circumstances. All of these students, their parents, and their grandparents have dealt with human rights abuses. Now, these students are dedicated to making certain that their children do not have to suffer as well.

After two months at HEART, I have learned that every student has a story. Though I have studied human rights for three years at university, hearing these stories firsthand has changed how I perceive these abuses. No longer are they words on a page, a paragraph in a report, or an interview in a documentary. They have come to life in the eyes of a friend, the emotion of a speech, and the passion of a presentation. Descriptions of human rights violations are no longer merely words, but are real experiences felt by real people. While the students act like everything is fine most of the time, the truth is that they have been victims of forced labor, discrimination, forced relocation, unequal education opportunities, and more. These students have worked hard and endured a lot to get where they are today.

HEART students painting their school

EarthRights International (ERI), along with lawyers from Goulston & Storrs, filed a motion for summary judgment yesterday on behalf of Oxfam America in its case against the U.S. Securities & Exchange Commission (SEC). When Congress enacted Section 1504 of the Dodd-Frank Wall Street Reform Act in July 2010, it gave the SEC 270 days to issue final rules governing the disclosure of payments made by extractive companies. Section 1504, and the implementing rules, are critical to combating the corruption and waste that too often results when such payments remain secret.

Although the SEC published proposed rules to implement Section 1504 on December 15, 2010, it has missed the statutory deadline to adopt final binding rules. When Oxfam America filed its lawsuit alleging undue delay in issuing the rules in May 2012, the SEC  was more than a year past that deadline. The motion filed yesterday asks the court to recognize that the SEC illegally withheld promulgation of the rules as a matter of law.

The SEC is scheduled to vote on final rules next Wednesday, August 22. If they do not adopt rules at that time, ERI is confident that, as a result of our suit, the Court will order them to do so.

If they do adopt rules, our focus will shift to whether those rules implement Congress’ intent. After Section 1504 was passed and the SEC solicited public comments, a debate of sorts emerged among the commenters from NGOs, business, academics, and other experts. Industry has sought to eviscerate the law by advocating for rules with a variety of loopholes. ERI, along with Oxfam America, fellow members of the Publish What You Pay (PWYP) coalition, and other NGOs, has advocated for the adoption of rules that:

Last week, Shell filed its latest brief in the Kiobel case, taking a position that would immunize corporations that commit human rights violations abroad from liability in the United States. While Brad and Jonathan have already posted their initial reactions to the brief, I was struck most by this passage on pages 51 and 52:

[A]pplication of the ATS and federal common law to foreign conduct risks adverse impacts upon the Nation’s commercial interests. Contrary to Petitioners’ assertion that there have been relatively few corporate ATS cases since Filartiga, there have in fact been more than 115 such cases. And ATS suits involving foreign conduct frequently entail invasive discovery that could coerce settlements that have no relation to the prospect of success on the ultimate merits. Settlement pressure is further exacerbated by the high-profile nature of ATS suits, which provides a platform for plaintiffs or their proxies to engage in aggressive public-relations campaigns that inflict significant reputational harm on corporate defendants. Indeed, the mere filing of an ATS suit can have an adverse effect on a company’s stock price and debt rating. (internal citations and quotations omitted).

My initial reaction to most of this reasoning was simply: so what? While Shell’s brief is noticeably lacking in evidence supporting these statements, the more important point is that they have no bearing on whether or not the ATS applies to human rights violations committed abroad.

Sure, major corporations may find it inconvenient to defend against allegations that they were complicit in crimes against humanity. But that is not a reason to find that they are immune. Major corporations, and the United States itself, are frequently the subject of lawsuits that may have adverse commercial implications—and we don’t deny plaintiffs the opportunity for redress because of the potential or actual costs. If we don’t deny victims a forum for even ordinary claims, why would we do so when the crimes at issue are the very worst kinds imaginable?

On July 25th, the Inter-American Court of Human Rights issued a long awaited sentence in the case of Sarayaku v. Ecuador, affirming the rule that indigenous communities throughout the Americas must be consulted before their governments approve investment projects that affect their use and enjoyment of their traditional lands.

A bit about the case: in 1996, Ecuador’s state oil firm Petroecuador signed a prospecting deal led by Argentina’s Compañía General de Compustibles (CGC) in partnership with US-based ConocoPhillips/Burlington Resources. Much of this land covered the ancestral land of the Kichwa community of Sarayaku, located deep in the southeast Ecuadorian Amazon.  Although protests and domestic legal actions stalled oil exploitation until 2010, the oil consortium had already done much damage during the “exploration” phase. By 2003, CGC had drilled 467 boreholes around the town packed with 1,433 kg of high-impact explosives, felled trees, destroyed a sacred site, and ruined several water sources. In 2003 the Sarayaku community took the case to the Inter-American Commission on Human Rights, who then presented the case to the Court in 2006 after Ecuador ignored the Commission’s 2004 precautionary measures requiring the operations to be suspended.

In its decision, the Inter-American Court concluded that Ecuador breached Sarayaku’s right to prior consultation, communal property, and cultural identity when it approved the prospecting project, and CGC’s activities had threatened their right to life and personal integrity. The Court also ruled that Ecuador violated Sarayaku’s right to judicial protection because the domestic judicial resources used by the Sarayaku in Ecuador were ineffective at remedying these human rights violations.  The Court ordered Ecuador to pay damages for material and nonmaterial harm, clear the explosives, make a public act recognizing their international responsibility for the harms caused, and completely overhaul the state’s consultation processes.  Adding to the requirements of free, previous, and informed consent already established in the 2007 case of Saramaka v. Suriname, the Inter-American Court stated that consultation must be carried out in good faith in order to achieve agreement or consent between parties, and consultation of indigenous communities must be conducted in the first planning stages of development projects that will affect their territory.

This guest post was contributed by Kendall Manlove, a legal intern in our US office. Kendall is a rising second year law student at Moritz College of Law at The Ohio State University and has previously worked with ALTSEAN-Burma. Opinions and analysis in this post are Kendall's own. ERI has also posted our official statement on US investments in Burma.

In her long anticipated Nobel Lecture last month, Daw Aung San Suu Kyi called for “cautious optimism” regarding Burma “not because [she did] not have faith in the future but because [she did] not want to encourage blind faith.”  As someone who has been active in the Burma democracy movement, I can attest that the recent changes in the country have been staggering. Less than three years ago, the former military regime arbitrarily sentenced Suu Kyi to an additional 18 months of house arrest for letting a deranged American into her home after he swam onto her property. Today, she is a member of the Burmese Parliament.

Burma’s nascent political reforms have precipitated calls for the West to roll back economic sanctions. Recognizing that the rest of the world was about to take advantage of new investment opportunities, the Obama Administration announced on May 17 that it was relaxing economic restrictions on new investment in Burma. That day, Secretary of State Hillary Clinton said: "we say to American business: invest in Burma and do it responsibly." Today, the Obama Administration announced what they actually meant by “responsible investment” when it released the rules these investors must follow in order to maintain their license to invest. While the rules cover a number of important issues, the U.S. missed an opportunity to develop a comprehensive framework that could have been used as leverage to push for continued reforms in Burma.