Brad Weikel's blog

I’ve been working in the human rights and corporate accountability field long enough that I’m rarely surprised by the shenanigans large corporations will pull to maximize their profits, to greenwash their brand, and to avoid responsibility for the negative impacts of their work. But last night I read the brief that Shell had just filed with the Supreme Court, arguing that it should be immune from suit for participating in human rights abuses against protestors in Nigeria, and I found myself fuming when I encountered this passage:

“South Africa, for example, explained that it had ‘enacted legislation … [that] deliberately avoided a “victors’ justice” approach to the crimes of apartheid and chose instead one based on confession and absolution, informed by the principles of reconciliation, reconstruction, reparation and goodwill.’”

My colleague, Jonathan, has written a preliminary legal analysis of Shell's brief, including a response to this particular section, but what I want to talk about, in this post, is the perverse moral gymnastics that Shell had to employ to reference South Africa’s Truth & Reconciliation Commission – one of the most noble-intentioned undertakings in human history – in defense of their own disregard for justice and human rights. My path to the human rights movement began in South Africa in 2002, studying the reconciliation process, so this is a topic very dear to my heart.

In early 2006, during my second trip to South Africa, I spent an afternoon in a dark, dusty, crowded classroom in the township of Gugulethu, outside of Cape Town, speaking with two remarkable people: Linda Biehl, an American mother whose daughter, Amy, was murdered in the closing days of Apartheid, and Ntobeko Peni, one of Amy’s convicted killers. Years earlier, when the four convicts applied for amnesty through the Truth & Reconciliation Commission (TRC), Linda and her husband had attended the hearing, supported the amnesty request, and, upon their release, shaken hands with their daughter’s killers.

This alone would be an astounding story of forgiveness and compassion, but by the time I met them in Guguletu, Ntobeko and Linda’s story had become even more improbable: they were working side by side, daily, at the Amy Biehl Foundation, running youth empowerment programs and educating visitors on restorative justice.

Earlier this week, the nation's largest environmental film festival kicked off in DC. Many of these films will go on to other festivals around the world, so I decided to scour the schedule and highlight the films that caught my eye, most of which intersect with the issues we work on here at EarthRights International.

Next Tuesday will be the world premiere screening of Deafening Silence, an exploration of ethnic conflicts and censorship in Burma. The film's director, Holly Fisher, interviewed our Executive Director, Ka Hsaw Wa, for her 2001 feature Kalama Sutta: Seeing is Believing and Holly tells me Ka Hsaw Wa makes an appearance in her new film, as well.

Also coming out of Southeast Asia is Waking the Green Tiger: A Green Movement Rises in China. The title is fairly self-explanatory, but I'm particularly excited about the details: the film focuses on a grassroots campaign to stop a huge hydropower dam on the Upper Yangtze River, which in China's Yunnan Province passes less than 30 miles from the Mekong River, the subject of much of our work in the region.

Bhopali, which will screen twice next week, looks at public health and poverty in the Indian city of Bhopal, which was devastated in 1984 by the worst industrial disaster in history. ERI is co-counsel for residents of Bhopal who are seeking damages from Union Carbide (now owned by Dow) for water contamination at the abandoned chemical plant, and resulting illnesses in their community. At its second screening, Bhopali will be paired with two other short films on the impacts of multinational corporations on local communities.

Our legal director, Marco Simons, was interviewed this morning by Amy Goodman on Democracy Now. The topic? The Kiobel v. Royal Dutch Shell case, one of two human rights cases that will go before the US Supreme Court next Tuesday. Here’s the video:

The stakes on Tuesday are very high, and Marco summed it up nicely:

"This case is really about whether a corporation that participates in serious human rights abuses, such as crimes against humanity or genocide or state sponsored torture, can profit from those abuses and shield those profits from the victims when the victims come to take them to court."

A favorable ruling will not only bring the Kiobel plaintiffs closer to a small measure of justice for the terrible abuses they suffered,  but it will also firmly establish the principle that victims of serious human rights abuses may bring suits against corporations under the Alien Tort Statute (ATS) in US  courts. A ruling in favor of Royal Dutch Shell, on the other hand, would be an enormous setback for corporate accountability and human rights litigation, and help immunize corporations from liability for complicity in some of the worst abuses imaginable, including forced labor, genocide, and other crimes against humanity.

In addition to the Kiobel case, the Supreme Court will also be hearing arguments in Mohamed v. Palestinian Authority, which raises similar questions about human rights lawsuits against organizations, including corporations, under the Torture Victims Protection Act (TVPA). The stakes in this case are also high. With our partners, we’ve been campaigning around both cases at the newly launched website, Corporate Accountability Now.

The Obama Administration has weighed in on both cases as well, and earlier this week my colleague Rick sent me some notes on the government’s positions:

If you read our blog regularly, you know that we frequently comment on human rights cases and campaigns from all over the world, particularly those involving large energy development projects. For instance, in the last few months we’ve written about campaigns to stop the Myitsone Dam on the Irrawaddy River in Burma, the Xayaburi Dam on the lower Mekong River in Laos, and the Belo Monte Dam on the Xingu River in Brazil.

It’s far more rare, however, that we write about similar developments in the U.S. and Canada, so I wanted to mix things up by calling attention to three pieces of encouraging domestic news that have caught my eye in the last few days…

98 year old dam comes down

Less than two weeks ago, in Washington State, crews blasted a tunnel through the Condit Dam, and the ensuing torrent drained the 92-acre Northwestern Lake in roughly two hours. The environmental consequences of this action are complicated – the release of years of accumulated sediment will hurt some downstream species in the short-term, but 33 miles of vital migratory fish runs have been reopened and the long-term impact on fisheries should be very positive.

The video below, which includes some timelapse segments of the lake draining, is absolutely stunning. The remaining dam structure will be removed in 2012. 

Last week, James Anaya, the UN's Special Rapporteur on the Rights of Indigenous People, delivered a written report and statement to the UN General Assembly, summarizing the first three years of his mandate and outlining his plans for the next three years. His report and statements highlighted four themes: the UN Declaration on the Rights of Indigenous Peoples, nation states’ duty to consult indigenous peoples, corporate responsibility with respect to indigenous and human rights and, of particular interest to us here at ERI, the impacts of extractive industries operating in or near indigenous territories:

"I have observed the negative, even catastrophic, impact of extractive industries on the social, cultural and economic rights of indigenous peoples. I have seen examples of negligent projects implemented in indigenous territories without proper guarantees and without the involvement of the peoples concerned. I have also examined in my work several cases in which disputes related to extractive industries have escalated and erupted into violence. I have seen that, in many areas, there is an increasing polarization and radicalization of positions about extractive activities."

Among other goals, our work at ERI seeks both to deter human rights abuses performed in the name of "security," and to provide non-violent alternatives to activists and affected communities, and it’s encouraging to see the Special Rapporteur continuing to focus his attention not only on the extractive industries in general, but also more narrowly on the violent abuses that often accompany extractive projects.

An online forum for indigenous rights?

On a more personal note, I was also struck by Anaya's plans to incorporate online forums into his work:

"I intend to launch an online consultation forum organized around specific questions or issues related to extractive industries. Through this forum, indigenous peoples and others will have the opportunity to submit information on their experiences with extractive industries, as well as to respond to specific questions."

Last week I vacationed in western Montana, where I was born and raised. Skipping stones on Flathead Lake and walking for miles along the Clark Fork river, I was acutely aware of the dangerously high water levels – higher than I’ve ever seen – which have led to flooding throughout the state this spring and summer. I was oblivious, however, to the environmental tragedy that was unfolding in eastern Montana: 42,000 gallons of crude oil spilling from an Exxon pipeline into the Yellowstone River. I only learned of the spill after I’d returned to work in Washington DC.

Putting it in perspective

Like many, I’m sure, the first thing I did was consult a map, and I heaved a sigh of relief after confirming that Yellowstone National Park, where I’d passed many summer days as a child, was unaffected by the spill.  Then I crunched some numbers, and almost convinced myself that it’s not so bad. After all, 42,000 gallons is only 1000 barrels, a drop in the bucket compared to the 53,000 to 62,000 barrels which spilled into the Gulf of Mexico every day for nearly three months during the Deepwater Horizon disaster of 2010.

While the impact on local Montana fisheries and agriculture won’t be known for some time -- just as we won’t know the true impacts on the Gulf ecosystem of the BP spill for years to come -- it’s encouraging that drinking water has been deemed safe in both the immediate area and further downstream in North Dakota.

So why does this small spill still break my heart? Probably because, even with a small spill on a minor pipeline, Big Oil still can’t seem to get it right.

Today is Earth Day. Maybe you've already read a few blog posts today about doing your little part: recycling, taking public transit, and turning out the lights. Or perhaps you've heard the sometimes cutesy, sometimes cynical retort: "every day is Earth Day." These are both important concepts (and, I must confess, I wrote a "do your part" post on Human Rights Day four months ago), but for those of us entrenched in the environmental movement, they are also both woefully unsatisfying. We work on deeply rooted, complex problems and, while consumer lifestyle choices play a role in these issues, tweaking our daily routines won't solve them. These are problems that demand system change, and systems changes aren't easily reduced to bullet points.

So, instead of a fun and easily digested tips list, I'd like to honor Earth Day today with a more substantive post, exploring in broad strokes the core issue we work on at EarthRights International: the intersection of human rights and the environment, and the appalling earth rights abuses occurring around the world.

Background: the theory of earth rights

In 1999, Jed Greer and Tyler Giannini (an ERI co-founder) published "Earth Rights: Linking the Quest for Human Rights and Environmental Protection." This book, which is unfortunately the only major ERI publication not currently available online, weaves together a set of legal principles and a theory of advocacy to explain the connection between human well-being and a sound environment, and the rights -- the "earth rights" -- that this connection implies. Earth rights include "the right to a healthy environment, the right to speak out and protect the environment, and the right to participate in development decisions," although Greer and Giannini's more expansive list also includes the right to life, freedom from arbitrary deprivation of one's property and interference with one's home, the rights to nondiscrimination, health, food security and a means of subsistence, as well as the rights of indigenous people.

The argument, in a nut shell, is that "a sound environment cannot be maintained without respect for human rights" and, conversely, "human rights are unattainable without a healthy and safe environment."

Today is International Human Rights Day, and the 62nd anniversary of the U.N.’s endorsement of the Universal Declaration of Human Rights. For those of us who work on human rights issues every day, December 10th can be a bit jarring, as the world’s attention focuses on our work for 24 hours and then swivels away again. We’d all love to see the energy and messages of this day persist around the year, so today I walked through our U.S. office and gathered tips from our staff on how you can do just that:

Know Where Your Money Is Going

Tip #1. Katie, our co-founder and U.S. Office Director, suggests that once every week you take a few moments to think about the human rights impacts of a product you’re buying or using (whether its gasoline or shampoo, coffee or an iPhone). Learn about the social and environmental record of the company that produced it and the country in which it was produced, about the actual conditions under which it was produced, and what will happen to it when you’re done with it. Smartphone users can use the GoodGuide app to learn about the health, social, and environmental impacts of products while they shop!

Tip #2. It's holiday giving season and Maggie, our Development Coordinator, reminds you to do your due diligence when donating to charity. Don’t donate to an organization based only on their name or mission statement... take a little extra time to learn about the programs your donation will be funding, to make sure they truly reflect your ideals and will have an impact on the ground. Don't forget to research their finances, too, so you know your money isn't being wasted.

This summer, Steve Grove of YouTube and Sameer Padania of WITNESS have been writing a series of posts on the official YouTube blog about the use of online video in human rights advocacy. Yesterday, they invited their readers to offer feedback via Google Moderator on three key questions faced by human rights advocates:

• How can uploaders balance privacy concerns with the need for wider exposure?
• How can we stay alert to human rights footage without getting de-sensitized to it?
• Does human rights content online require some kind of special status?

None of these questions are specific to YouTube or even video – they are important questions for every website, print publication, brochure, annual report, photograph, or video produced by human rights defenders.

EarthRights School Burma students on a field trip in northern Thailand

I recently watched Josh Fox's documentary Gasland, which received a Special Jury Prize earlier this year when it premiered at the Sundance Film Festival. Beautifully directed and narrated, the film is a compelling and disturbing exposé on the practice of hydraulic fracturing, or “fracking,” a natural gas drilling technique popular in the United States which relies on the injection of large volumes of chemical cocktails into the earth. Fox argues that portions of these chemicals are finding their way into water sources across the country, with terrible consequences for public health and livelihoods.

Water from a kitchen sink catches fire in Dimock, Pennsylvania

Early in the film, Fox travels to Dimock, Pennsylvania, to meet families who are suffering from a variety of health issues and who are able to light their kitchen tap water on fire. He narrates the following:

I was starting to compile a list of the things that happened in Dimock: water trouble, health problems, hazardous explosive conditions inside the house, destruction of land, lack of confidence in state regulatory commissions, a feeling of having been deceived, a feeling of powerlessness, dead or sick animals, the difficulty of obtaining good information about gas drilling, and the idea that there is a cover up taking place.

In other words, a total loss of normal life.

Who knows if they're right? I don't. It's all speculation... but these citizens certainly felt as if they had been wronged and that there was no one for them to complain to.

Later, as he treks through Colorado, Wyoming, Utah and Texas and discovers further water and health anomalies, Fox becomes increasingly certain that fracking is creating environmental health hazards, and I can't say I disagree.