Marco Simons's blog

Chevron, facing a landmark lawsuit in Lago Agrio, Ecuador, over pollution left in the Amazon by its predecessor, Texaco, has increasingly gone on the offensive against the Amazonian communities bringing the lawsuit.  Chevron has accused the plaintiffs, their lawyers and supporters of all manner of dirty tricks, and even denounced the awarding of the Goldman Environmental Prize to the two leading Ecuadorian lawyers.  The plaintiffs in turn allege that Chevron's personnel have admitted tampering with evidence, and that Chevron hired a convicted drug trafficker to attempt to entrap the presiding judge in a bribery scheme, among other things. 

But on Tuesday Chevron's efforts to discredit the case reached a new level, as Chevron sued the Ecuadorian plaintiffs themselves in federal court in New York, accusing them of fraud, interfering with contracts, trespass, unjust enrichment, and conspiracy.  Chevron has also levied even more serious charges against the lawyers, expert witnesses and affiliated organizations, accusing them of racketeering under the Racketeer Influenced and Corrupt Organizations Act (RICO).

Most of Chevron's allegations arise out of a court-appointed expert report in Ecuador, over which the plaintiffs allegedly had improper influence, and various statements by the plaintiffs' lawyers and allies which Chevron contends are false and are calculated to force Chevron into a settlement.  I have no idea whether there is any truth to Chevron's allegations, though it wouldn't surprise me if some of what has happened in the Ecuadorian court proceedings would seem unusual or even outrageous by US standards.  Indeed, the plaintiffs themselves originally filed this case in New York, and wanted to litigate in the US--they didn't want the case moved to Ecuador because they feared the court system was subject to political influence and not up to the task of hearing a case like this.  (At one stage when the case was in the US, ERI filed an amicus brief supporting the plaintiffs.)

Last fall, I blogged about a decision by the Second Circuit Court of Appeals, in New York, ruling that corporations could not be sued for international human rights abuses under the federal Alien Tort Statute (ATS).  This sent shockwaves through the human rights legal community, but its impact is far from determined, especially as other federal appeals courts begin to decide whether to follow or reject Kiobel.

Yesterday, I watched a hearing at the D.C. Circuit Court of Appeals in Doe v. Exxon Mobil, a human rights case involving abuses in Indonesia.  Corporate liability is an issue in the appeal, but the judges made it clear that they were not about to follow the Second Circuit's ruling without examining whether it was correct--and they asked a lot of tough questions of both sides.  One judge indicated that he thought it made sense that the issue of corporate liability under the ATS should be a question for US domestic law (in which corporations are universally held liable on the same basis as human beings)--and the judges made it clear that they had read the amicus briefs detailing the ways in which the Kiobel analysis was flawed (for example, in supposing that German corporations who partnered with the Nazis were not subjected to punishment after WWII).

Indeed, we still don't know what's happening with the Kiobel decision itself.  After the ruling, the plaintiffs filed a petition for rehearing, which asked the panel to reconsider its decision and also asks all of the judges on the court (the "en banc" court) to review what the three-judge panel had done.  In late December, the court issued a notice saying that the petition for rehearing had been denied, which would ordinarily signal the end of the process.  But the next day, the clerk issued another notice saying that the first notice had been issued in error. 

Back in November, we blogged twice about Oklahoma's new constitutional amendment forbidding courts from considering international law or foreign law, especially Sharia.  The American Constitutional Society has since published a short paper, Oklahoma State Question 755 and An Analysis of Anti-International Law Initiatives, in which Martha Davis and Johanna Kalb discuss the amendment and other similar proposals.  The analysis of the Oklahoma law is worth reading, but what's more eye-opening is the review of what's been proposed elsewhere.  A 2004 federal bill would have allowed impeachment of federal judges who rely on foreign or international law.  Measures similar to Oklahoma's, though without the specific focus on Sharia, have been proposed in Arizona, Idaho, and South Carolina.

By far the most audacious, however, is a proposed Iowa law that states that, under penalty of impeachment:

The newest U.N. human rights treaty, the International Convention for the Protection of All Persons from Enforced Disappearance, enters into force today.  The convention absolutely prohibits the practice of disappearing people, defined as detaining someone "followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law."  Disappearance has generally been recognized as a human rights abuse since the 1980s, but the new treaty creates a mechanism for monitoring efforts to stop disappearances, as well as an optional individual complaints procedures.

The treaty, which was opened for signature in 2007, enters into force 30 days after its 20th ratification--in this case, it was Iraq that put it over the top.  Unfortunately, however, the United States has not signed or ratified the treaty, probably due to fears that it will interfere with anti-terror efforts.  (But if Iraq--a country that faces far more terror attacks than does the U.S.--can do it, I wonder why the U.S. should have a problem.)  Other countries that ERI has experience with--including Burma and all of the other Mekong countries, Peru, Colombia, and India--are also not parties to the treaty, although Colombia, India, and Laos have signed it but not yet ratified it.

Many human rights treaties start slowly, and eventually gain wide acceptance.  The Torture Convention, which also entered into force after 20 ratifications, took about three years to get to that point and is now ratified by 147 countries around the world.  The Disappearance Convention itself is the product of nearly 30 years of work, starting with a 1978 General Assembly resolution and followed by a 1992 U.N. declaration.  So while the development of human rights law is sometimes slow, the issues that are the subject of non-binding declarations today--such as indigenous peoples' rights--may eventually be governed by widely-ratified treaties with a mechanism for enforcement.

We've had a little time to review Monday's ruling from the Ninth Circuit Court of Appeals, which held that ERI's case against Occidental Petroleum should be heard in federal court in Los Angeles, rather than sent to Peru as Oxy was seeking.  (The case page has all the relevant docs.)  We represent victims of pollution from the Achuar indigenous group in the Peruvian Amazon.  There are several points worth noting, both for their impact on this case and in future cases.

A bit of background

We filed this case in 2007 and Oxy responded with a motion to dismiss for "forum non conveniens" (FNC), which is a bit of legal Latin that simply means "inconvenient forum"--basically, that even if the court has jurisdiction over of the case, there's another court somewhere else that would be a better place to hear it.  Oxy also sought to dismiss Amazon Watch as a plaintiff because they argued that Amazon Watch did not have standing to sue.  The trial court dismissed the case based on FNC, ruling that it should be heard in Peru, and found that it didn't need to decide whether Amazon Watch had standing.

The Ninth Circuit's ruling

It's interesting to note that the FNC test has several parts, and the Ninth Circuit found problems with the trial court's approach at every step.  First, FNC requires that there be an alternate forum--a court somewhere else--that can hear the case.  The Ninth Circuit found that the Peruvian courts were not adequate to hear this case.  Although the court took pains to emphasize that it was not issuing a general indictment of the Peruvian legal system, it did say that based on the unique circumstances presented here, it wasn't appropriate to send the case to Peru.  What are those circumstances?  The court didn't precisely enumerate them, but it did mention that Oxy intends to argue that the statute of limitations has run in Peru, that Peruvian law appeared to offer no more than nominal compensation for injuries, that Peru would provide no remedy to Amazon Watch, and that Oxy's own expert witness had submitted evidence substantiating corruption in the judicial system.

Last week, Rick blogged about the recent passage of an amendment to Oklahoma's state constitution which "would prevent Oklahoma courts from considering 'the legal precepts of . . . international law or Sharia Law.'" In brief, Rick dismissed the amendment as unconstitutional and impractical, and I agree.

However, one commentor wrote that "Sharia is unconstitutional" and gave examples of "beheading apostates and homosexuals and stoning adulterers to death," examples which would be of grave concern were they actually plausible. Obviously, as a human rights organization, EarthRights International is opposed to beheadings and stonings, and I thought I should clarify what is and isn't at stake here, as there are a great many misconceptions about what the Oklahoma provision actually does, what Sharia is, and how Sharia might be used, without controversy, by courts in the United States.

First, as Rick noted, the Oklahoma provision applies to all foreign and international law.  This paints with a much broader brush than simply targeting Sharia law, and excluding international law (which is often binding on states) is clearly problematic.

Second is the question of what Sharia is.  Incredibly, the Oklahoma provision does not define it; although the ballot question states that Sharia is "Islamic law," based on "the Koran and the teaching of Mohammed"--which is vague enough already--the actual constitutional amendment does not define it at all.  While Sharia is generally accepted to be derived from the teachings of Mohammed, scholars do not agree on its content, and Sharia as applied by different Islamic states is not uniform. 

Last Friday we filed a rather unusual motion in the Second Circuit Court of Appeals, the federal court that decided the Kiobel case two months ago.  (Kiobel was the decision that held that corporations cannot be sued for human rights abuses under the Alien Tort Statute.)  Seven groups of legal scholars and NGOs filed amicus briefs arguing that the case should be re-heard, supporting the plaintiffs' petition for rehearing.  Unfortunately, all of these amicus briefs were rejected--by the same judges who decided Kiobel.  So we filed a motion asking the full Court of Appeals to reconsider whether the briefs can be filed.

What's going on here?  It may only be of interest to lawyers, but it's important to the way our courts function.  Federal appeals courts hear cases in panels of three judges; Kiobel was decided by two judges, with the third judge disagreeing.  A panel decision can be reconsidered by the court sitting "en banc," which means roughly "as a whole"--all of the active judges of the court get together to hear the case again.  In the Second Circuit, that's ten judges right now.  (There are three vacancies, which President Obama has nominated candidates for; "senior" judges, a semi-retired status that still allows them to hear cases, generally are not included in the "en banc" court.)  When a party files a petition for rehearing, it gets circulated to all of the judges, who can then vote to decide to whether the case will be re-heard "en banc."

The problem here is that only the original three judges decide whether to accept the amicus briefs, and they can prevent the other judges from seeing them--the amicus briefs only get circulated to all of the judges if the judges who wrote the opinion decide to accept them.  So the judges whose opinion is being challenged can decide whether their colleagues see amicus briefs that challenge their decision.  I don't think that's an appropriate gatekeeping function for judges who obviously have an interest in limiting access to this material.

This morning in Geneva, the U.N. Human Rights Council met for a review of the human rights obligations of the United States—including obligations to hold corporations accountable for human rights abuses, which were highlighted by comments from India.

The session was part of the Universal Periodic Review (UPR) process, in which the council reviews each U.N. member state’s human rights obligations every four years.  As part of the UPR process, NGOs and other stakeholders can make submissions highlighting particular issues; ERI participated in this process by assisting in a coalition submission on corporate accountability and also by making a specific submission on the U.S. government’s position in human rights cases in U.S. courts.

The Indian ambassador to the U.N., Gopinathan Achamkulangare, began his comments by highlighting the problem of corporate human rights abuses and questioning the U.S. delegation on the government’s position on the Alien Tort Statute, as well as the recent decision in Kiobel v. Shell:

Persistent concerns have been expressed about human rights abuses by business corporations that have often negated their positive impact on economic development and human rights.  We would request an evaluation of the U.S. government’s position on its Alien Torts Claims Act, under which foreign plaintiffs can bring lawsuits against U.S. companies for breaches of international law, including human rights law, committed by these companies outside the U.S. territory, and the recent judgment on this law by a New York circuit court that denies such recourse.

[Audio (requires RealPlayer)] 

This follows an event in Geneva yesterday (link to CCR page), co-sponsored by ERI, in which victims of corporate human rights abuses and human rights advocates discussed the problem of corporate accountability in the U.S.

The recent decision by the Second Circuit Court of Appeals in Kiobel v. Royal Dutch Petroleum, which ruled that corporations cannot be sued for human rights abuses under the Alien Tort Statute (ATS), was adopted today by an Indiana federal court in the Flomo v. Firestone case, which alleges forced child labor on rubber plantations in Liberia.

Interestingly, while she agreed that corporations cannot be sued under the ATS, the judge in Flomo disagreed with Kiobel in one respect: she said that the court does, in fact, have jurisdiction over an ATS case against a corporation.  This matters, because a court without jurisdiction usually must dismiss a case without deciding any other issues.  In the Flomo decision, the judge stated that she would soon issue a subsequent decision that outlines additional reasons for dismissing the case--something she could not do if the court lacked jurisdiction.

The issue of whether the question of jurisdiction also matters for the Kiobel case itself.  Because Kiobel was at the Second Circuit on an "interlocutory" appeal--an appeal in the middle of a case, before a final judgment--the Second Circuit could consider only a limited set of issues in the case.  Corporate liability was not considered by the district court judge, was not raised by the defendant, and was not briefed by anyone in Kiobel.  So the Second Circuit was only able to decide the issue because they thought it was a jurisdictional issue.  If it wasn't a question of jurisdiction, the court could not have considered it.

This may be one of the key questions that the Second Circuit faces as it considers whether to re-hear the Kiobel case in front of the full court: Regardless of whether the panel's decision was correct, was it a matter of jurisdiction?

Last Friday, I posted about an unfortunate decision from the Second Circuit Court of Appeals that corporations cannot be sued under the Alien Tort Statute (ATS) for human rights abuses. That post caught fire, bringing in thousands of new readers and a number of comments on our site, as well as on Reddit.com and other social media sites. In this follow up post, I want to address some comments our readers have made, including questions about the legal implications of the ruling and the general sense of anger at the runaway train of corporate power.

What is the scope and impact of this ruling?

The ruling in Kiobel v. Royal Dutch Petroleum applies to the ATS, a U.S. federal statute that allows lawsuits for violations of international law--including serious human rights abuses.  The court, one of thirteen federal appellate courts, found that corporations could not be sued under the ATS.  At the moment, this ruling only applies directly in the Second Circuit, which covers the states of New York, Connecticut, and Vermont.  Another appeals court, the Eleventh Circuit, previously ruled that corporations could be sued under the ATS; its ruling applies in Florida, Georgia, and Alabama.  Everywhere else--including the vast Ninth Circuit, where our case against Unocal was litigated--is still up for grabs.  The danger, however, is that Kiobel will be influential to other courts considering this question.

Will it stand?

There are two ways in which the Kiobel decision might be overturned.  This decision was by a three-judge panel of the Second Circuit, and it is possible (though rare) for the court to rehear the case "en banc," in front of all ten active judges of the court.  The plaintiffs will probably request a rehearing soon, and ERI will probably support this request.  Predicting en banc results is always difficult.  The court is evenly divided between appointees of Democratic and Republican presidents, but party affiliation is not very predictive--Judge Cabranes, who wrote Kiobel, was a Clinton appointee, and Judge Hall, who previously wrote an opinion stating his understanding that "corporate actors are subject to liability under the" ATS, was appointed by George W. Bush.