Blogs

With the Lao government moving ahead with the construction of the Xayaburi Dam despite objections from environmental experts and its downstream neighbors, advocates are heightening efforts to expose legal violations surrounding this project. 

Yesterday, villagers from affected Thai communities asked the Central Administrative Court to conduct an emergency hearing in view of recent developments that are seen to cause irreversible damage to the Mekong River. They have previously filed a case seeking the suspension of the  Power Purchase Agreement between Xayaburi Power Company and the Electricity Generation Authority of Thailand (EGAT) on grounds of constitutional violations.

Construction at the Xayaburi dam site (photo courtesy of International Rivers)

On Friday, the U.S. government announced that imports of goods from Myanmar/Burma, which had previously been prohibited, are now allowed. (Legally, this is done by General License No. 18 issued by the Treasury Department, which is attached below.) The only exceptions are rubies and jadeite, the main gems produced in Myanmar; the U.S. says that some "concerns" remain about the production of gems in Burma.

The license does allow direct imports of timber, including teak. Ironically, however, that may soon be banned from the other end - the Myanmar government has stated that it's planning to ban exports of timber starting in 2014. But, as the Irrawaddy reports, that may not help curb the illegal logging trade, which is a significant cause of deforestation in Myanmar.

I was thrilled last Thursday afternoon to hear that the SEC has blocked the oil industry’s first move in its attempt to undermine new transparency requirements.  The American Petroleum Institute (API) and other industry representatives petitioned the SEC to stay new disclosure requirements until the court’s decide on their lawsuit to overturn the law, but the SEC denied the request in no uncertain terms.

We've written in previous posts about Section 1504 of the Dodd-Frank Act, which directs oil, gas, and mining companies to publish the payments they make to the governments of the countries where they operate.  The SEC issued regulations for Section 1504 in late August, requiring companies to publicly disclose their payments for every project in each country where they operate, with no exceptions.  API sued the SEC, complaining that the law would be costly to comply with and would harm covered oil companies’ ability to compete for business abroad.  They claimed that at least four countries prohibit disclosure and predicted that they might have to withdraw from those countries, incurring tremendous financial losses, rather than violate their laws. (ERI and others had previously refuted each of these claims.)   Oxfam America – represented by ERI and two law firms – is currently defending the rules against API’s challenge to ensure that they go into effect as planned.

API asked the SEC to stay the rules and postpone the compliance date until after the legal challenge is concluded – which could take anywhere from five months to two years.  ERI and its co-counsel forcefully opposed a suspension, but convincing the SEC was an uphill battle.  The Commission had granted industry a suspension in the Business Roundtable litigation – an earlier case in which industry successfully overturned business regulations – and seemed inclined to do the same for API.

An important chapter in the search for justice by survivors of a massacre in the Democratic Republic of Congo came to a disappointing end this week, when the Supreme Court of Canada rejected their appeal of a lower court’s dismissal of their claims against Anvil Mining.

In 2004, an estimated 100 civilians died when the Congolese army attacked the town of Kilwa, which served as the base of operations for Anvil Mining, a Canadian/Australian company.  The survivors alleged that Anvil employees transported the soldiers to Kilwa, paid them, and gave them logistical support, including driving them around Kilwa during the massacre.  A Superior Court judge in Québec initially gave the plaintiffs a green light to pursue their claims, but the decision was later overturned by the Québec Court of Appeals, which ruled that the case should instead proceed in Congo or Australia. (I analyzed this decision in a previous blog post.) 

The Supreme Court’s decision to turn aside the plaintiffs’ appeal means that the Canadian courts are closed to their claims.  This outcome is not exactly surprising; Canadian courts have been quite aggressive in their use of the forum non conveniens doctrine to rid themselves of international human rights cases.  It’s disappointing, though, because for a brief moment the Canadian judiciary appeared to be willing to exercise the authority it has to apply universal human rights standards to companies that benefit from doing business in Canada.

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. 

This August and September, the Amazonian School for Human Rights (EADH for its Spanish acronym) in Pucallpa, Peru, successfully carried out its 6th year of classes for indigenous leaders of the Peruvian Amazon. The EADH was founded in 2007 as an initiative of four alumni of ERI’s former Amazon School for Human Rights and the Environment, which trained students from 2001 to 2005 in Ecuador. The alumni have adapted ERI’s model of training for indigenous leaders and human rights defenders of communities in the Peruvian Amazon.

Since its founding, EADH has worked to increase knowledge regarding rights, the petroleum industry, and legal defense, but also emphasizes leadership training, having now provided capacity-building workshops to more than 130 indigenous leaders from across the Peruvian Amazon. Many of these leaders  are currently in decision-making positions within their organizations or active in other ways at the service of their peoples.

This year’s EADH session, now formally part of the regional Ucayali indigenous federation, ORAU, was directed by ORAU vice-president Lizardo Cauper, an EarthRights School alumnus who also co-founded the EADH School. Other EarthRights School alumni involved in coordinating the school include Robert Guimaraes, Cecilia Brito, and Ronald Suarez. This year, ERI provided support in designing and coordinating the syllabus and speakers, and ERI staff taught a class.

The students, both men and women, are chosen by their indigenous organizations. All participants come from peoples and communities that are affected by extractive industries or mega-infrastructure projects that are promoted by the central and regional governments. As a requirement for participation, the students must be involved in or carrying out activities that defend the rights of indigenous peoples affected by extractives and mega-projects.

The school is also an opportunity for indigenous leaders to build bridges across communities and share their experiences. Each participant shared the types of projects that affect or threaten their communities and their personal working experience in defending the rights of indigenous peoples. This year in particular saw an increase in the participation of indigenous women.

Here at ERI, we have been closely following two cases, Al-Quraishi v. L-3 Services, Inc., and Al Shimari v. CACI International, Inc., brought by the Center for Constitutional Rights on behalf of detainees of military prisons in Iraq against two private military contractors alleged to have conspired to torture and abuse the plaintiffs at Abu Ghraib and other detention centers. Yesterday we were thrilled to learn that the Al-Quraishi case was resolved in a confidential settlement.

ERI has acted as an amicus in both cases, submitting briefs before the 4^th Circuit Court of Appeals arguing in support of the plaintiffs that their claims should be allowed to go forward and that they do not implicate the special “foreign affairs preemption doctrine,” which bars certain claims that interfere with U.S. foreign policy.

Last May, in an 11-3 decision, an en banc panel of the Fourth Circuit dismissed the defendant military contractors’ appeal for lack of appellate jurisdiction and remanded the case back to the district court.

While the Al Shimari v. CACI case will now move forward into discovery before a court in the Eastern District of Virginia (the home district of CACI), the plaintiffs in Al-Quraishi v. L-3 Services, Inc., voluntarily dismissed their claims against L-3 after the case was resolved in a settlement, the terms of which are confidential.

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.

At the end of August, I had the privilege of giving a seminar to a group of 25 indigenous leaders from different parts of the Peruvian Amazon as part of a four-week-long intensive training program run by the Escuela Amazónica de Derechos Humanos (Amazon School for Human Rights). The program, started by four alumni from the Amazon School for Human Rights and the Environment and now in its sixth year of operation, aims to strengthen the knowledge and capacity of indigenous leaders to confront extractive industries that affect their communities. I was tasked with presenting a half-day seminar on litigation in U.S. courts as an advocacy strategy in defense of indigenous peoples.

I started the seminar by asking for a show of hands: how many people lived in communities affected by exploration or extraction activities of oil or gas companies? Mining companies? Loggers? Before long, every student had their hand raised—not a single student participating in the training program lived in a community unaffected by encroaching extractives. With the entire Peruvian Amazon divided into different concession areas, the result was not surprising. I then asked for another show of hands: how many of the companies involved were foreign? Again, a large number of hands shot up.

To focus the discussion, I asked the students to imagine that their community was affected by a U.S. oil company operating in their territory and causing damage to the community’s environmental health. The story I told was loosely based on my experience working with the nearby communities of Canaan and Nuevo Sucre, which I wrote about last week, and with the communities in the Corrientes River Basin that are the subject of our case against Occidental Petroleum. As I told the story, I noticed nearly every student nodding their heads in understanding—regardless of the specifics of their personal experience, the elements of the story resonated with the students, and touched upon a deep understanding of what it means to be affected by extractive industry.

Last week, as human rights groups in the United States prepared for the pivotal case, Kiobel v. Royal Dutch Shell, to come before the Supreme Court, activists, NGOs and victims in India were similarly appealing to their Supreme Court for redress in a major corporate human and environmental rights matter.  Many of us will recognize the name Union Carbide Corporation and recall its involvement in the Bhopal plant disaster during which is poisonous gas leak claimed the lives of 5,000 people in 1984.  Few of us are aware, however, that the struggle for justice for those who continued to reside in and around the Bhopal plant is anything but over. 

In 2004, recognizing that groundwater pollution emanating from the Bhopal plant (which was used to manufacture toxic pesticides) presented serious health risks for the neighboring settlements, the Indian Supreme Court ordered that piped water be supplied to fourteen settlements around the Bhopal site affected by groundwater contamination. Despite that order, NGOs working with communities in the area continued to insist that the groundwater contamination problem was not abating; but rather, worsening, and spreading.

Last week, the Indian Institute of Toxicology Research (IITR) in Lucknow, which had collected 26 samples from around the factory, submitted a report to the Indian Supreme Court stating that toxic chemical waste “left behind by Union Carbide in the factory premises and solar ponds created to dump chemical waste of the factory was said to be causing contamination of underground water due to seepage, particularly during rainy season.”

Even worse, the report found that the contamination had spread from the initial fourteen communities of concern to include four more communities, making for eighteen communities in the vicinity of the Bhopal plant where contamination continues to threaten the health and environs of thousands of people. According to the IITR report, the results of the levels of chlorine and nitrate in the samples were found to be higher than permissible.