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As Rick noted in his post last week, the big news out of the Supreme Court is that it will decide whether corporations can be sued for human rights violations under the Alien Tort Statute and the Torture Victim Protection Act (TVPA).

The Kiobel case in particular is generating a lot of interest. Last Friday I wrote a guest post for the blog of the American Constitution Society, and on Saturday I joined Terry Collingsworth of International Rights Advocates for a discussion on WZBC radio in Boston (the segment begins at about 12:25 into the audio file).

There is also an ongoing discussion of Kiobel and of Mohamed v. Rajoub, the TVPA case, at SCOTUSblog, the leading website for Supreme Court-watchers. Anyone can join in the discussion, and we'll be checking in periodically as well.

Shortly after arriving in Thailand this summer, I was dispatched to Kho-ha, a small village in southern Thailand’s Songkhla province, to write a legal memorandum regarding a local mine blasting and causation lawsuit.

For the past several years, Khu-ha has been the scene of a struggle between a socially aware community group and a powerful Thai mining company.  Khu-ha is situated at the base of a large lime-stone mountain called Khoa Khu-ha—a mountain that has been one of Khu-ha’s symbols for centuries, as well as the source of fresh stream water for the village and home to lush greenery and a high number of bats that inhabit its many caves.  

Khoa Khu-ha also happens to be located on a large swathe of public land that the Thai government leased a few years ago to the mining company.  Since that time, the village of Khu-ha has not been the same. As soon as the mining company set up shop, it began blowing up Khao Khu-ha with large quantities of dynamite to extract the limestone.  I arrived in Khu-ha to see a mountain with a gaping crater, the entire center blown away.

A community in jeopardy

But the community of Khu-ha’s injuries aren’t limited to the destruction of their precious Khao Khu-ha.  Many people have suffered property damage from the close-range blasts, health problems due to the mine dust, loss of livelihoods from the mine activities, and loss of the general sense of security that they used to have before the massive explosions began launching dust, large stones, and loud booming blasts into the atmosphere on a daily basis.  

One family owns a duck farm, and as soon as the explosions began, their ducks stopped producing eggs—wiping out their family income.  Another family's house is falling apart, its foundation cracked by the constant explosions, and the family now lives in a home of cracked walls, damaged floors, and bursting water pipes.

The Supreme Court today agreed to hear two cases that are critical to our human rights litigation. Both cases, Kiobel v. Royal Dutch Shell, and Mohamad v. Rajoub, consider whether corporations can be sued for human rights abuses. In Kiobel, the question is whether the Alien Tort Statute permits corporations to be sued. A bitterly divided panel of the U.S. Court of Appeals for the Second Circuit held in that case that corporations cannot be sued, no matter how egregious their participation in violations of universally recognized human rights. Three other federal appeals courts have come to the opposite conclusion, finding that corporations can be sued—indeed, two of those decisions came after, and specifically rejected, the holding in Kiobel. ERI had submitted amicus briefs to the Second Circuit in that case.

The question in Mohamad is whether the Torture Victim Protection Act (TVPA) permits suits against organizations, in that case, the Palestinian Authority and the Palestine Liberation Organization, for summary execution and extrajudicial killing. In particular, the question is whether the statutory language, which allows “individuals” to be sued, includes entities or only natural persons. Here again, the Circuits are split on the issue. ERI serves as co-counsel for the Plaintiffs in Bowoto v. Chevron, which raises the question of whether corporations can be sued under the TVPA. We had also asked the Supreme Court to address the issue. Interestingly, however, the Court did not issue any ruling today on that request. We believe the most likely outcome will be that the Court will simply hold onto the case until it decides Mohamad, and then issue a short ruling in Bowoto based on the decision in Mohamad.

Kiobel and Mohamad will be argued together, probably in February or March. A decision is expected by the end of June.

So far, cases brought under the Alien Tort Statute (ATS) in U.S. courts have had little success in demonstrating that environmental harms violate international law, but that could soon change.

This week, plaintiffs in Arias v. Dyncorp, supported by a group of international environmental law scholars, filed a brief in which they made a powerful case for allowing ATS claims for cross-border environmental harms.  While courts have rejected ATS claims for environmental harms within a country's borders, this is the first case to squarely address the issue of transboundary environmental harms—harms to the people and environment of one country resulting from activities occurring within a neighboring country.

The Dyncorp case deals with the cross-border human and environmental effects of herbicidal aerial spray operations conducted as part of Plan Colombia, a joint operation between the U.S. and Colombian governments to eradicate coca plantations within Colombia, including in areas near the Colombia-Ecuador border. The plaintiffs have submitted evidence that Dyncorp, a private company hired by the United States to conduct the spraying, failed to prevent the toxic chemicals it was spraying from reaching people’s communities and properties in Ecuador. The plaintiffs argue that Dyncorp’s actions have caused significant damage to the health, property, environment and livelihoods of thousands of Ecuadorians, and that this amounts to a violation of the international law requirement not to cause environmental harm in another country.

An ATS case requires a violation of a clear, universal and obligatory norm of customary international law – a rule that the international community generally agrees is a part of binding international law. TheDyncorp plaintiffs argue that international law requires states to exercise due diligence to prevent significant cross-border harms. This should be a pretty uncontroversial point; it is supported by multilateral treaties and UN declarations, decisions of the International Court of Justice and international arbitration tribunals, and many commentaries by legal scholars.

The last few weeks have seen a flurry of contradictory events in Burma, and I am trying to make sense of what they mean for the people of my long-suffering country.  As media and policy-makers from around the world rush to embrace these changes, those of us who have seen first-hand the duplicity of Burma's authorities hope for the best, but have come to expect the worst.

Ongoing Military Violence and Alleged Abuses

In June, August, and again in late September of this year, the Tatmadaw (Burmese Armed Forces) launched brutal attacks against the Kachin Independence Army (KIA) and committed horrific crimes against the local ethnic people living in Kachin and northern Shan State. These attacks likely had much to do with securing territory around key Chinese-led energy projects, as well as the ethnic armed groups’ refusal to give in to pressure by the former military regime to become Border Guard Forces.

Then, just this week, a damning report was released by the Kachin Women’s Association of Thailand which tells in graphic detail how the Burmese Army, in the course of their attacks against the KIA, raped and murdered local people in-front of family members, forced local people to serve as human mine sweepers, and committed other awful acts that may  amount to war crimes. 

Civil society groups have been consistent with their advice to deciding governments on the Xayaburi dam project: evaluate all risks before proceeding, and get the people who stand to be affected involved in the process.

With only six weeks until the governments of Cambodia, Lao, Thailand and Vietnam through the Mekong River Commission (MRC) Council jointly decide on the fate of the Xayaburi dam, regional campaign efforts are in full swing to discuss the repercussions of proceeding with the project with the current state of information.

In September, the Mekong Legal Network, an independent group of legal professionals and civil society leaders, discussed the use of national, regional and international legal frameworks to ensure that decisions adequately consider the impacts of the project and allow for greater public participation.

On October 2nd, Pan Nature, an NGO based in Vietnam, held a roundtable discussion on Mekong dams, covering a wide range of topics including energy policies in the region, the involvement of international financial institutions, human security issues, regional development cooperation, and the need for legal and institutional reforms.

This week, a panel discussion on the Xayaburi project was held at the Foreign Correspondents’ Club of Thailand (FCCT). Academics and civil society representatives discussed recent findings on risks faced by people along the river including risks posed by seismic fault lines near the dam, and the roles and duties of key actors, especially the Energy Generating Authority of Thailand (EGAT), project developers, and project financers.

I've been studying the implications of the proposed Xayaburi dam in Lao PDR, which would be the first dam on the mainstream of the Mekong river downstream from China, for regional cooperation among the lower Mekong countries and for the institutions designed to promote such cooperation. Today I had an op-ed on this issue (in Vietnamese) published in a Vietnamese newspaper. The English translation is below.

The most important immediate strategic decision facing Cambodia, Lao, Thailand and Vietnam on their shared Mekong river is whether to build a hydropower dam in Xayaburi province in northen Lao. If the Xayaburi dam proceeds, it will very likely lead to five further dams in northern Lao. The proposed cascade of hydropower dams will provide the Lao government with an income stream and Thailand with electricity; however it will significantly impact the food security of Cambodia and Vietnam downstream. With  regional stability between the four lower Mekong countires at stake, decision-making at regional level should be given a legal and institutional framework to help balance economic infrastructure and environmental protection, food security and energy security, and multilateral cooperation and national sovereignty.

Under the 1995 Mekong Agreement, the four countries agree, “to cooperate and promote the sustainable development, utilization, conservation and management of the Mekong Basin's water and related resources”. However, the Agreement’s legal procedures promoting cooperative decision-making under the auspices of the Mekong River Commission (MRC) are insufficient to carry out the spirit of the Agreement. Two important points need to be made about the legal process for the Xayaburi dam.

This guest post comes from Nina Tandon, a recent graduate of Boston University School of Law and the Fletcher School who is currently a legal fellow in ERI’s office in Washington, DC.

Legal liability for climate change impacts, long a goal of environmental activists, is inching its way onto the radar screen for important players in our world economy – insurance companies and, perhaps, even nation-states. 

Who should pay in climate change lawsuits - the corporations or their insurance?

Earlier this month, the Virginia Supreme Court handed down a decision that freed insurance companies from the responsibility for paying their insured clients for climate change-related damage, particularly when the gas emissions are foreseen consequences of the insured’s intentional acts. In plain English, what this means is that companies that emit greenhouse gases in the regular course of their operations (like electric companies) won’t be able to collect from their insurance companies in the event that they are sued for damage caused by the gas emissions.

The case, AES Corp. v. Steadfast Ins. Co., considered whether the Steadfast Insurance Company is responsible for defending its client, AES, against lawsuits related to AES’s greenhouse gas emissions. In a separate and ongoing case, citizens of Kivalina, Alaska, have sued AES, an electric company, over the harmful environmental effects of AES’ emissions of carbon dioxide and other greenhouse gases. The court held that because the greenhouse gas emissions were a “natural and probable consequence” of AES’ intentional acts, the emissions did not qualify as an “accident” that would be covered under the terms of the insurance agreement between AES and Steadfast. In other words, AES has to defend and pay any damages itself.

Although the state supreme court’s decision isn’t binding on the courts of other states and does not affect federal law, precedent begets precedent in the U.S. legal system, and this case will be looked to for guidance on the issue. Insurance companies may breathe a collective sigh of relief at the ruling, but the door remains open for greenhouse gas emitters to be held liable for the environmental harm caused by their emissions.

The pursuit of redress by a community harmed by a corporation from another country can take a more promising turn when a transnational case is filed, that is, when a forum in the corporation’s home country is sought to hear the case. Transnational cases are the most viable legal option when domestic options are unavailable or ineffective. Often, these cases are brought in the homes of American and European corporations. In August of this year, however, the National Human Rights Commission (NHRC) of Thailand carved its niche in regional human rights promotion when it heard a case about violations in Sre Ambel District, Koh Kong Province, Cambodia.

The case involves sugar land concessions in Cambodia, the process of acquiring which was fraught with violence in the form of land confiscation from locals with strong legal claims to the land, killing of livestock, and threats by armed security groups. The Thai connection is a Thai company (Khon Kaen Sugar Industry Public Company Limited or KSL) that has 70% investment in and effective operational control over the two companies holding the Cambodian concessions (Koh Kong Plantation Co., Ltd. and Koh Kong Sugar Industry Co., Ltd.).

On January 6, 2010, lawyers from the Community Legal Education Center (CLEC) in Cambodia requested the Thai NHRC to investigate the human rights violations in Sre Ambel involving Thai corporation KSL. In August this year, the Thai NHRC stood by its commitment to promote and respect human rights by admitting a supplemental complaint from CLEC, hearing partner NGOs who are actively supporting the CLEC complaint, and calling on representatives of KSL to appear before the Commission. With both sides having presented their case before the Thai NHRC, and with the Commission seeking more information on the matter, full investigation is well underway.

On this first day of the Supreme Court's new term, we have our eye on three pending cert petitions - requests that the Court hear a case - that are critical to our human rights litigation. All three cases, Bowoto v. Chevron (in which ERI serves as co-counsel for the Plaintiffs), Kiobel v. Royal Dutch Shell, and Mohamad v. Rajoub, address the question of whether corporations can be sued for human rights abuses.

Bowoto and Mohamad raise the question of whether corporations can be sued under the Torture Victim Protection Act (TVPA), whereas Kiobel raises the question of whether suits against corporations are permitted under the Alien Tort Statute (ATS). The Courts of Appeals, the federal courts just below the Supreme Court, are divided on both questions, with most holding that the ATS does permit suits against corporations, and most holding that the TVPA does not.

Since all of these petitions were briefed over the summer, we expected that the Court would have decided whether to hear these cases by today. Instead, these cases will be considered by the Court at its next private conference, on October 7.

In one interesting development, however, the Supreme Court today denied Shell's request that, if the Court were to hear Kiobel, it also consider whether the TVPA displaces claims for torture and extrajudicial killing under the ATS. This is great news. If the Court does decide whether or not to hear these cases at its Friday conference, we should know by next Monday morning. So stay tuned!