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UN Special Rapporteur draws attention to extractive industries and indigenous rights

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

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Another court allows corporate liability for human rights abuses

On Monday, I wrote about the big news that the Supreme Court will hear the Kiobel case, about whether corporations may be sued for complicity in human rights abuses under the Alien Tort Statute (ATS).

Shortly thereafter, in the Sarei v. Rio Tinto case, the Ninth Circuit Court of Appeals became the third federal appeals court to reject Kiobel, and the fourth appeals court to find that corporations may be sued under the ATS.

The Rio Tinto decision was issued by an "en banc" panel of the Ninth Circuit, which basically means a lot more judges (eleven) than the standard three-judge panel, often used in particularly significant cases. A majority of the court not only found that corporations could be sued, but also rejected a number of other arguments commonly made by corporate defendants (such as that the case interferes with US foreign policy).

As Chimene Kietner blogged over at opinio juris, the decision "reads like a virtual catalog of contested questions surrounding the interpretation and application of" the ATS. Chimene's post may be of interest to those who want more info about the specific issues in play but don't want to read 166 pages of opinions. (The majority opinion is only about 50 pages, though!)

Why would the Ninth Circuit act now when it's already known that the Supreme Court will address the Kiobel issue later this year? Impossible to say for sure, but the judges might have wanted to try to influence the high court.

ERI filed two amicus briefs in the Rio Tinto case, which concerns abuses allegedly associated with a mine in Bougainville, Papua New Guinea. . . .

New EU Rule Requires European Oil, Gas, Mining, and Timber Companies to Publish What They Pay

The global movement for transparency in the management of natural resource revenues took a major step forward today as the European Union announced a new directive requiring extractive companies to report their payments to governments on a project-by-project basis.  This EU initiative picks up the momentum started when the U.S. Congress enacted disclosure requirements as part of the Dodd-Frank Wall Street Reform Act.  It also decisively rejects the oil industry’s attempts to block the rising tide of transparency.

The new proposals, which are contained in amendments to the EU’s Accounting  and Transparency Directive, are crucial for a number of reasons.  First, they extend revenue disclosure rules to Europe; between U.S. and European regulators, such rules will now apply to the vast majority of extractive companies in the world.  A new, binding global standard for revenue transparency has effectively been set.

Second, the Directive takes up many of the aspects of the Dodd-Frank provisions that are most crucial to transparency advocates but were hotly opposed by companies.  Specifically, it requires companies to disclose their payments for each extractive project, rather than lumping all their payments together for each country. A group of major oil and mining companies, including Shell, Total, BHP Billiton, and Anglo American, wrote a letter to EU officials shortly before the rules were released, strongly objecting to project reporting.  

The same companies have pushed the U.S. Securities and Exchange Commission (SEC), which is responsible for implementing revenue transparency laws in the U.S., to undermine its Congressional mandate to collect and publish project-level disclosures.  As I wrote last month, while companies argue that this information is sensitive and would be overly burdensome to report, . . .

All eyes on corporate liability at the Supreme Court

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.

Mining case is a landmark victory for community rights in Thailand

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 . . .

Can corporations be sued for human rights abuses? In 2012, Supreme Court will decide

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 . . .

Can you sue in U.S. courts over cross-border environmental harm?

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 . . .

Burma in the headlines: what does it all mean?

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. 

 

Chinese Dam Project Suspended

In the middle of these attacks against the KIA, Thein Sein – Burma’s so-called “civilian” president who ended decades of military service to run in the deeply flawed 2010 election – declared a unilateral suspension of the controversial Chinese-led Myitsone Dam. The suspension followed an unprecedented nation-wide grassroots campaign against the dam, which promised to devastate the ecology of . . .

Civil society abuzz as Xayaburi decision looms

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.

The decision to table the Xayaburi hydropower project for consideration at ministerial level in the MRC Council meeting set for November 22, 2011 was made last April, when the four MRC countries failed to achieve a consensus on how to proceed with the project. While Lao insisted there . . .

Xayaburi dam poses test for Mekong regional cooperation

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.

First, Lao is legally obliged to provide the downsteam countries all relevant data sufficient to make an informed decision about the project. The MRC-commissioned Strategic Environmental Assessment (SEA) report and the Xayaburi Prior Consultation Final Report both confirm that the uncertainties . . .

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