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Last week, as everyone in my office geared up for yesterday's Kiobel v. Shell Supreme Court argument, I hopped on a plane to Thailand. This morning, I discussed ERI's groundbreaking Alien Tort Statute (ATS) case, Doe v. Unocal, with a remarkable group of 27 young lawyers from inside Burma (Myanmar), who are working to protect rights in their native country. But whether a case like Unocal will be possible in the future will depend on the outcome of Kiobel, so at 1am Thai time I was eagerly reading the argument transcript.

Words on paper obviously don't compare to being in the courtroom for the argument, but I share Rick's optimism about the outcome. In particular, I was surprised by the overreach of Shell's lawyer, Kathleen Sullivan, and the incoherence and inconsistency of the position of the US government.

Sullivan, who's been ridiculed for her insistence at the original Kiobel argument that a corporation that committed piracy - the proverbial "Pirates, Inc." - could not be held responsible, doubled down on her position this time. According to Sullivan, not only could Pirates, Inc., not be sued - but actual pirates could not be sued, either, because the ATS does not extend to any claims outside the United States. And Sullivan affirmed that Shell's position was that the seminal Filartiga case, which began modern US human rights litigation and which the Supreme Court has previously approved, was wrongly decided. She gave no ground on the position that the ATS should not apply to any acts outside the United States, period.

I’m sitting here having a drink with Paul Hoffman, who argued Kiobel in the Supreme Court today, and the usual cast of ATS supporters.  We are reflecting on today’s argument. While you can never predict the outcome of a case from the oral argument, the mood here is much more New Year’s Eve than Irish wake.  

A little context: in February, the court heard oral argument, ostensibly on the question of whether corporations can be sued for complicity in human rights abuses under the Alien Tort Statute. But much of the argument focused on an assertion made by supporters of Shell—that the ATS does not apply to claims arising abroad.  

Since the plaintiffs had no opportunity to address that claim, the court ordered rebriefing and reargument. That argument was today, and we felt that it went well.  The court did not seem to be buying Shell’s position that corporations or “people” that commit human rights abuses in other countries are somehow immune from liability in US Courts.  No one on the court seemed willing to overturn the precedent set in Sosa to find that the ATS does not apply abroad.  Justice Kagan actually read from the Sosa opinion today, reminding us that yesterday’s pirate is the modern day torturer, and our courts should keep the doors open to victims of these kinds of universally condemned human rights abuses.   

Esther Kiobel and the Ogoni plaintiffs reaffirmed the importance of this statute in vindicating human rights and achieving justice.  If, as we believe, this is the highest calling of our nation’s court, the ATS will live to see another day. We’ll find out by June.

Esther Kiobel outside the US Supreme Court

Recently two Mekong Legal Network (MLN) lawyers participated in a civil society consultation with around 60 representatives from civil society organizations and people’s movements at the Civil Society Forum on ASEAN Human Rights Declaration in Manila, Philippines. This meeting was in preparation for the consultation meeting with civil society organizations called by the ASEAN Intergovernmental Commission on Human Rights (AICHR) on September 12, 2012.

The consultation process for the Declaration has been problematic, with the AICHR reluctant to share drafts of the declaration, only inviting certain groups to participate in consultations and also several countries in ASEAN have yet to organize any national consultation with civil society. Despite the challenges, the MLN lawyers and the other representatives of civil society at the Forum drafted their own submission to give to AICHR.

The approach of both the MLN and ERI this year while the Declaration has been drafted has also been to criticize the consultation process but at the same time to try and engage as much as possible. In June, the MLN, ERI and the Sydney Centre for International Law at Sydney University in Australia submitted a joint submission to the AICHR that consisted of a cover letter and suggested draft of the AHRD (see below). Back in April, ERI also submitted to AICHR a joint submission with the Center for International Environmental Law (CIEL) on the linkages between human rights and the environment (below). These joint submissions were influential in the ASEAN civil society organizations' submission thanks to the efforts of the two participating MLN lawyers.

The next step is for the AICHR to provide a draft of the Declaration to ASEAN Foreign Ministers. ERI and the MLN will continue to engage in the drafting process - the fight to have an ASEAN human rights declaration that meets international standards continues!

We've shared a lot of posts lately about Kiobel v. Shell, including several about the perverse moral gymnastics Shell has employed in their defense. When Shell filed a brief in the case, we called out how it misstated the law and demeaned human rights victims, particularly survivors of Apartheid in South Africa. Later, one of our interns noticed a passage in Shell's brief that, frankly, sounded like childish selfishness rather than a legal argument. And last week we shared two posts about Shell's misrepresentation of the position of Professor John Ruggie, a prominent human rights expert and the former U.N. Special Representative on Business & Human Rights. 

We could blog about these issues forever (and we might!), but it will be hard to write anything that cuts to the heart of the matter quite as effectively as the 97 second video below. We posted it today, International Talk Like a Pirate Day, to call attention to Shell's twisted pirate morals.

If you love this video as much as we do, please share it on Facebook and on Twitter. Here's a suggested tweet:

This is how Shell Oil celebrates Talk-Like-A-Pirate Day http://t.co/pxQAjPlR #TLAPD #HumanRights #ShameOnShell

If you want to share it on Facebook, go to our post and share directly from there to make sure we have the largest combined impact.

In early September, frustrated by a negotiation process seemingly going nowhere, members of the Shipibo indigenous community Canaan de Cachiyacu non-violently seized control of the oil wells and pipelines within their territory belonging to the company Maple Gas Corporation del Perú, SP. The community has informed government mediators that they intend to maintain this peaceful protest action—and the resulting suspension of oil activities—until the company and government officials make a genuine commitment to redressing the injuries that they attribute to Maple Gas’s oil activities. Although ERI has no involvement in the shutdown, we have been consulting with the communities and share their frustration.

Canaan oil facilities. Photo courtesy of Ronald Suarez.

Maple Gas, a subsidiary of Maple Energy plc and the recipient of financing from the International Financial Corporation (IFC) of the World Bank, has been operating in oil Lot 31-B—a concession which overlaps with the territory of Canaan—since 1994. During this period of operation, community members from Canaan have complained of human rights and environmental abuses. In particular, the community has suffered from repeated oil spills into community drinking and bathing water, events which they believe have led to contamination of land used for cultivation, depletion of fish-supply, and troubling health problems in the community. We at ERI, partnering with the local and regional indigenous federations, prepared a report in August 2005 verifying claims raised by the community. 

Does anything go in corporate litigation, or does the international human rights system impose some limitations on the arguments and objectives of lawyers and corporate defendants?  Professor John Ruggie asks this question in a recently posted thought piece, concluding that whatever the legal merits of their position in Kiobel, the dishonest tactics and dishonorable goals of Shell and its legal team risk destroying their reputation and dashing society’s expectations of ethical conduct.

Professor Ruggie’s point of departure is the body of work he produced as the former U.N. Special Representative for human rights and business.  Over six years, the Ruggie mandate commissioned several research reports on the legal and social aspects of corporate human rights obligations.  Most prominently, the Special Representative developed a widely accepted framework positing that companies have a responsibility to respect human rights, avoid infringing on the rights of others, and address those harms that they cause or contribute to.  Shell’s lawyer at the Supreme Court, Kathleen Sullivan, cited one of Ruggie’s reports as support for her contention that the United Nations has found that companies do not have human rights obligations.

The problem, as my colleague Rick noted Monday, is that Ruggie and his team never made this statement.  The misuse of his work disturbed the Special Representative so much that he submitted an amicus brief to the Supreme Court to correct the record: Ruggie’s team actually found that while international human rights treaties do not appear to apply directly to companies, there is a steadily expanding web of legal liability that holds corporations accountable for human rights abuses.  And Shell’s misleading statements don’t end there.  Professor Ruggie points out that Shell’s briefs fudge the truth on a number of matters, from the false suggestion that U.S. litigation against companies that abetted the crimes of the apartheid regime in South Africa caused international friction to a bizarre attempt to portray as a victim the oil company that was sued in the U.S. for supporting crimes against humanity in Sudan.

Last Tuesday, Prof. John Ruggie, who served from 2005 to 2011 as the UN Secretary-General’s Special Representative for Business and Human Rights, released an “issues brief” on “Kiobel and Corporate Responsibility.” In it, he rebukes Shell for attempting to eviscerate the ATS based on disingenuous claims. And Ruggie should know. As he explains, “I would not be involved in [Kiobel] at all were it not for the fact that Shell’s initial Supreme Court brief and its lead attorney’s oral argument misconstrued a central finding of a United Nations report I had authored.” Shell had incorrectly suggested to the Court that Ruggie’s work supported the argument that corporations cannot be held liable under international law. Ruggie in fact had “noted evidence of ‘an expanding web of potential corporate liability for international crimes.’”

To correct Shell’s misstatements, Ruggie filed an amicus brief in the second round of Kiobel briefing. But, as Ruggie points out, Shell’s most recent brief, this time arguing that the ATS should not apply to acts abroad, contains similar mischaracterizations. For example, Shell cites the fact that South Africa complained in 2003 about an ATS case brought against American and European corporations that operated there during Apartheid. But it fails to note that after the case was substantially narrowed to only include companies alleged to have made specific contributions to Apartheid, South Africa changed its mind, and supported the litigation.

United Nations officials do not often submit briefs to national courts. But in Kiobel, in addition to Prof. Ruggie’s, the current U.N High Commissioner for Human Rights and current U.N. Special Rapporteur on Torture both submitted briefs in support of the Petitioners, demonstrating, contrary to Shell’s claim, that ATS cases are not in any way forbidden by international law. Their involvement only highlights the importance of Kiobel, and the poverty of the argument that enforcing the most fundamental prohibitions on egregious rights violations somehow violates international standards.

Last week, the students and staff of the EarthRights School Mekong visited Sop Moei village, an ethnic Karen community tucked away deep in the mountains of Mae Hong Son Province at the confluence of the Moei and Salween rivers on the Thai-Burma border. It took us several hours and three different modes of transportation (van, four wheel drive pick-up truck, and boat) to get there. The trip was worth it, despite rain, precarious roads, and mild carsickness: the village is in a gorgeous location and the community welcomed us with open arms.

The Salween is the longest undammed river in Asia, but it is currently being threatened by a proposed series of large dams in China and Burma. The first, the Hatgyi Dam, will be built just 30 kilometers upstream of Sop Moei and would put the village underwater, so our students had a lot to learn about river-based livelihoods and anti-dam advocacy from this community.

This trip was the first chance I've had to watch this group of students learn outside of the classroom, and they flourished. Whether sitting in the local church speaking with community leaders about their activities on the annual International Day of Rivers, hiking through the community forest with the local plant expert in the pouring monsoon rains, or talking late at night with our host sister, all the students seemed to have endless questions and ideas. I could sense they all felt inspired by the strength of the Sop Moei community members, who use their own local knowledge of the River and the forest to defend their livelihoods against proposed dams. Many of our students from the more politically repressive Mekong countries had never seen such a well-organized, united, and strong community, and they told me they were excited to apply these new techniques in their own countries. That's why these field experiences are so invaluable to our students: we can share many tools with them in the classroom, but seeing a well-organized community in action is the best way to learn new strategies and get inspired as a young grassroots leader.

The SEC adopted rules yesterday that require oil, gas and mining companies to disclose the payments they make to foreign governments. These rules implement Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which mandates such disclosures.

For too long, oil companies have made payments to foreign governments in secret. This has made it easy for foreign officials to misuse or outright steal their people’s money, and exceedingly difficult for NGOs, journalists and civil society to track government revenues and root out fraud, waste and corruption. In short, secrecy is a major contributor to the resource curse, which is the paradox that many resource-rich countries that should be well-off actually experience lower growth and far greater poverty than resource-poor countries. Section 1504 is designed to combat the resource curse, as well as to protect investors by ensuring that they have sufficient information to assess political risk.

Industry lobbyists had asked the SEC to create a series of exemptions and other loop holes that were at odds with Congress’ intent to create a real reporting requirement. Those efforts are described in Maia’s post from last week. While we are still in the process of reviewing the full 232 pages of rule text released late yesterday afternoon, based on the description of the rules offered by SEC staffers at yesterday's hearing and a preliminary reading, the SEC at least appears to have rejected most of the extractive industry's attempts to gut the statute. If so, that would be a big victory for those who have long labored to end secret payments and the resource curse, and for millions of people in resource rich nations.

We also note that the fact that the SEC adopted any rules at all is itself a victory for ERI and our client Oxfam America in its suit against the SEC. Yesterday’s rules were adopted 16 months after the statutory deadline imposed by Section 1504. Because the rules were so late, we sued the SEC seeking a court order that the SEC issue the rules that Congress required. We are gratified that the SEC has finally acted.

Whether they are dancing to the “Cha Cha Slide”, laughing until it hurts, or eating delicious Burmese tea leaf salad, the 17 students at HEART seem just like young adults from any other country. You would never guess that most have lived in refugee camps for over half their lives, due to the greed of corporations and the violence of government security forces. You would never know that some have been coerced by the military to do backbreaking labor without any compensation. These human rights abuses and numerous others have become normalized to them, and everyone they know has been affected by the same mistreatment and lived under the same circumstances. All of these students, their parents, and their grandparents have dealt with human rights abuses. Now, these students are dedicated to making certain that their children do not have to suffer as well.

After two months at HEART, I have learned that every student has a story. Though I have studied human rights for three years at university, hearing these stories firsthand has changed how I perceive these abuses. No longer are they words on a page, a paragraph in a report, or an interview in a documentary. They have come to life in the eyes of a friend, the emotion of a speech, and the passion of a presentation. Descriptions of human rights violations are no longer merely words, but are real experiences felt by real people. While the students act like everything is fine most of the time, the truth is that they have been victims of forced labor, discrimination, forced relocation, unequal education opportunities, and more. These students have worked hard and endured a lot to get where they are today.

HEART students painting their school