Blogs

One of the strangest and saddest results from last Tuesday's elections was the approval by Oklahoma voters of an amendment to their state constitution that would prevent Oklahoma courts from considering "the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law."  Rarely does one come across a law so clearly based on religious discrimination and xenophobia.  Or one so deeply at odds with fundamental legal principles.

Thankfully, a federal judge has precluded the amendment from taking effect while the court considers whether the law is unconstitutional.  It clearly is.

The suit challenging the law was brought by Muneer Awad, a Muslim resident of Oklahoma who argued that that law discriminated against Muslims in violation of the First Amendment to the United States Constitution.  He noted, among other things, that the law would preclude an Oklahoma court from probating his will because certain provisions were based upon his religious obligations, even though those provisions were entirely unobjectionable and even though a court would enforce similar provisions in the will of a non-Muslim.  He also noted that the very existence of the law stigmatized Muslims.

In the wake of Burma’s first elections in over 20 years, thousands of refugees are fleeing to Thailand from Burma.  The Burmese military that has ruled my country since 1962 has increased its army to more than 400,000 troops, and have been fighting ethnic armies in the border areas, causing an urgent humanitarian situation.  The news that I have received from friends and colleagues in the Myawaddy and the Three Pagodas Pass areas, where the fighting is happening now, is that women, men, children and elderly people are running across the border into Thailand.  I have seen this scene over and over again in the 22 years since I myself fled from Burma, and my heart is breaking for my people for the suffering they are facing still today.  As I write this, I know that they are terrified.  I know that they do not want to be refugees and they would not leave their home if they felt they had any other choice.  The reports are that up to 20,000 people have already fled—20,000 people who do not know whether they will escape from their country alive; people who do not know if they will have food or shelter for their children and their families; innocent people who didn’t do anything except be born in Burma as ethnic minorities. 

At ERI we’ve been working for more than 15 years to address the underlying problems that lead to humanitarian urgencies like these and we will keep doing that.  But right now, these people need help.  There are many great local organizations who are helping to respond to this terrible situation.  If you would like to help out, Mae Tao Clinic and TBBC are both effectively responding to this situation now:

The Mae Tao Clinic, founded by the renowned Dr. Cynthia Maung, provides free health care to refugees and migrants from Burma.  The clinic is located in Mae Sot, where more than 10,000 refugees have fled in the past day.

Thailand Burma Border Consortium (TBBC) is a consortium of international NGOs providing food, shelter and humanitarian relief to refugees on the Border.

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.

Last month, the International Centre for Environmental Management (ICEM) released an extensive report to help facilitate the Mekong River Commission’s (MRC) preparation of a Strategic Environment Assessment (SEA) of development proposals for mainstream dams in the Lower Mekong Basin.

According to the report, the proposed development is the most important strategic decision ever made by Lower Mekong Basin countries on the use of their shared resources. The ‘big strategic issues’ listed in the report are:

• Power security and generation including revenue, trade and foreign investment;
• Economic development and poverty alleviation;
• Ecosystems integrity and diversity – aquatic, terrestrial, hydrological dynamics and sediment/nutrient transport;
• Fisheries and food security (including agriculture), and
• Social systems - livelihoods and the living cultures of affected communities.

The report states that while there is potential for electricity production from proposed mainstream developments, it is clear that many of the associated risks cannot currently be mitigated, as they would represent ‘a permanent and irreversible loss of environmental, social and economic assets’. Due to these significant risks and the many uncertainties and gaps in knowledge which remain, as well as the shared views of most stakeholders involved in the SEA process on the need for further consultation and study, ICEM recommended a 10 year moratorium on the development of mainstream Mekong dams, with a review every three years.

 The report does not represent the MRC’s official position. The final version of the Basin Development Plan is still pending. The MRC’s current draft Basin Development Plan of July 2010 includes the construction of six mainstream dams on the Mekong above the Lao capital of Vientiane. Moreover, under the Mekong River Agreement of 1995, the decision on development of the Mekong mainstream ultimately rests with the governments of the countries through which the river flows. The recommendation for a moratorium is contrary to the stated positions of the Lao and Cambodian governments, which both want to dam the mainstream of the Mekong in order to sell hydroelectric power to Thailand and Vietnam. The Lao Government has recently notified the MRC, in accordance with the Mekong River Agreement, of its intention to approve construction of a dam at Xayaburi.

I was sad to hear last week that the C-300 Bill was defeated last week in the Canadian Parliament, after over a year of suspense.  What was C-300, you may ask?  Despite its name, it is not a highly explosive form of dynamite, although to hear Canadian mining companies talk about it, you might have thought that it had the potential to singlehandedly devastate Canada’s economy.  Rather, C-300 was a sensible bill introduced by Liberal MP John McKay to require the Canadian government to investigate credible allegations of violations of international human rights and environmental standards by Canadian mining companies, and to withhold public money to companies that have committed abuses.  ERI advocated for C-300 by sending a letter of support when the Bill was in front of the Standing Committee on Foreign Affairs and International Development last year.

A recently leaked report prepared by the Prospectors and Developers Association of Canada shows that – even according to their own estimates – Canadian mining companies have a vastly higher incidence of CSR violations than other countries.  Yet in their (ultimately successful) campaign against C-300, companies and industry associations argued that:

October has been a tough month for the Peruvian Amazon as the government continues to open up the jungle to increased hydrocarbon exploitation, and communities in areas already under exploitation continue to suffer from oil spills and environmental contamination. 

Most recently, more than four thousand inhabitants from communities living along the Marañón River in the northern Peruvian Amazon blocked the river this week in protest of severe contamination caused by an oil spill in June that leaked three hundred barrels of oil into the water.  More than ten thousand people have been affected by this spill, and local communities claim that the company responsible for the spill, Pluspetrol, is indifferent to the quality of life of people where they operate.  Local communities point to the fact that Pluspetrol even stopped supplying clean food, water and medicine to affected communities after just a few days claiming the problem had already been solved, even though recent water quality tests show pollutants clearly exceeding the national environmental standards.      

Similar criticisms of Pluspetrol are echoed by indigenous communities in other areas of the Peruvian Amazon where the company operates.  In Block 1AB, for example, Achuar communities along the Corrientes River continue to witness oil spills and suffer from diseases caused by lead and cadmium poisoning in their waters.  Even today, communities along the Corrientes River continue to use contaminated water for cooking and bathing, and accuse Pluspetrol of negligence, violating their rights, and showing indifference to their wellbeing.

On November 7th, less than 3 weeks from today, Burma will hold its first elections in more than 20 years. I attended a conference today that brought together some of the world's leading experts on the human rights and political situation in Burma, hoping to find some reason to hope that November 7th will provide new opportunities for change in a country that has become so close to my heart. And while experts ranging from the refugee to the Nobel Laureate agreed that the elections will not produce a "new" or "democratic" government in any real sense, I nevertheless left inspired and energized to do even more to bring an end to Burma's suffering.

There was much debate and discussion about how best to do just that. I found it gratifying that there was such broad consensus on issues that EarthRights has been advocating for quite some time; first, that any real change and transition in Burma must consider and prioritize the ethnic people and their particular struggles. The case for "democracy first, ethnic issues second" is no longer being made. Likewise, there was much discussion of the need to provide real incentives to the regime, its neighbors and its allies to push for change. Whether they preferred carrots or sticks, most were in agreement that simple engagement with the regime, without contingencies, would not work. Professor Amartya Sen eloquently ridiculed this notion, dismissing ASEAN's claims to have given the junta an "earful" by stating that "the military butchers in Burma are happy to have their ears full so long as they have their hands free."

We heard about the ongoing atrocities and crimes against humanity that have defined Burma for decades; we heard about China's refusal to push for a Commission of Inquiry; and we heard about ASEAN's reluctance to "interfere" in Burma's sovereign affairs; and all of the interests in preserving the status quo.

So why was I inspired and energized? Because I feel like I got a wakeup call today. It's easy to feel depressed and hopeless when you've been working on Burma issues for more than 15 years, hearing the same stories that you've heard since day one, and not seeing any improvement. But whatever your tactic -- engagement, isolation, or targeted sanctions in the banking sector -- just do something, and do it now, because no matter how long this struggle lasts or how ineffective this year's election are likely to be, action today is as urgent and crucial as ever.

I just read that Nnimmo Bassey, co-founder of the Nigerian NGO Environmental Rights Action (ERA) and the current Chair of Friends of the Earth International (FOEI), has been awarded the Right Livelihood Award for 2010.  As anyone who knows him and his work can attest, this award—often characterized as the “Alternative Nobel Prize”—is richly deserved.  Nnimmo has been working for decades to expose the environmental and human devastation oil production has wreaked in the Niger Delta, and to provide legal and advocacy support to communities affected by oil company operations.  ERI has had the privilege to work with him on a number of occasions.

As Executive Director of ERA, Nnimmo has led the charge in Nigeria to stand up to multinational corporations, by demanding accountability for their pollution of the delicate ecosystems of the Niger Delta and their complicity in human rights abuse by Nigerian security forces.  ERA trains community monitors, campaigns widely on issues like oil spills and gas flaring, and is involved in groundbreaking local and transnational litigation against oil companies – particularly Shell and Chevron – that are active in the region.  Among the organization’s many achievements is a landmark decision from a Federal High Court in Nigeria declaring that Nigeria’s law permitting some forms of gas flaring violates the constitutional guarantee of the right to life.  As Chair of FOEI, Nnimmo is an internationally recognized, leading campaigner for environmental justice, speaking out on climate change, the right to adequate food and water, and biodiversity.  His slogan of “keep the oil in the soil, keep the coal in the hole, keep the tar sand in the land” has become one of the most recognizable rallying cries of the international environmental movement today.

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?

On Monday, October 4, the U.S. Supreme Court issued rulings on petitions to hear five different cases that are highly relevant to efforts to hold corporations legally accountable for their participation in human rights abuses.  The Supreme Court receives thousands of these “petitions for certiorari” each term, and the overwhelming majority are denied. A denial of cert does not indicate agreement with the lower court's ruling, but simply indicates that the Supreme Court will not hear the case.

The Court declined to hear Presbyterian Church of Sudan v. Talisman Energy; ERI had submitted an amicus brief urging the court to take the case. From 1998 until 2003, the Canadian oil company Talisman Energy was a major operator in the oilfields of southern Sudan, which was then in a long-running civil conflict. As part of that conflict, Sudanese government forces and their allies committed well-documented human rights abuses, bombing and strafing villages with gunships, and engaging in raids on civilian populations perceived to be sympathetic to rebel militias. According to this lawsuit, as part of an effort to secure the oilfields, Talisman assisting the Sudanese government forces in their illegal operations, including providing airstrips for government bombers and other forms of support. Talisman is accused of aiding and abetting crimes against humanity, among other things.  The U.S. Court of Appeals for the Second Circuit held that plaintiffs were required to prove that Talisman wanted the abuses to happen—that is, that it was not sufficient for the plaintiffs to prove that Talisman knew it was providing substantial assistance to crimes against humanity.