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When I sat down  in Torts on my first day of law school, I had no way of knowing that I was sitting next to a future Harvard Law School Professor.  I mean, he looked smart enough, and he definitely took better notes than I did, but I wouldn’t have guessed that he was headed there at that time.  But now, 18 years after we both made it through Torts (and so much more!) I was not all all surprised when Tyler Giannini told me that he had been appointed as a clinical law professor at one of our nation’s most prestigious institutions.

Harvard is lucky to have one of ERI’s founders and former co-directors, who together with Ka Hsaw Wa and myself, was idealistic enough to think that the most marginalized and oppressed people in the world should enjoy basic human rights, and that even the most powerful governments and corporations should be subject to the rule of law.  Tyler gave everything of himself to EarthRights for a decade,  from the courtroom against Unocal to the classrooms of our EarthRights Schools.  The organization wouldn’t be the success it is today without Tyler’s vision and audacity—two of the many qualitites that Tyler will bring to the students and faculty of Harvard Law School. 

Tyler joined HLS as a clinical advocacy fellow in 2004, was appointed as a lecturer on law in 2006, and became director of the International Human Rights Clinic in 2007.  Tyler and ERI have continued to collaborate on a variety of projects, including a recent amicus brief to the U.S. Supreme Court.  We’ve benefited from the excellent law students and graduates that Tyler has continued to send our way; communities around the world have benefited from Tyler’s tireless commitment to their rights.  Needless to say, we at . . .

Last week, Rick blogged about the recent passage of an amendment to Oklahoma's state constitution which "would prevent Oklahoma courts from considering 'the legal precepts of . . . international law or Sharia Law.'" In brief, Rick dismissed the amendment as unconstitutional and impractical, and I agree.

However, one commentor wrote that "Sharia is unconstitutional" and gave examples of "beheading apostates and homosexuals and stoning adulterers to death," examples which would be of grave concern were they actually plausible. Obviously, as a human rights organization, EarthRights International is opposed to beheadings and stonings, and I thought I should clarify what is and isn't at stake here, as there are a great many misconceptions about what the Oklahoma provision actually does, what Sharia is, and how Sharia might be used, without controversy, by courts in the United States.

First, as Rick noted, the Oklahoma provision applies to all foreign and international law.  This paints with a much broader brush than simply targeting Sharia law, and excluding international law (which is often binding on states) is clearly problematic.

Second is the question of what Sharia is.  Incredibly, the Oklahoma provision does not define it; although the ballot question states that Sharia is "Islamic law," based on "the Koran and the teaching of Mohammed"--which is vague enough already--the actual constitutional amendment does not define it at all.  While Sharia is generally accepted to be derived from the teachings of Mohammed, scholars do not agree on its content, and Sharia as applied by different Islamic states is not uniform. 

More importantly, however, Sharia goes far beyond beheadings and stonings; Sharia is a complete system of laws, including family law, contract law, estate law, etc.  In some countries, Sharia is the primary form of law applied; most countries with a significant Muslim population apply a . . .

Last Friday we filed a rather unusual motion in the Second Circuit Court of Appeals, the federal court that decided the Kiobel case two months ago.  (Kiobel was the decision that held that corporations cannot be sued for human rights abuses under the Alien Tort Statute.)  Seven groups of legal scholars and NGOs filed amicus briefs arguing that the case should be re-heard, supporting the plaintiffs' petition for rehearing.  Unfortunately, all of these amicus briefs were rejected--by the same judges who decided Kiobel.  So we filed a motion asking the full Court of Appeals to reconsider whether the briefs can be filed.

What's going on here?  It may only be of interest to lawyers, but it's important to the way our courts function.  Federal appeals courts hear cases in panels of three judges; Kiobel was decided by two judges, with the third judge disagreeing.  A panel decision can be reconsidered by the court sitting "en banc," which means roughly "as a whole"--all of the active judges of the court get together to hear the case again.  In the Second Circuit, that's ten judges right now.  (There are three vacancies, which President Obama has nominated candidates for; "senior" judges, a semi-retired status that still allows them to hear cases, generally are not included in the "en banc" court.)  When a party files a petition for rehearing, it gets circulated to all of the judges, who can then vote to decide to whether the case will be re-heard "en banc."

The problem here is that only the original three judges decide whether to accept the amicus briefs, and they can prevent the other judges from seeing them--the amicus briefs only get circulated to all of the judges if the judges who wrote . . .

Here’s an item of great interest, which gives me some hope that the legal fight for corporate accountability for human rights abuses is going global.  Last week, a group of human rights and legal organizations filed a motion in a court in Québec, asking to be certified as representatives of a class of villagers from Kilwa, D.R. Congo, in a lawsuit against Anvil Mining over the company’s complicity in a 2004 massacre by the Congolese military.  ERI has discussed this case with the international organizations involved, including Global Witness and Rights and Accountability in Development (RAID), for the past two years, and encouraged the victims’ advocates to file in Canada.  We’ve provided some advice on international legal issues, but I’m especially pleased that the Canadian Centre for International Justice (CCIJ), in cooperation with these NGOs and private lawyers, has taken this on and has now broken new ground in filing this case.  Now, after a long struggle to find a forum in which to have their case heard, the victims of the Kilwa massacre may finally get their day in court.

One day in 2004, a group of about six or seven poorly-armed men arrived in Kilwa, a small town in a remote part of the Katanga region of the DRC, and quickly took control in the name of an otherwise unknown rebel group.  They informed the managers of the Dikulushi copper mine, owned and operated by a subsidiary of Anvil, that they did not intend to disturb mining operations, although by controlling Kilwa, they had the means to cut off the only port by which copper ores could be transported to the outside world.  Anvil’s management apparently reacted by calling the Congolese military, transporting a division of over one hundred soldiers from the provincial capital to Kilwa . . .

Last month, Earth Rights School Burma celebrated the graduation of its 2009-2010 class. The graduation marked the conclusion of a ten-month training program, which culminated in the students conducting field research - sometimes at great personal risk - on human rights and environmental issues in their home communities in Burma. On their return to the EarthRights School, located in Thailand, the students reflected on their research, the challenges they faced and the lessons they learned.

What Students Learned From Their Field Research Experience

I have learned many different things from my interviewees during my field session such as [. . .] from interviewee’s life in home village how they [were] suffering [. . . ] from SPDC military operation. [. . .] They had to do portering, force labor when SPDC's soldiers came to their village. Then, they were suspicious by SPDC that they contacted and supported to Karenni Army. Therefore, some villagers were arrested and beaten by SPDC's soldiers many times.

(The State Peace and Development Council, or SPDC, is the official name of Burma's military regime).

What I learned from my field trip is that research is not easy as I thought. [. . .] Patient, flexibility and perseverance are important for researching something. Moreover, we need preparation in interviewing. I understood that one source is not enough to prove the information. We need to corroborate the facts. I learned how to approach to get the correct information. My analysis skill and logical thinking was improved from my work. I was confident more than before.

I have learnt many things especially; I came to know the situation of my Kachin people and the need of the community development for my people. Another thing is I feel that I am improving in interview skill and got a

. . .

I just had lunch with my friends—most of whom have been my friends for at least 15 years, and who became my friends because of our common work for human rights and environmental justice.  We came together today to remember Ken Saro-Wiwa and the Ogoni 9, who were hanged 15 years ago today in Nigeria for their nonviolent protest against Shell’s destruction of their homeland.

This was a different kind of lunch meeting than we’re accustomed to in DC, home of the quintessential power lunch. Honestly, how often do seasoned activists and NGO leaders from EarthRights International, Oil Change International, Amnesty International, Sierra Club and so many other groups sit around the same table specifically to NOT network, strategize and plan?  Of course, a little of that snuck in…  But mostly we spent our time sharing memories of how these unbelievable executions changed us.  It was a rare time to reflect, remember, mourn, and yes, celebrate, the work that we do and remember the life and legacy of a person whose work is still so important and relevant in today’s world.

Like us, communities, the media, organizations, and friends around the world gathered to remember the executions in different ways.  Not all of these events were as cost-free as ours.  Ogoni in Port Harcourt held a candlelight vigil as they do every year on this day.  The Nigerian mobile police reportedly opened fire on this peaceful assembly.  

In the UK, Remember Saro-Wiwa has launched a “Fifteen Years On” podcast which you can listen to or download for free.

The Guardian UK published newly disclosed documents from ERI’s lawsuit Wiwa v. Shell, exposing Shell’s post-execution PR strategy to rebrand its image in the face of international outrage, and threats of boycotts and legal action.

EarthRights . . .

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.

While there is little doubt that the "Sharia" provision is unconstitutional, other aspects of the law are equally problematic. For example, Oklahoma seems to have prohibited its courts from considering treaties of the United States, even though the Supremacy Clause of the U.S. Constitution makes such treaties "the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."  The amendment also ignores the fact that courts consider the law of other nations every day. Any time that a dispute arises at least partially in another country, a court hearing that dispute must decide whether the law of that country or the . . .

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 . . .

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.

Unfortunately, the U.S. delegation, led by two stalwarts of the human rights movement—Harold Koh (currently . . .

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 . . .