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Is it really time to weaken the Foreign Corrupt Practices Act?

This guest post comes from Yewande Ajoke Agboola, a law student at University of Maryland School of Law currently interning with our campaigns team in Washington DC.


The Robert Murdoch News of the World police bribery and phone hacking scandal continues to evolve with the arrest and resignation of the company’s former editor this weekend and the resignation of the head of Scotland Yard on Sunday. In addition to resignations, there will be a hearing before British lawmakers investigating the allegations that is set to include Murdoch, his son, and the former editor today. With sordid new details emerging daily (including reports that employees or associates attempted to hack into phone conversations and voice mail of September 11 survivors, victims and their families) British and U.S. law enforcement investigations have begun and an important U.S. law, the Foreign Corrupt Practices Act (FCPA), is receiving renewed attention.

The FCPA makes it illegal for U.S.-listed companies, their employees or agents to make bribes to foreign officials. In this case, the Act may lead to liability for News of the World’s U.S. parent, News Corporation if News of the World was involved in the bribery scheme. The FCPA has not only punished companies that have bribed foreign officials to the tune of around  $2 billion in fines in the last two years, but the threat of criminal fines and penalties has changed business practices for the better around the globe.

Not surprisingly, arguably the best tool the U.S. has to prevent international bribery is under attack from the very same corporations that have been the subject of FCPA investigations, fines, and compliance requirements. Spear-heading the movement to amend the FCPA is the U.S. Chamber of Commerce, which last October released a . . .

Field Notes from Thailand, Part 2: EarthRights in Chiang Mai

Yesterday I shared my experiences from the first day of our recent Donor Inspiration Tour in Thailand. Below, my reflections continue, covering the last three days of the trip.

 


 

While driving back to Chiang Mai from Mae Sot, on the Thai/Burma border, we stopped at Mae Moh Village to learn about villagers’ struggle against a nearby coal-burning power plant. Financed by the Asian Development Bank and completed in 1997 by Electric Generating Authority of Thailand (EGAT), the Mae Moh power plant displaced over 30,000 people, and its sulfur-dioxide emissions led to thousands of severe respiratory infections. We saw first-hand the result of EGAT’S failed involuntary resettlement policy, and talked with local villagers who had lost not only their homes, but also their friends to health-related effects of the plant’s pollution. The villagers remain locked in legal battles and are still awaiting the majority of the $142,000 promised to them by the Thai Provincial Court.

The following morning, after a restful night in Chiang Mai’s Chedi Hotel, we visited the EarthRights School Mekong, where we met the recently arrived class of 2011, played icebreaker games and then gathered in small groups to hear the students’ stories and struggles.  After the previous day’s poignant visit to Mae Moh, our group found solace in the ERSM classrooms, where impassioned and dedicated young leaders build skills to further the fight against such environmental and human rights abuses.

In the afternoon we met with the local staff at ERI’s office, and received presentations on ERI’s Mekong Legal programs, Mekong Alumni Program, and Burma Campaigns.  The presentations helped place ERI’s work in the context of the ever-growing network of earth rights defenders throughout Southeast Asia. 

We concluded the day with another wonderful dinner, this time at the local Whole Earth Restaurant.  The following day was a “day of rest;” . . .

Field Notes from Thailand: A Visit to Mae Sot

I recently returned to Washington DC from northern Thailand, where I coordinated and led our first Donor Inspiration Tour. During the buildup to the trip I was consumed by logistics, including everything from making hotel reservations and food arrangements to finding bug spray and rain ponchos for all our participants.  It took awhile for me to realize that, just like the rest of the participants on our pilot tour, this was my first time ever seeing ERI’s local work in the Mekong Region. I had no idea how much I personally would be impacted by finally meeting my colleagues who work tirelessly to improve the lives of all those in the Mekong Region, and by being exposed to the challenges they face.

The adventure started with a scenic drive through the beautiful rolling mountains of Northern Thailand, to the Thai/Burma border town of Mae Sot. Mae Sot is home to hundreds of thousands of Burmese migrants and refugees, many of them displaced or evicted from their homes to make way for international development projects, or chased away by violent military conflicts inside Burma.

In Mae Sot, our group first met with the incredible Dr. Cynthia Maung, an ethnic Karen who fled Burma in 1989 and established the Mae Tao medical clinic, which treats more than 75,000 undocumented refugees and migrants from Burma every year, many whom would have nowhere else to go for basic medical care.  We met with some of the patients, and had one particularly poignant conversation with a smiling farmer who had lost his leg to a land mine just two days prior. 

Humbled and honored after our morning at Dr. Cynthia’s clinic, the group’s next destination was the Mae La refugee camp, the biggest of its kind in all of Thailand. As we approached the gates, . . .

Kiobel officially an outlier: Yet another US court rules for corporate accountability for human rights abuses

Three days after the D.C. Circuit Court of Appeals ruled that corporations could be sued for human rights abuses, the Seventh Circuit Court of Appeals came to the same conclusion, in a decision in Flomo v. Firestone (PDF).  (Unfortunately, the Seventh Circuit also ruled that the plaintiffs did not show that the abuses in that case, involving child labor on rubber plantations in Liberia, actually violated international law.)

This decision is especially significant because it was written by Judge Richard Posner, a prominent legal scholar who is widely respected but generally considered conservative, and who was appointed to the court by President Reagan.  Unlike the D.C. Circuit's opinion in Exxon Mobil, in which a Bush II appointee dissented from an opinion by two Clinton appointees, Posner's opinion was unanimously supported by two other Republican-appointed judges.

The Firestone opinion expressly labels the Kiobel decisions, which found corporate immunity for human rights abuses, an "outlier," which it now certainly is.  Between Exxon Mobil and Firestone, along with Judge Leval's dissent in Kiobel, the reasoning of the Kiobel majority has been thoroughly dismantled.

So far the U.S. Courts of Appeal for the D.C., Seventh, and Eleventh Circuits have expressly found corporate liability for human rights violations; the Ninth Circuit has assumed such liability and may make an express decision on the issue soon, and it is also being considered by the Fourth Circuit. 

Only the Second Circuit, in Kiobel, has found that corporations cannot be sued.  The district court's decision in Firestone was the only opinion that followed Kiobel, and now it has been reversed. . . .

Yellowstone River spill is business as usual for Big Oil

Last week I vacationed in western Montana, where I was born and raised. Skipping stones on Flathead Lake and walking for miles along the Clark Fork river, I was acutely aware of the dangerously high water levels – higher than I’ve ever seen – which have led to flooding throughout the state this spring and summer. I was oblivious, however, to the environmental tragedy that was unfolding in eastern Montana: 42,000 gallons of crude oil spilling from an Exxon pipeline into the Yellowstone River. I only learned of the spill after I’d returned to work in Washington DC.

Putting it in perspective

Like many, I’m sure, the first thing I did was consult a map, and I heaved a sigh of relief after confirming that Yellowstone National Park, where I’d passed many summer days as a child, was unaffected by the spill.  Then I crunched some numbers, and almost convinced myself that it’s not so bad. After all, 42,000 gallons is only 1000 barrels, a drop in the bucket compared to the 53,000 to 62,000 barrels which spilled into the Gulf of Mexico every day for nearly three months during the Deepwater Horizon disaster of 2010.

While the impact on local Montana fisheries and agriculture won’t be known for some time -- just as we won’t know the true impacts on the Gulf ecosystem of the BP spill for years to come -- it’s encouraging that drinking water has been deemed safe in both the immediate area and further downstream in North Dakota.

So why does this small spill still break my heart? Probably because, even with a small spill on a minor pipeline, Big Oil still can’t seem to get it right.

Business as usual

In the year leading up to the Yellowstone River spill, . . .

U.S. appeals court rules that corporations are not immune from accountability for human rights violations

Today, the U.S. Court of Appeals for the D.C. Circuit, often considered one of the most influential courts of appeals, ruled that corporations can be held liable for violations of international human rights law under the Alien Tort Statute (ATS).  The D.C. Circuit's decision in Doe v. Exxon Mobil, in which ERI filed an amicus brief, repudiates the reasoning of the Second Circuit in the Kiobel case.

The Exxon Mobil decision (PDF) is significant because the D.C. Circuit is the first court of appeals to consider corporate liability under the ATS after the Kiobel decision.  Three other appeals courts--the Fourth Circuit, the Seventh Circuit, and the Ninth Circuit--are currently considering this question in appeals that have already been fully briefed and argued.

Exxon Mobil may influence the other courts considering corporate liability, and--hopefully--signals a trend to isolate Kiobel as an outlier decision.  The decision is well-reasoned and points out numerous holes in Kiobel.

The decision is also significant because the court adopted the knowing, substantial assistance standard for aiding and abetting liability.  The Second Circuit rejected this standard in the Talisman case, opting for a higher "purposeful assistance" standard.  The D.C. Circuit correctly found that both U.S. law and international law have long held abettor liable when they knowingly assist abuses, regardless of whether they shared the perpetrator's purpose.

Finally, the Eleventh Circuit Court of Appeals also recently made an important decision on this subject.  Before Exxon Mobil, the Eleventh Circuit was the only court that had expressly ruled that corporations could be sued under the ATS.  After the Kiobel decision, the Drummond coal company, which is being sued in the Eleventh Circuit, asked that court to reconsider its position.

Yesterday, the Eleventh Circuit rejected Drummond's petition, which effectively means that that court is standing behind its earlier rulings that corporations can be sued for human . . .

Inspiring African Human Rights Lawyers Meet and Plan at Cameroon Conference

Every once in a while, ERI gives me the opportunity to re-energize my work and build new connections by meeting creative, dedicated activists and lawyers who are fighting earth rights abuses in their home countries.  Last week, in Douala, Cameroon, I got a major dose of inspiration while attending an international conference hosted by the European Center for Constitutional and Human Rights (ECCHR) and the Societé Nationale de Justice et Paix du Cameroun, aimed at linking local African human rights defenders with transnational lawyers.

This conference was the second of a series of related gatherings organized by ECCHR (the first was last year, in Bogotá; the next will be somewhere in Asia, next year), on the theory that human rights lawyers and other activists fighting corporate abuses in host countries may benefit from the advice, assistance, and accompaniment of lawyers in the countries where the companies are based.  Over the  course of the conference, I conferred with representatives of communities from several African countries and listened, amazed, at the courage and brilliance that these activists have brought to their fight against multinational corporations.

Sydney, a young lawyer from Zambia (and an excellent dancer), fights to expose the lopsided contracts of a Swiss mining company in an atmosphere of intimidation where the people have no right to information.  Martine, a grass-roots leader from a community in southern Chad, has repeatedly brought attention to the environmental and humanitarian disaster of the Chad-Cameroon pipeline through complaints to the World Bank's Inspection Panel, the Compliance Advisor Ombudsman's office at the International Finance Corporation, and other forums.  In return for her efforts, she has been jailed and forced into hiding repeatedly, once for over two years straight.  Emmanuel, a former combatant from Sierra Leone, runs a leading constitutional and human rights law practice, fights . . .

Supreme Court roundup: no federal nuisance for climate change, and Saher and Saleh will stand

In the past week, the Supreme Court has issued several orders in cases of interest to ERI.  Last Monday, the Court decided American Electric Power v. Connecticut, in which several states sued power companies on a theory of public nuisance under federal law.  Its decision is a loss for the plaintiffs, but one that does not prohibit further climate change litigation.

A longer analysis can be found at the Climate Law Blog; in brief, the court decided that, because the EPA had authority to regulate greenhouse gases, this authority preempted any federal claim for public nuisance.  But the court rejected the idea that the plaintiffs did not have standing to bring the case, or that the case presented a "political question" that could not be litigated.  So further cases that do not involve federal common law claims--including the Connecticut case itself, which also presents state-law nuisance claims--might still proceed.

Today, the Court decided not to hear two significant transnational cases.  In von Saher v. Norton Simon Museum, the Ninth Circuit Court of Appeals struck down a California statute allowing owners of art looted during the Holocaust to file claims in California, reasoning that it interfered with exclusive federal foreign policy powers.  (ERI filed an amicus brief asking the Ninth Circuit to rehear the case.)  In Saleh v. Titan, the D.C. Circuit ruled that a U.S. contractor could not be sued over abuses arising out of the Iraq war, based on a previously unknown "battlefield preemption" doctrine.

A decision not to take a case usually doesn't signify much about the Supreme Court's views on the issues in the case--the justices often wait for additional appellate decisions to clarify the issues.  Notably, in both cases the US government had recommended against the Supreme Court hearing them; in Saher, the government suggested that the case . . .

Protesting the Belo Monte dam

This guest post comes from Yewande Ajoke Agboola, a law student at University of Maryland School of Law currently interning with our campaigns team in Washington DC. At the event described below, Ajoke was accompanied by Jirawat ("Cook") Suriyashotichynagkul, a Thai legal fellow from our Southeast Asia office, currently visiting our US office after attending American University's Washington College of Law's summer session on Environmental Law.


On Monday, Cook and I participated in our very first protest! A couple of blocks from the Brazilian embassy we gathered with other young activists to protest the construction of the Belo Monte dam located on the Xingu River, in the Brazilian Amazon. If completed, it will be the third largest dam in the world and would displace approximately 20,000 indigenous peoples from 18 different ethnic groups, including the Juruna, Xikrín, Arara, Xipaia, Kuruaya, Parakanã, Araweté, and Kayapó.

The fight opposing the Belo Monte dam has been waging since it was first proposed in 1975. In 1989, the plans to build the dam were successfully halted due to the hard work and persistence of indigenous people, local activists, and civil society. Unfortunately, plans to build the dam were placed back on the table in the late 90’s and on June 1st the Brazilian environmental agency gave final approval for the construction of the dam in spite of the recommendation by the Inter-American Commission on Human Rights (IACHR) to suspend the licensing process. The Brazilian Public Prosecutor’s office has called for the immediate suspension of the license, which was issued illegally since many of the conditions required for the license were not met. If the Brazilian government continues to ignore IACHR it could lead to a formal condemnation of Brazil’s actions and possibly referral to the Inter-American . . .

Natural resource projects in conflict areas: In military controlled Burma, will history be repeated?

In early March, the Burmese Army attacked the Shan State Army-North (SSAN) in northern Shan State.  The fighting has since spread throughout northern Shan State.  Previously, in 2009, the Burmese Army attacked the Kokang ethnic group, also in northern Shan State in an area north of the current fighting, leading to tens of thousands of refugees fleeing into China. The current fighting with SSAN has already lasted for three months and will likely continue for some time, and the Burmese Army attack has helped motivate the SSAN and Shan State Army-South (SSAS) to create a close alliance.

Then last week, in Southern Kachin State, close to the border with northern Shan State, the Burmese Army attacked a Kachin Independence Army (KIA) base in Momauk Township. This fighting will also likely continue and may spread throughout the entire KIA controlled area in Southern Kachin State. Recent reports indicate this fighting may be related to two Chinese dam projects in Kachin State that block Burma's rivers and provide electricity to industry in Yunnan, China.

When development projects meet ethnic conflict

On December 1, 2009, a formal agreement was signed with China National Petroleum Corporation (CNPC) and the Myanmar Oil and Gas Enterprise stipulating that the Burmese government will guarantee the safety of the Burma-China onshore crude oil pipeline, which will transport oil from Africa and the Middle East through Arakan State in western Burma and northern Shan State to Yunnan Province in China.  Along with a parallel natural gas pipeline also being constructed and operated by CNPC and its subsidiaries, these projects are increasing the economic and political importance of northern Shan State.

Many ethnic armed groups have been active in northern Shan State and southern Kachin State for many years, including KIA, SSAN, and SSAS. Both the KIA and SSAN have . . .

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