Blogs

Last week I blogged about recent advances in the construction of the China-Burma crude oil and natural gas pipelines made public during Burmese leader Than Shwe’s state visit to Beijing to meet with Chinese President Hu Jintao, Premier Wen Jiabao, and other leaders.

Although only a week has passed since posting that blog, some interesting new information about China-Burma relations has been published, including an article by the Irrawaddy that claims that during Than Shwe’s trip to Beijing, China agreed to provide Burma with a US$ 4.2 billion interest-free loan.  The article quotes an official from Burma’s Ministry of National Planning and Economic Development as saying “the 30-year loan is intended to help fund mass hydropower projects, road construction, railway development and information technology development.”  If this report is correct, the size of this loan is several times larger than previous ones China has given Burma, and raises serious concerns about the human rights violations – like forced labor, land confiscation, and livelihood destruction – that local communities will have to confront if such ample funding for the construction of new energy and infrastructure development projects is made available.

Also released this past week was a new report from International Crisis Group (ICG) on China’s relationship with Burma, which highlights Chinese investment, the ethnic politics in border areas, and Burma’s upcoming elections.  This report identifies several Chinese-backed energy development and infrastructure projects, including the China-Burma crude oil and natural gas pipelines, and illuminates the social, political and economic complexities of China’s growing investment in Burma.  Particularly of interest in this report are the interviews from along the China-Burma border which give perspective to China’s dual engagement with ethnic cease-fire groups and the government in Naypyidaw, as well as the sometimes divergent interests of the governments of neighboring Yunnan Province and distant Beijing.

Last Friday, I posted about an unfortunate decision from the Second Circuit Court of Appeals that corporations cannot be sued under the Alien Tort Statute (ATS) for human rights abuses. That post caught fire, bringing in thousands of new readers and a number of comments on our site, as well as on Reddit.com and other social media sites. In this follow up post, I want to address some comments our readers have made, including questions about the legal implications of the ruling and the general sense of anger at the runaway train of corporate power.

What is the scope and impact of this ruling?

The ruling in Kiobel v. Royal Dutch Petroleum applies to the ATS, a U.S. federal statute that allows lawsuits for violations of international law--including serious human rights abuses.  The court, one of thirteen federal appellate courts, found that corporations could not be sued under the ATS.  At the moment, this ruling only applies directly in the Second Circuit, which covers the states of New York, Connecticut, and Vermont.  Another appeals court, the Eleventh Circuit, previously ruled that corporations could be sued under the ATS; its ruling applies in Florida, Georgia, and Alabama.  Everywhere else--including the vast Ninth Circuit, where our case against Unocal was litigated--is still up for grabs.  The danger, however, is that Kiobel will be influential to other courts considering this question.

Will it stand?

There are two ways in which the Kiobel decision might be overturned.  This decision was by a three-judge panel of the Second Circuit, and it is possible (though rare) for the court to rehear the case "en banc," in front of all ten active judges of the court.  The plaintiffs will probably request a rehearing soon, and ERI will probably support this request.  Predicting en banc results is always difficult.  The court is evenly divided between appointees of Democratic and Republican presidents, but party affiliation is not very predictive--Judge Cabranes, who wrote Kiobel, was a Clinton appointee, and Judge Hall, who previously wrote an opinion stating his understanding that "corporate actors are subject to liability under the" ATS, was appointed by George W. Bush.

My friends and colleagues keep asking me how I feel about the Kiobel decision that came down last week in the Second Circuit, which decided that corporations can’t be sued under the Alien Tort Statute.  Oddly, I can’t seem to get too upset about it – probably because I just got back from a conference in Bogotá hosted by the German human rights organization ECCHR and the Colectivo de Abogados Jose Alvear Restrepo (a Colombian lawyers’ collective) that gave me new hope for the ability of lawyers and activists from the North and South to do really high-quality work together.  For quite awhile now, I’ve been thinking about how human rights defenders and advocates can pool resources, share expertise, and generally give each other a hand, and it’s exciting to see these sorts of collaborations beginning to materialize.

The topic of the conference was “Strategic Transnational Human Rights Litigation against Corporations,” and the focus was on a handful of case studies involving labor rights, environmental and social damage, violent human rights abuses, and privatization of basic resources.  Over the course of three days, a small number of lawyers and other advocates from the U.S. and Europe sat down with local attorneys and community representatives from a dozen from all over Latin America – from Mexico to Argentina and Brazil to Peru – to develop actual strategies for elevating these cases to the international stage.  We talked about litigation in home countries (i.e., the countries where multinational companies are based), complaints using international mechanisms like the OECD specific instance procedure and the Inter-American Commission on Human Rights, and effective communications and advocacy plans.

On September 10th, Burmese leader Senior General Than Shwe met with Chinese President Hu Jintao and Premier Wen Jiabao in Beijing.  During the high profile meetings, leaders from both countries affirmed the strength of the brotherly paukphaw relations China and Burma share and discussed the importance of maintaining peace along their borders, as well as ways to increase economic and trade exchanges, especially in the development of energy projects.

The following day, state-owned China National Petroleum Corporation (CNPC) held an opening ceremony to begin construction on the Chinese portion of two controversial crude oil and natural gas pipelines linking Burma’s Arakan coast with China’s southwestern city of Kunming.  These pipelines will transport natural gas from Burma’s lucrative offshore Shwe project to refineries in China, as well as China’s imports of crude oil from the Middle East, Africa and South America, thereby facilitating China’s access to overseas energy resources and promoting western China’s economic and industrial development.    

The announcement that CNPC was beginning construction on the Chinese portion of these pipelines comes less than three months after construction started on the Burmese portion of the pipelines.  That last announcement in June also coincided with Chinese Premier Wen Jiabao’s official visit to Burma to celebrate the 60^th anniversary of Sino-Burmese relations. 

Once completed, these pipelines will stretch from the coastal town of Kyaukpyu in Arakan State to the town of Shweli on the China border in Shan State before continuing on to other Chinese cities for processing.  And, while these oil and gas pipelines are a huge endeavor, they are also part of a larger project to establish a trade and transportation corridor linking China with the Indian Ocean.  New roads are being built and railroad tracks being laid to improve transportation between Kyaukpyu and the China border to provide China with secure access to the Indian Ocean.    

"So long as they incorporate (or act in the form of a trust), businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot's political opponents, or engage in piracy – all without civil liability to victims." 

In the words of Judge Pierre Leval, who disagreed with his colleagues, that is the result of today's ruling by a panel of the U.S. Court of Appeals for the Second Circuit, which concluded that corporations could not be sued for human rights abuses under the Alien Tort Statute (ATS).  The ATS generally allows suits in federal courts for violations of international law - but, according to the Second Circuit, not if the violation was committed by a corporation.

I recently returned to Thailand from Peru, where I had the opportunity to travel deep into the Amazon to the remote cities of Pucallpa and Iquitos.  For two weeks I, and several colleagues from our Washington DC office, met with Peruvian lawyers, anthropologists, activists, and leaders of Amazonian indigenous federations to listen to their stories, learn about their work, and gain a deeper understanding of Peru’s indigenous, human rights and environmental movements. 

Sunset over the Rio Ucayali

I've had lifelong ties with Peru and its people, but every visit still teaches me something new and deepens my connection with the country.  I’ve learned about the intricate cosmologies of some of the region’s diverse ethnic groups, and I've seen firsthand the cultural, environmental and health effects the oil, gas, mining and logging industries have had on Amazonian communities.  During this latest visit I was especially impressed by how committed the communities and civil society of the Amazon region are to preserving local knowledge, traditions and beliefs while pursuing sustainable and equitable models of development. 

I was also impressed by the optimism we encountered, especially because my previous trip to Peru had been quite different.  Last year I was in Lima when communities throughout the Peruvian Amazon rose up to protest new laws that aimed to open up the region to increased mining, oil, natural gas and hydropower development, with little benefit to local communities.  I had been waiting to travel to Iquitos for two months while these communities sent a strong message to the rest of the country by cutting it off from their jungle resources by barricading roads, blocking waterways, and shutting down an oil pipeline.  These protests culminated in the violent clash between police and indigenous protesters on a highway in Bagua Province which resulted in numerous death and injuries on both sides, and shocked the rest of the country.

International investment law doesn't usually get much attention--in comparison to human rights law or international environmental law (or even international trade law), it tends to be fairly dry stuff.  But in recent years multinational corporations have started to use investment law to challenge environmental and human rights regulation and liability.  Treaties such as the North American Free Trade Agreement (NAFTA), the Central American Free Trade Agreement (CAFTA), and various bilateral investment treaties (BITs) give multinational corporations from one member countries various privileges when they invest in another country.  Most significantly, these corporations can take the foreign government to binding international arbitration, where a panel of arbitrators decides whether the government has violated the treaty by expropriating the corporation's property or denying it equal treatment.

This guest post is the second in a two part series from Nikki Reisch, a second year law student at New York University School of Law, who recently completed a legal internship in ERI's Washington DC office. The first part, published on Tuesday, was "Extractive Industries Transparency and Human Rights: Why Opening the Books is Just the Beginning of the Story."

In the last twelve months, we’ve seen a spate of new initiatives aimed at mandating revenue and contract transparency in the extractive industries. The trend is encouraging, and reflects the culmination of years of campaigning on the part of coalitions like Publish What You Pay (PWYP), of which ERI is an active member. PWYP has long argued that voluntary reporting of payments, through industry-backed programs like the Extractive Industries Transparency Initiative, is not enough; many of the countries with the worst resource-related problems like Burma and Sudan simply refuse to participate. In order to capture all companies, in all countries, reporting requirements must be compulsory and widespread. In July of this year, the U.S. Congress took a step in that direction by passing the Dodd-Frank Wall Street Reform and Consumer Protection Act which includes an Energy Security Through Transparency (ESTT) provision requiring oil, gas and mining companies listed with the U.S. Securities Exchange Commission to disclose information about payments they make to foreign governments for the extraction of resources.

This guest post is the first in a two part series from Nikki Reisch, a second year law student at New York University School of Law, who recently completed a legal internship in ERI's Washington DC office. Part two is "Taking Stock of Extractive Industry Transparency Trends."

Have you ever wondered why there’s so much fuss about transparency in the oil, gas and mining sectors, and why a human rights and environmental organization like ERI cares about the money that flows from extractive industries? As we applaud the significant strides accomplished by transparency advocates this year, it’s useful to recall why opening the books is so important, and why disclosure alone will never be enough to prevent the abuses, conflict, and inequalities that are frequently associated with oil, gas and mineral extraction.

This summer, Steve Grove of YouTube and Sameer Padania of WITNESS have been writing a series of posts on the official YouTube blog about the use of online video in human rights advocacy. Yesterday, they invited their readers to offer feedback via Google Moderator on three key questions faced by human rights advocates:

• How can uploaders balance privacy concerns with the need for wider exposure?
• How can we stay alert to human rights footage without getting de-sensitized to it?
• Does human rights content online require some kind of special status?

None of these questions are specific to YouTube or even video – they are important questions for every website, print publication, brochure, annual report, photograph, or video produced by human rights defenders.

EarthRights School Burma students on a field trip in northern Thailand