A Reprieve on the Mekong: Xayaburi Dam Project Delayed . . . For Now

I’m pleased to report that the Mekong River and the millions of people dependent upon it received an important reprieve this week. The Thai, Cambodian and Vietnamese government administrators in the Joint Committee of the Mekong River Commission (MRC) recommended that a decision on whether to proceed with the Xayaburi hydropower dam in northern Laos should be delayed until relevant government Ministers gather at the MRC Council meeting in October this year.

In October last year, a Strategic Environmental Assessment (SEA) report on the mainstream dams, commissioned by the MRC, recommended a ten year deferment in decision-making over the Mekong mainstream dams, including the Xayaburi Dam, partly due to the huge environmental and social risks of the project and weak institutional and legal frameworks. The Mekong Legal Network (MLN) had made a submission to the MRC on the inadequacies of the national legal frameworks for hydropower projects in the region.

The ERI Mekong School Alumni and MLN have continued to monitor the project closely. Alumni representatives attended public consultations in Thailand and Cambodia facilitated by the MRC earlier this year. The Laos government refused to hold a consultation, saying that the consultation conducted under the EIA was sufficient, even though it is widely acknowledged this was inadequate. The Laos government refused to release the project documents and EIA before any of the consultations.

ERI also facilitated workshops on mainstream dams for the alumni and MLN in Cambodia and Laos to fill in the information gaps left by the MRC consultation process. Alumni representatives signed Save the Mekong campaign letters to MRC Secretariat about the inadequacy of the consultation process.

Although the delay is an important victory for the environment and affected communities, it is only temporary, and if the Laos and Thai governments decide to proceed with construction, . . .

Abusive Arbitration: U.S. Mining Company Sues Peru Over Environmental Requirements

On April 7th, the Doe Run Company, a U.S. mining and smelting corporation, initiated an international arbitration against Peru, claiming that Peru treated it unfairly by imposing and enforcing environmental remediation requirements at the company's notoriously polluting smelting facility at La Oroya, which has been described as one of the most polluted places on Earth. This appears to be the latest in a series of moves by extractive companies to retaliate against countries that dare to apply environmental and other public interest regulations, in the guise of upholding free trade agreements.

The Doe Run saga is complex, but the two-sentence backstory is that after taking over a heavily polluted facility from a state-owned entity, the company defaulted on its environmental obligations (called “PAMA” in Peru) repeatedly over the course of twelve years of operation, requiring the Peruvian government to grant extensions and, eventually, impose itself as a preferred creditor to ensure environmental performance. In 2009, the company decided to close the smelter, citing financial problems related to the global recession and Peru’s environmenal demands, and now faces bankruptcy proceedings in front of a Peruvian regulatory agency.

Railway Station in La Oroya, PeruRailway Station in La Oroya, Peru

Rather than cleaning up its act and paying its creditors, however, Doe Run has struck back by hauling the Peruvian government in front of an arbitral tribunal and claiming that Peru has violated the U.S.-Peru Free Trade Agreement. Among other allegations, the company insists that Peru treated it unfairly and inequitably and devalued its investment by imposing environmental obligations and positioning itself as one the company's creditors through the PAMA process. Moreover, it now insists that Peru is required to assume liability for all . . .

Millions of Barrels of Oil, So Few Lessons Learned

This week marks the one year anniversary of the worst oil spill in U.S. history.  On April 20, 2010, a blow-out at BP’s Macondo well killed eleven workers on Transocean’s Deepwater Horizon and led to months of uninterrupted oil flowing into the Gulf of Mexico, damaging ecosystems and livelihoods in ways we still don’t understand. Our friend and colleague Antonia Juhasz has a new book on the Gulf oil spill that just came out, Black Tide: The Devastating Impact of the Gulf Oil Spill, and you can hear her talk about it recently on Democracy Now.

With the anniversary upon us, and in the middle of the season when oil companies convene shareholders for their annual meetings, it seems like a good time to take stock of corporate obstacles to sustainable energy policy.

The Problem

A A It is now clear that climate change is real and man-made (or, at least, man-accelerated), and that it will produce drastic and severe consequences for our future on the planet.  Meanwhile, fossil fuel sources are running out and extraction of non-renewable resources is getting more dangerous.  Deep-water drilling (still no technologies available to prevent blow-outs like BP’s), drilling in the arctic, hydro-fracking (massive injection of toxic chemicals and greenhouse gas releases), tar sands (possibly the most destructive energy extraction process)… the list of bad energy options the oil and gas industry presents goes on and on.

Aside: Check out these "Terribly Beautiful" aerial photographs of the by-products of non-renewable extractive industries.

Of course, even non-carbon energy alternatives have significant risks. Major dams like the planned Monte Belo . . .

Yet again, Big Oil is silencing shareholders’ voices

I’ll bet you think that one of the perks of being a shareholder in a corporation is the power to express your displeasure about corporate policies and vote to replace directors if you’re unsatisfied with their performance.  If you’re under this impression, then you’re legally right.  But judging by recent actions at the big oil companies, you’re only right in practice if you express opinions with which top management agrees and – heavens forbid – you’re not trying to speak for the people who are dispossessed and impoverished by the corporation’s operations.

Until today, I thought Chevron was the only oil company that had gone beyond the now-familiar practice of ignoring the complaints of communities affected by its operations, and had become so arrogant as to suppress the dissenting views of its own shareholders.  (Last year in May, representatives of communities around the world were turned away, threatened, and in some cases arrested despite holding valid proxies executed by Chevron shareholders that authorized them to enter the meeting, speak to the assembled shareholders, and vote on their behalf.)

Then I read that BP, too, had excluded shareholders from its annual meeting this week. The article does not explicitly say which shareholders were excluded, noting only: 

Outside the Excel convention center in the east of London, about 30 people, including fishermen from the United States, gathered to protest BP’s role in the oil spill. They banged drums and held up banners. Some shareholders were refused entry to the meeting, Mr. Svanberg said, because they appeared to have a plan to disrupt the meeting. 

But the implication is clear – shareholders who may have intended to speak out about BP’s responsibility for the Deepwater Horizon spill last summer were denied their right of entry on suspicion that they were attending . . .

Do we really need investor-state arbitration? Australia says no

Investor-state arbitration (ISA) used to be a pretty obscure field.  Many free trade agreements include provisions that allow foreign investors to take a government to international arbitration if they're treated unfairly, such as if their property is expropriated.

Recently, however, multinational corporations have tried to use ISA to challenge environmental and human rights policies of developing countries, such as mining companies' attack on South Africa's black empowerment laws, Chevron's claim against the Ecuadorian government for alleged unfair treatment in environmental litigation in the Amazon, and Pacific Rim Mining's suit against El Salvador for refusing to issue exploration permits.

Now the Australian government has announced that it will no longer seek to include ISA clauses in trade and investment agreements.  Apparently the government is worried that its own policies might be at risk from challenges by foreign investors, but its statement expressly warns Australian businesses that "they will need to make their own assessments" about the risks of investing abroad.

I hope this is the start of a trend, as governments realize that giving corporations the right to challenge public policy in an international arbitration forum is maybe not such a good idea.

Before ISA, such cases could only be pursued internationally if the investor's claims were "espoused" by their own government--for example, the U.S. government could challenge Ecuador's actions if they thought Chevron was being treated unfairly, but Chevron could not.  This meant that such challenges were uncommon and they were subject to international political constraints.

The argument for ISA is that giving investors direct enforcement rights increases their confidence in the system, which in turn increases foreign investment. But an Australian government analysis also found no sound economic reasons for these clauses, raising questions about . . .

Taking Inspiration from the 2011 Goldman Prize winners

On Wednesday night, I attended the premier annual event of the DC environmental activist community: the Goldman Prize ceremony, held each year to recognize a half-dozen grassroots environmental heroes selected from hundreds of nominees from around the world. As always, hearing the recipients share the stories of their lives, and their transformations into eco-warriors, brought tears to my eyes – sometimes of joy and sometimes of sorrow. Each and every one of them gave me a poignant reminder of the power of people!

Below are their stories.

Dmitry Lisityn, from Sakhalin Island in Siberia, was honored for the work he’s done to protect the ecology of that island, and the populations, human and otherwise, who call the island and its surrounding waters home. The island is being threatened by massive oil development and logging. Although he started out thinking that “regular people” like himself don’t make a difference, he became the leader of Sakhalin Environment Watch and a recognized expert on regional environmental protection. His collaboration with indigenous villagers, fishermen, scientists, government leaders, and industry representatives have led to the cancellation of a planned underwater pipeline which would have disrupted critical Western Pacific gray whale habitat, put constraints on logging, in order to protect one of the oldest populations of spawning salmon in the world, and increased the rights and benefits enjoyed by the island’s indigenous population.

Raoul Du Toit, from Zimbabwe, spoke of how he didn’t give up in his efforts to protect the very endangered black rhino population, despite major political and economic setbacks -- not to mention threats from poachers armed with submachine guns and backed by international criminal gangs. The numbers of black rhinos in Zimbabwe and neighboring countries, once decimated by the obscenely lucrative but unsustainable sale of rhino horns, have stabilized due . . .

NSA Reveals Details of Chiquita’s Paramilitary Security Payments in Colombia

Chiquita paid paramilitaries for security services and intelligence on guerilla groups, with full knowledge of who and what they were funding and with the intention of receiving their support services, according to a trove of documents recently made public by the the National Security Archive.  Many of these documents, which the NSA – cooperating with the Public Justice Clinic at the George Washington University School of Law – obtained through Freedom of Information Act (FOIA) requests, directly contradict claims Chiquita has made that it paid the AUC paramilitaries under duress and received no benefits from those payments.

The NSA plays a critical role in US civil society: it uses governmental public disclosure laws to their fullest effect, to shed light on dark spots in national and world history and expose truths that the US government would often prefer to remain hidden.  To obtain these documents, NSA’s Mike Evans and his GW student partners tangled with several federal agencies, including the State Department, the Department of Justice, and the FBI – and in some cases took them to federal court – in order to prevent them from witholding public documents.  As a result of their efforts, we now have a valuable window into the role of US businesses in the ebbs and flows of the Colombian civil war over the past two decades.  Moreover, the plaintiffs in ERI’s case against Chiquita have new ammunition to prove that Chiquita was knowingly and intentionally complicit in state-sponsored human rights abuse by Colombian paramilitaries.

Inter-American Human Rights Commission requests suspension of Amazon dam

In February I noted that a Brazilian court had suspended plans to build the Belo Monte dam, a giant project in the heart of the Amazon.  Back in November, several groups also filed a complaint with the Inter-American Commission on Human Rights charging that the dam would violate indigenous rights and other human rights protections.  This week, we learned that the Inter-American Commission issued a preliminary order requesting that Brazil suspend the project; our partner Amazon Watch issued a press release yesterday.

The Inter-American Commission is one of the two major human rights bodies of the Organizational of American States (OAS).  The Inter-American Commission has jurisdiction over all OAS states--which includes nearly every country in the Western hemisphere--but its decisions are not legally binding.  Many countries do take the Commission's findings seriously, but only the Inter-American Court of Human Rights can issue binding judgments.

On the Belo Monte dam, the Commission issued what are known as "precautionary measures."  Essentially, they are asking Brazil to take steps to avoid causing harm to the petitioners before the Commission can have a full hearing on the case.  We hope that Brazil follows the Commission's guidance; mega-dams projects should not be rushed into, especially in a region as ecologically fragile and with such human significance as the Amazon.

Ruggie's Guiding Principles Fail to Address Major Questions of Obligations and Accountability

In my post yesterday, I covered what I like about Prof. Ruggie's Guiding Principles.  In this post, I'll talk about what's not covered by the GPs – what I consider to be a missed opportunity to clarify central legal principles on the application of the international human rights regime to corporations.  It’s important to note that Ruggie is not claiming that the GPs are a statement of legal principles, but I would have liked to see them reflect the current law.

In the Ruggie framework, states have a duty to protect human rights and to remedy their violations, while businesses have a moral “responsibility” and expectation to respect human rights.  So far, so good, and pretty non-controversial.  But Prof. Ruggie leaves open – and  studiously avoids – the questions that would potentially incur the opposition of the companies whose consensus he has sought.

Does international law impose human rights obligations (as opposed to just expectations) on companies, in addition to states?  How far does the state duty to protect and provide remedies extend, and could a state violate its international legal obligations by failing to enact laws or declining to reduce barriers to accessing such remedies?  What is the status of the requirement of due diligence – is it a legal defense, a proactive duty, or simply a good idea?  And would international law ever require, rather than permit, a state to exercise extraterritorial jurisdiction over its own companies’ actions?

I can think of a number or reasons why the GPs decline to address these questions.  First, the “pragmatic approach” counsels against tackling such issues – why chase after ephemeral and controversial points of international law when there are concrete gains to be made now through win-win, collaborative efforts?

Second, Prof. Ruggie was not given the mandate to develop . . .

A Blueprint for Responsible Conduct: What I Like About Ruggie's Guiding Principles

In December, when Prof. John Ruggie, the UN Secretary-General’s Special Representative for Business and Human Rights, came out with a discussion draft of his Guiding Principles – the culmination of six years of work on the question of what and how human rights obligations apply to businesses – much of civil society was dissatisfied. 

Ruggie was blasted for taking retrograde stances on a number of issues, most prominently extraterritorial jurisdiction (my colleagues and I believe that in at least some cases, States have an obligation to regulate and provide remedies for the actions of their companies abroad; Ruggie identified no such principle).  He did make clear that his principles were not a legal document, but we believed it would be better if the GPs reflected the law.

Now that his final version has been publicly released, I see some major positive developments.  Knowing all the consultation and cogitation that went into them, I think the GPs are a pretty impressive document.  They set out a plausible framework for dividing responsibility between governments and businesses on human rights issues, provide commonsense suggestions on the range of grievance mechanisms and remedies that are necessary to effectively address human rights impacts, and assist companies to construct due diligence regimes. 

The very fact that Prof. Ruggie was able to get companies and governments to sit down and discuss these issues rationally – let alone to agree on doing something about them – is a tremendous achievement.  I don’t necessarily agree with all his conclusions, but then again, I’m sure the companies don’t, either.  Hopefully, the GPs represent the start of a process and not an end in themselves.

In particular, Prof. Ruggie has consistently and forcefully pushed the envelope on corporations' internal responsibilities, i.e., the things they should do to in terms of corporate . . .