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In a decision with potentially far-reaching implications, a U.S. court recently rejected the idea that international organizations enjoy absolute immunity from suit in the United States.  The U.S. Court of Appeals for the Third Circuit, one of the appellate courts that sits between the federal trial courts and the Supreme Court, decided in OSS Nokalva, Inc. v. European Space Agency that international organization immunity is subject to the same exceptions as foreign states.  That may sound obscure, but international organizations include institutions such as the World Bank, and some of the immunity exceptions could open up these institutions to significant new levels of accountability.

A bit of background here: In 1945, early in the development of the modern international system, the U.S. enacted the International Organizations Immunities Act (IOIA).  The IOIA was passed, in part, to reassure the United Nations and other new global agencies that it was safe for them to have staff (and often headquarters) in the United States.  The law states that such organizations will have the "same immunity" from suit as foreign states.

But what does that mean?  The traditional practice was that foreign states, like diplomats, had absolute immunity from lawsuits.  The only exception was if the U.S. government told the court not to recognize immunity; because the immunity of foreign states (also known as "foreign sovereign immunity") is designed to protect U.S. foreign policy, the U.S. government can decide that it's not necessary in a particular case.

By 1945, that practice was already changing, in two ways.  First, the U.S. government was more frequently waiving foreign sovereign immunity; second, in cases where the U.S. government said nothing, the courts were developing general rules based on the government's past practice.  Finally, in 1976, Congress decided to enact these rules in a new statute, the Foreign Sovereign Immunities Act (FSIA), which ended the case-by-case evaluation of immunity by the U.S. government.  The FSIA creates a general rule of immunity as well as a series of well-defined exceptions that the courts can apply.

Protection of the Mekong River has been an important part of ERI’s work for several years now, especially through the EarthRights School Mekong and the Mekong Legal Network (MLN).  Recently, I’ve been looking at the Environmental Impact Assessment (EIA) for the proposed Xayaburi Hydropower Project in northwestern Laos, the first of the 11 proposed dam projects in the lower Mekong basin—and what it says about prospects for protecting the Mekong.

First, some background.  The Mekong River is integral to the lives of over 25 million people who live along its corridor in Thailand, Laos, Cambodia and Vietnam.  Up to $1.5 billion dollars of fish are harvested from its southern waters annually, and more than one million people rely significantly or completely on this protein as a source of nutrition.  The river is also a major source of sediment for the fertile fields of the Mekong delta, a means of navigation for thousands of locals, traders, industries and tourists, and is the home of over 1,000 species of fish and other aquatic life, including the endangered Irrawaddy dolphin and the Giant Mekong Catfish.  It is the lifeblood of much of Southeast Asia.

As the Mekong River Commission (MRC) now meets with select “stakeholders” in Vientiane, Laos to discuss the ongoing development of large-scale hydropower projects on the Mekong, the livelihoods of the millions of stakeholders across the region, those who remain most vulnerable to the decisions now being made, lie in the balance.  This meeting is part of a process officially begun in 1995 at the signing of the Mekong Agreement, and now being led by representatives of the aforementioned countries who make up the MRC.  It is a process founded on noble principles: the recognition of the importance of a healthy and vibrant Mekong ecosystem; respect for the unique interests each country has in the sustainable development of Mekong resources; the need for practical and effective implementation of agreed-upon policies; and cooperation towards the realization of these goals.  However, 15 years on, the MRC and the countries it represents are at risk of compromising these principles, and allowing medium-term profit to cloak what will likely be long-term disaster.

I recently watched Josh Fox's documentary Gasland, which received a Special Jury Prize earlier this year when it premiered at the Sundance Film Festival. Beautifully directed and narrated, the film is a compelling and disturbing exposé on the practice of hydraulic fracturing, or “fracking,” a natural gas drilling technique popular in the United States which relies on the injection of large volumes of chemical cocktails into the earth. Fox argues that portions of these chemicals are finding their way into water sources across the country, with terrible consequences for public health and livelihoods.

Water from a kitchen sink catches fire in Dimock, Pennsylvania

Early in the film, Fox travels to Dimock, Pennsylvania, to meet families who are suffering from a variety of health issues and who are able to light their kitchen tap water on fire. He narrates the following:

I was starting to compile a list of the things that happened in Dimock: water trouble, health problems, hazardous explosive conditions inside the house, destruction of land, lack of confidence in state regulatory commissions, a feeling of having been deceived, a feeling of powerlessness, dead or sick animals, the difficulty of obtaining good information about gas drilling, and the idea that there is a cover up taking place.

In other words, a total loss of normal life.

Who knows if they're right? I don't. It's all speculation... but these citizens certainly felt as if they had been wronged and that there was no one for them to complain to.

Later, as he treks through Colorado, Wyoming, Utah and Texas and discovers further water and health anomalies, Fox becomes increasingly certain that fracking is creating environmental health hazards, and I can't say I disagree.

In June, we shared written first impressions from one new student at the EarthRights School Mekong. Below are additional first impressions from the rest of the class of 2010, in their own words.

Several months ago, we learned that the ruler of Equatorial Guinea, Obiang Nguema Mbasogo had donated millions of dollars to the United Nations cultural arm, UNESCO, to fund a prize in honor of . . . .himself. A gracious gesture for a man who rules one of the world’s poorest, most corrupt, and resource-rich countries. Could the millions he offered to donate be better used to fund poverty alleviation or education in Equatorial Guinea (EG)? How about the billions of dollars his government receives annually from oil sales? And should the UN’s cultural division honor this autocrat with a prize in his name? What message does that send to those working for good governance, human rights, and sustainable development?

After much lobbying and public outcry, the Executive Board of the United Nations Educational, Scientific and Cultural Organization (UNESCO) announced in June that they were delaying the UNESCO-Obiang Nguema Mbasogo International Prize for Research in the Life Sciences in order to allow for additional consultation. It is now becoming clear that UNESCO will decide in October whether to cancel the prize.

Today, over 90 organizations, including EarthRights Internation, wrote to UNESCO to urge its Executive Board members to permanently cancel the Obiang Prize. This letter continues a campaign by NGOs, civil society organizations, academics, Nobel Prize winners, and government officials who are protesting the award and have called for its cancellation.

The people of EG live in dire poverty while Obiang and his cohorts live a life of luxury. While the GDP for the nation has climbed dramatically since oil was discovered in the mid-1990s and its wealth per capita is now $30,000, these numbers grossly misrepresent the country, as the majority of citizens live on less than a dollar a day. Instead of the oil revenues benefiting the citizens of EG, the money is spent on the luxurious lifestyles of Obiang and his family and friends.

Last Thursday evening, I received an exciting and unexpected phone call.  “Did you hear?  Today the UN General Assembly adopted a Resolution that recognizes access to water and sanitation as a fundamental human right!!!  And not just any water—clean, safe, accessible and affordable drinking water!”  The voice belonged to Barbara Olshansky, my human rights law school professor who had spent much of the past year explaining to my classmates and I how the formal recognition of water as a human right, at the international and domestic level, would be an effective means of granting people greater access to water. 

Professor Olshansky, my classmates and I recently travelled to Namibia, where we had the opportunity to meet some of the world’s experts on water access.  I wondered what the news would mean to them; they were not at the UN meeting. In fact, they are probably still waiting in the line where we met.

That's right, the true experts on the significance and meaning of the human right to access water are those who have been denied it.  They are the men, women, and children who must wait in long lines, every day, just to get the water they need to survive. In most of the informal settlements across Namibia, water is only available at prepaid water control points, and people must have a prepaid water card with sufficient water credits just to fill a water bottle.  They carry containers of all different sizes, but the largest appeared to hold a maximum volume of 20 liters—an amount that would have to supply an entire household’s water supply, for drinking, cooking, cleaning, and bathing.

Namibian children wait in line at a water meter

A week after India’s Prime Minister Manmohan Singh welcomed the Burmese dictator Than Shwe on an official state visit, the world’s largest democracy has come under fire at home and abroad for its controversial foreign policy toward the military-ruled country.

Now you can add to the list of detractors one of the world’s most respected economists. At a high profile symposium on education in New Delhi yesterday, the Nobel prize-winning Indian economist Amartya Sen publicly opposed his country’s Burma strategy. “I do not agree with your policy on Burma,” Sen said, directing his criticism at the Prime Minister himself, who was in attendance. “In a democratic country like India, I can say this to the Prime Minister,” he added.  

Indian officials argue that their policy of active engagement in Burma’s controversial oil and gas sector will improve India’s energy security while also contribute to Burma’s fledgling economy. The problem is that’s simply not true.

Last week, I posted an article on the Huffington Post arguing that India’s Burma policy is misnamed, misguided, and ineffective. The policy, called “pragmatic,” is instead an extension of “political realism.” It harkens back to a colder era, if you will, and ironically works against India’s own interests while contributing to authoritarianism in Burma. This is compounded by its near complete silence on human rights.

I argue that India should engage Burma more pragmatically, and in my HuffPo article I proposed some recommendations for how New Delhi might go about doing that.

Last week, the Thai state-owned energy company PTTEP signed a deal to purchase gas from Burma's offshore Zawtika gas field, setting the stage for a third source of Burmese gas to Thailand, in addition to the controversial Yadana and Yetagun pipelines.

My colleagues and I have repeatedly documented forced labor, killings, and other abuses in the Yadana pipeline region, and shown that these abuses are directly linked to the oil companies operating the project, including PTTEP. More recently, we've also documented the massive revenues going to the Burmese regime from the project, with the junta secretly depositing up to US $4.6 billion since 1998 in offshore bank accounts.

PTTEP's new deal will require a new pipeline, expected to be operational by 2013. We've already documented the company's activity in the remote ethnic areas of the proposed pipeline in Burma, and we're concerned. What will PTTEP do different this time around? We have no evidence suggesting the company is conducting a proper human rights impact assessment, and if they've conducted an environmental impact assessment (EIA), they haven't published it, and that's a problem. Pipelines within Thailand require EIAs. Will PTTEP voluntarily extend that into Burma, according to best practice, or simply capitalize off Burma's weak regulations to save a buck?

The timing of this deal raises questions, too. The Burmese regime now has its sights set on developing nukes. Thailand is the country that stands to lose the most from the risks posed by a nuclear capable Burma, yet it's
gearing up to line the pockets of the regime with even more gas dollars. Thailand wants gas to expand its economy, but could it be so shortsighted as to dismiss the impacts of multi-billion dollar revenues in Burma?

Yesterday a Maryland federal court issued a decision allowing a case alleging torture by a US contractor in Iraq to proceed.  There's a lot of good analysis in the opinion, but I'd like to focus on a particularly strange argument made by the defendants--that foreign residents simply cannot sue in US courts, especially when they are citizens of countries that the United States is at war with.  (Put aside for the moment the suggestion that all Iraqis are "enemies.")  This argument was rightly rejected by the court, which found that the plaintiffs "possess the 'privilege of litigation' in United States courts."  But why was it even raised?

Except in very limited circumstances, no one had ever really questioned that aliens can sue in US courts.  Nearly every transnational case that has been litigated has involved aliens, mostly residing outside the US, suing in US courts.  Last year, however, a federal court in Washington, DC, dismissed a case against Exxon Mobil because, the judge found, there was a "general rule that non-resident aliens lack standing to sue in United States courts."  (The notion of "standing" can be a vexing legal doctrine, but basically it encompasses the idea that the plaintiff is the right person to bring the suit, because the plaintiff has suffered harm and because the law intended to benefit that type of plaintiff.)  There is, of course, no such general rule; nonresident aliens have been suing in US courts for centuries, as the Exxon Mobil plaintiffs pointed out.  So how could the judge get it so wrong?

A few weeks ago I was shocked to learn that the Kimberley Process Certification Scheme (KP), an international body that oversees the trade of diamonds, had reported that Zimbabwe had met the minimum conditions required to lift the ban on the export of its diamonds. The report recommended that Zimbabwe be allowed to resume diamond exports from the controversial Marange area.  “We must move quickly to include Zimbabwe’s rough diamonds in the legitimate diamond pipeline because they are legitimate” said Moti Ganz, the president of the International Diamond Manufacturers Association, at the World Diamond Congress in St Petersburg.

KP monitor, Abby Chikane, issued this recommendation despite having witnessed serious human rights abuses and rampant smuggling during his own investigation of the Marange diamond field. If anything, this is a cruel reminder of the ease with which commercial interests trump human rights – particularly in the extractive industries. Notwithstanding,  several human rights organizations have found the report disturbing and have since exerted pressure on the KP to conduct an independent investigation into the credibility of Chikane’s report. Last month, Human Rights Watch issued Deliberate Chaos: Ongoing Human Rights Abuses in the Marange Diamond Fields of Zimbabwe, documenting the rampant killings, forced labor, torture and harassments taking place at the Marange field. According to the report, Zimbabwe's armed forces still control most of the fields.  Corruption is rife, and smuggling of Marange diamonds by soldiers in the field is prolific. The diamonds continue to benefit a few senior people in the government and their accomplices rather than the people of Zimbabwe as a whole.