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Last week Bobbie and I had the opportunity to observe the filing of a case in the Administrative Court of Thailand by affected villagers downstream from the Xayaburi dam in Laos. We were informed by the villagers’ lawyer, Ms. Sor. Rattanamanee Polkla, that there would be 80 villagers submitting the lawsuit, travelling to Bangkok from the eight Mekong River provinces of Thailand. These 80 villagers were armed with a further 1,000 signatures of Thai villagers supporting the case. Last year the Save the Mekong Coalition submitted a petition, signed by over 20,000 people against the damming of the Mekong, to the Thai Prime Minister (Thailand will purchase 95% of the electricity produced by the dam). The villagers’ case will challenge the decision of the National Energy Policy Council and Thai Cabinet to approve the Power Purchase Agreement between the Electricity Generating Authority of Thailand (EGAT) and the Xayaburi Power Company Limited, the project’s operator. The villagers argue that this approval was given without conducting an environmental and health impact assessment of the dam in Thailand along with public consultation, both of which are required under the Thai Constitution for activities that will significantly affect a community’s natural environment.

The villagers started their campaign with a walking rally to the Administrative court at 10 in the morning. During the march, they carried placards with strong anti-dam messages. They also loudly called for justice from the Government. The march was conducted peacefully, and in fact staff and security helped the villagers find space in front of the court to worship the spirits of the Mekong before filing.

There was a moment of silence to start the worship ceremony. The villagers kneeled down; paid their respects to the Mekong and chanted together. The words of the chant were about how the “Mother River” played a vital role in their lives and this is why they respected the Mekong. At the end, they cast a fishing net in front of the court, a symbol of their traditional livelihoods that depend on fish, which are at risk with the construction of the dam.

EarthRights International (ERI), along with lawyers from Goulston & Storrs, filed a motion for summary judgment yesterday on behalf of Oxfam America in its case against the U.S. Securities & Exchange Commission (SEC). When Congress enacted Section 1504 of the Dodd-Frank Wall Street Reform Act in July 2010, it gave the SEC 270 days to issue final rules governing the disclosure of payments made by extractive companies. Section 1504, and the implementing rules, are critical to combating the corruption and waste that too often results when such payments remain secret.

Although the SEC published proposed rules to implement Section 1504 on December 15, 2010, it has missed the statutory deadline to adopt final binding rules. When Oxfam America filed its lawsuit alleging undue delay in issuing the rules in May 2012, the SEC  was more than a year past that deadline. The motion filed yesterday asks the court to recognize that the SEC illegally withheld promulgation of the rules as a matter of law.

The SEC is scheduled to vote on final rules next Wednesday, August 22. If they do not adopt rules at that time, ERI is confident that, as a result of our suit, the Court will order them to do so.

If they do adopt rules, our focus will shift to whether those rules implement Congress’ intent. After Section 1504 was passed and the SEC solicited public comments, a debate of sorts emerged among the commenters from NGOs, business, academics, and other experts. Industry has sought to eviscerate the law by advocating for rules with a variety of loopholes. ERI, along with Oxfam America, fellow members of the Publish What You Pay (PWYP) coalition, and other NGOs, has advocated for the adoption of rules that:

Last week, Shell filed its latest brief in the Kiobel case, taking a position that would immunize corporations that commit human rights violations abroad from liability in the United States. While Brad and Jonathan have already posted their initial reactions to the brief, I was struck most by this passage on pages 51 and 52:

[A]pplication of the ATS and federal common law to foreign conduct risks adverse impacts upon the Nation’s commercial interests. Contrary to Petitioners’ assertion that there have been relatively few corporate ATS cases since Filartiga, there have in fact been more than 115 such cases. And ATS suits involving foreign conduct frequently entail invasive discovery that could coerce settlements that have no relation to the prospect of success on the ultimate merits. Settlement pressure is further exacerbated by the high-profile nature of ATS suits, which provides a platform for plaintiffs or their proxies to engage in aggressive public-relations campaigns that inflict significant reputational harm on corporate defendants. Indeed, the mere filing of an ATS suit can have an adverse effect on a company’s stock price and debt rating. (internal citations and quotations omitted).

My initial reaction to most of this reasoning was simply: so what? While Shell’s brief is noticeably lacking in evidence supporting these statements, the more important point is that they have no bearing on whether or not the ATS applies to human rights violations committed abroad.

Sure, major corporations may find it inconvenient to defend against allegations that they were complicit in crimes against humanity. But that is not a reason to find that they are immune. Major corporations, and the United States itself, are frequently the subject of lawsuits that may have adverse commercial implications—and we don’t deny plaintiffs the opportunity for redress because of the potential or actual costs. If we don’t deny victims a forum for even ordinary claims, why would we do so when the crimes at issue are the very worst kinds imaginable?

On July 25th, the Inter-American Court of Human Rights issued a long awaited sentence in the case of Sarayaku v. Ecuador, affirming the rule that indigenous communities throughout the Americas must be consulted before their governments approve investment projects that affect their use and enjoyment of their traditional lands.

A bit about the case: in 1996, Ecuador’s state oil firm Petroecuador signed a prospecting deal led by Argentina’s Compañía General de Compustibles (CGC) in partnership with US-based ConocoPhillips/Burlington Resources. Much of this land covered the ancestral land of the Kichwa community of Sarayaku, located deep in the southeast Ecuadorian Amazon.  Although protests and domestic legal actions stalled oil exploitation until 2010, the oil consortium had already done much damage during the “exploration” phase. By 2003, CGC had drilled 467 boreholes around the town packed with 1,433 kg of high-impact explosives, felled trees, destroyed a sacred site, and ruined several water sources. In 2003 the Sarayaku community took the case to the Inter-American Commission on Human Rights, who then presented the case to the Court in 2006 after Ecuador ignored the Commission’s 2004 precautionary measures requiring the operations to be suspended.

In its decision, the Inter-American Court concluded that Ecuador breached Sarayaku’s right to prior consultation, communal property, and cultural identity when it approved the prospecting project, and CGC’s activities had threatened their right to life and personal integrity. The Court also ruled that Ecuador violated Sarayaku’s right to judicial protection because the domestic judicial resources used by the Sarayaku in Ecuador were ineffective at remedying these human rights violations.  The Court ordered Ecuador to pay damages for material and nonmaterial harm, clear the explosives, make a public act recognizing their international responsibility for the harms caused, and completely overhaul the state’s consultation processes.  Adding to the requirements of free, previous, and informed consent already established in the 2007 case of Saramaka v. Suriname, the Inter-American Court stated that consultation must be carried out in good faith in order to achieve agreement or consent between parties, and consultation of indigenous communities must be conducted in the first planning stages of development projects that will affect their territory.

Shell has fired its latest round in the Kiobel case in an attempt to create immunity for itself and all other companies that abet grave violations of universally recognized human rights.  In a brief filed with the Supreme Court on Wednesday, the oil giant makes arguments that range from misleading to false to offensive, all with the aim of proving that in no circumstances may U.S. courts consider claims under the Alien Tort Statute (ATS) involving human rights abuses that took place abroad.  If Shell’s proposed rule had been law for the last twenty years, Holocaust survivors, victims of international terrorism, and persecuted religious groups would have found U.S. courts closed to their claims and would not have been able to obtain compensation and justice.

Even a brief skim reveals classic tactics employed by the company’s high-paid lawyers to draw attention from the absurdity of the position they are defending.  Most offensively, the company includes some assertions that demean human rights victims and the strategies they select in their struggle for justice.  For example, Shell points to a letter from South Africa protesting ATS litigation but ignores a subsequent letter from the South African Minister of Justice commending the ATS as a helpful part of the country’s recovery from apartheid. 

Later, Shell implies that an ATS lawsuit pushed Talisman – a Canadian company accused of assisting the Sudanese army to attack communities surrounding its operations – to withdraw from Sudan, only to be replaced by a Chinese company that was even more compliant with the government’s genocidal wishes.  Here, Shell suggests that it’s no problem for Western companies to actively assist in crimes against humanity and also ignores the much larger campaign including victims and investors alike that convinced Talisman it was better off doing business in locations other than what is now the volatile border between North and South Sudan.

I’ve been working in the human rights and corporate accountability field long enough that I’m rarely surprised by the shenanigans large corporations will pull to maximize their profits, to greenwash their brand, and to avoid responsibility for the negative impacts of their work. But last night I read the brief that Shell had just filed with the Supreme Court, arguing that it should be immune from suit for participating in human rights abuses against protestors in Nigeria, and I found myself fuming when I encountered this passage:

“South Africa, for example, explained that it had ‘enacted legislation … [that] deliberately avoided a “victors’ justice” approach to the crimes of apartheid and chose instead one based on confession and absolution, informed by the principles of reconciliation, reconstruction, reparation and goodwill.’”

My colleague, Jonathan, has written a preliminary legal analysis of Shell's brief, including a response to this particular section, but what I want to talk about, in this post, is the perverse moral gymnastics that Shell had to employ to reference South Africa’s Truth & Reconciliation Commission – one of the most noble-intentioned undertakings in human history – in defense of their own disregard for justice and human rights. My path to the human rights movement began in South Africa in 2002, studying the reconciliation process, so this is a topic very dear to my heart.

In early 2006, during my second trip to South Africa, I spent an afternoon in a dark, dusty, crowded classroom in the township of Gugulethu, outside of Cape Town, speaking with two remarkable people: Linda Biehl, an American mother whose daughter, Amy, was murdered in the closing days of Apartheid, and Ntobeko Peni, one of Amy’s convicted killers. Years earlier, when the four convicts applied for amnesty through the Truth & Reconciliation Commission (TRC), Linda and her husband had attended the hearing, supported the amnesty request, and, upon their release, shaken hands with their daughter’s killers.

This alone would be an astounding story of forgiveness and compassion, but by the time I met them in Guguletu, Ntobeko and Linda’s story had become even more improbable: they were working side by side, daily, at the Amy Biehl Foundation, running youth empowerment programs and educating visitors on restorative justice.

From the outside, recent political and economic reforms in Myanmar/Burma seem to be opening up a society that has languished under military rule for half a century, but despite the promises of development and political freedom, the country’s ethnic minorities are still subject to violence, forced labor and the destruction of their environment by government and corporate interests.

The students at the Health and Earth Rights Training Center (HEART) are all members of affected ethnic groups and have experienced these issues first-hand, so last week I took a trip to the Thailand-Burma border to see what they thought about the changes in their homeland. None of them had anything good to say.

“In the past few months the government has been building many roads to remote villages in my area," said a student from Shan State, who works with an ethnic women’s organization. "However, they use forced labor to build them and the people living along the road don’t have a choice but to work “Sometimes people have to move their entire house or village. They aren’t even very good roads, just dirt and gravel.”

Another student, a former resistance soldier who lost his arm to a land mine, said that opening the country to foreign investment will just bring more suffering to ethnic minorities in Myanmar/Burma. “People are excited about the jobs international investment will bring, but they don’t know what the effects will be. There will be serious environmental, political and social impacts, but all anyone can see now is money.”

In the HEART classroom.

A student from Karen State, just across the border, said that the constitution needs to do more for ethnic rights. “There has been political change, but it’s just talking. Nothing has changed in Karen State. The constitution should protect indigenous rights, especially freedom of demonstration.”

This guest post was contributed by Kendall Manlove, a legal intern in our US office. Kendall is a rising second year law student at Moritz College of Law at The Ohio State University and has previously worked with ALTSEAN-Burma. Opinions and analysis in this post are Kendall's own. ERI has also posted our official statement on US investments in Burma.

In her long anticipated Nobel Lecture last month, Daw Aung San Suu Kyi called for “cautious optimism” regarding Burma “not because [she did] not have faith in the future but because [she did] not want to encourage blind faith.”  As someone who has been active in the Burma democracy movement, I can attest that the recent changes in the country have been staggering. Less than three years ago, the former military regime arbitrarily sentenced Suu Kyi to an additional 18 months of house arrest for letting a deranged American into her home after he swam onto her property. Today, she is a member of the Burmese Parliament.

Burma’s nascent political reforms have precipitated calls for the West to roll back economic sanctions. Recognizing that the rest of the world was about to take advantage of new investment opportunities, the Obama Administration announced on May 17 that it was relaxing economic restrictions on new investment in Burma. That day, Secretary of State Hillary Clinton said: "we say to American business: invest in Burma and do it responsibly." Today, the Obama Administration announced what they actually meant by “responsible investment” when it released the rules these investors must follow in order to maintain their license to invest. While the rules cover a number of important issues, the U.S. missed an opportunity to develop a comprehensive framework that could have been used as leverage to push for continued reforms in Burma.

Last month, the U.S. government weighed in on the side of Royal Dutch Petroleum/Shell in the Kiobel case, opposing everyday people who claim to have suffered when the oil giant’s pursuit of profits led it to collude with the Nigerian military government to commit human rights abuses.

The government’s brief, authored by the Justice Department, was offensive, deeply troubling, and legally deficient. It argued that the United States judicial system is not available to victims of human rights abuses in cases like this one, where a foreign company that is otherwise subject to our courts was complicit in atrocities abroad.  This argument flies in the face of decades of precedent and weakens the protections of a law that is over 200 years old.

Now we’re pushing back. A number of key signatures are conspicuously absent from the brief, indicating that there were internal struggles within the administration over the government’s position. Most notable was the lack of a signature from Harold Koh, the top lawyer in the State Department and a longtime human rights advocate. In fact, neither the State Department nor the Commerce Department signed the brief, despite having joined a previous Kiobel brief in support of the victims.

Why didn’t the government’s top foreign and trade policy officials sign this brief? Their absence is particularly glaring given that the brief relies almost solely on arguments about the effects of human rights claims on foreign affairs.

We want to know how this strange brief came to be, so we have submitted three Freedom of Information Act (FOIA) requests, asking for relevant communications regarding the decision-making surrounding the government’s Kiobel brief. If disclosed, this information will help reveal whether or not the business interests of Attorney General Eric Holder or Deputy Solicitor General Sri Srinivasan influenced the government’s position in Kiobel.  Prior to joining the government, both Holder and Srinivasan represented companies that were subject to lawsuits similar to Kiobel, and both of their former clients would benefit if the Supreme Court adopts the position advocated by the Justice Department. We also hope to learn whether the U.S. government was lobbied by business interests.

Here in the Lima office, we are troubled by two days of violence and arbitrary force reportedly unleashed by the Peruvian police and army against civilians protesting the Conga mine project in Cajamarca.

The contested Conga project, financed by US-based company Newmont, has drawn a renewed wave of popular protest in recent weeks after Peruvian President Humala affirmed that he will give the project the “green light.”

This is despite widespread objection to the proposed gold mine that would require moving four pristine lagoons now serving as water sources for residents throughout the Cajamarca region.

Although the protests have been largely peaceful over the past few weeks, things turned unexpectedly violent yesterday when police reportedly clashed with protesters in Celendin, Cajamarca. Three civilians are reported dead, and many more, injured.

According to local news sources, last night protesters filled the Plaza de Armas in Cajamarca in a silent vigil for the three civilians who were killed, only to be met by a wall of police who fired tear gas into the crowd. The protesters reportedly had to flee into a nearby church for safety. President Humala, in turn, extended the “state of emergency” until July 26 in the zones surrounding the Conga project.

For the people of Cajamarca, the “state of emergency” has come to be associated with criminalization of protest; a suggestion that found support only hours ago when Father Marco Arana, one of the most prominent leaders of the movement against the Conga project was reportedly interrupted during a silent vigil and forcefully detained by the police. As of now, it is not known what charges, if any, have been brought against Arana. But it is reported that he is being denied access to his lawyer.

Arana's detention was caught on video: