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The 2012 Summer Olympics in London are fast approaching, and protests recently broke out in both London and India, calling for the International Olympic Committee (IOC) to drop Dow Chemical Company as a sponsor. The growing opposition to Dow’s sponsorship comes from individuals and a host of organizations including Amnesty International, Action Aid, and the Indian Olympic Association, and stems from Dow’s links to one of the worst industrial catastrophes in history.

On December 3, 1984, a methyl isocyanate gas leak at an American-owned Union Carbide pesticide plant in Bhopal, India killed over 5,000 people and exposed thousands more to harmful chemicals with devastating long-term health impacts. While the company initially tried to deflect any responsibility for the accident, in 1989 Dow reached a settlement with the Indian Government to pay $470 million in compensation. Dow representatives have told the media that their hands are completely clean, because the settlement closed the Bhopal matter years before Dow had even acquired Union Carbide.

However, that settlement is just one piece of the puzzle, and when Dow purchased Union Carbide in 2001 they inherited a number of pending civil and criminal cases in both India and the United States, including Sahu v. Union Carbide, a case in which ERI is co-counsel. In 1994, a decade after the original spill, Union Carbide abandoned the plant in Bhopal, leaving behind a toxic mess of chemicals that continued to leak into the surrounding water supply. In the Sahu case, residents of Bhopal have filed suit against Union Carbide over the health and enivonmental impacts of this contamination.

A few weeks ago, Benjamin blogged about the Grand March for the Right to Water and Life in Peru. Over 8 days, people marched hundreds of miles from different corners of Peru, sleeping in elementary schools, restaurant floors and fed by townspeople in solidarity with their cause. The marchers finally arrived in Lima, the City of Kings, on the 9th of February, and their journey and demonstrations have come to symbolize a historic moment for social movements and communities affected by mining, showing the country and the world that fundamental changes need to be made in the extractive industries. Two legislative changes are proposed: first, the creation No-go-zones for mining—in particular to prohibit mining in the headwaters of rivers—and second, to protect water sources by making water a human right.

ERI was present to greet the marchers. I was in the public forum, sitting front row next to my friend, colleague and ex-vice minister of the Environment Jose de Echave, whose critique of the Conga project brought about his resignation. We watched and heard the voices of many individuals, leaders and politicians, all sharing their sentiments about mining politics in Peru. In between speeches, we were entertained by the “beauty contest” winner Miss Cerro de Pasco, from the oldest mining town in Peru, which has an open pit mine 2 kilometers wide eating away at local houses. On stage she performed for the audience, telling us all about the special quality of her blood that is full of heavy metals, her lovely town that rations an entire 2 hours of water a day for each family, and the leach pads full of contaminants that tourists can visit. She sarcastically thanked the mining companies for the wonders of her town.

Court orders Kiobel case reargued and asks whether human rights cases arising in other countries can be heard

A few hours ago, the Supreme Court issued a highly unusual order in the Kiobel case: the Court will not decide that case, on whether corporations can be sued for human rights violations such as torture and crimes against humanity, during this term. Instead, the Court will re-hear the case, and will receive entirely new briefing, to focus on a different issue: whether Alien Tort Statute cases can be brought in U.S. courts over abuses which occurred in other countries.

A few quick thoughts about this order: First, this may have been issued because the Supreme Court doesn't want to rule in favor of corporate immunity for torture, but still wants to address some outstanding issues in these cases. They had another means of addressing this question if they wanted to: on Friday the Court considered taking the Sarei v. Rio Tinto case, which expressly raised the question of whether the ATS applied abroad. The Court didn't rule on taking Rio Tinto. Instead, they kept Kiobel.

Second, there is little reason to believe that the Supreme Court will rule that no cases can be brought for torture abroad. When this issue was raised at the Kiobel argument, Justice Ginsburg noted that the seminal ATS human rights case, the Filartiga case, arose outside the U.S., and that the Supreme Court's Sosa decision had indicated its approval of Filartiga. "I thought that -- that Sosa accepted that Filartiga would be a viable action under the tort claims act."

Significantly, Justice Kennedy, who may well be the deciding vote on this issue, seemed to agree: "I agree that we can assume that Filartiga is a binding and important precedent for the Second Circuit." So the Court may be taking up this issue to clarify the law.

Third, this means that for those of us who have been fighting about Kiobel, the saga isn't over! There will be another round of briefing, including amicus briefs, and a new argument, and this time the stakes might be even higher.

Update: Katie Redford, our US Office Director, has posted her thoughts on the Huffington Post.

On March 1^st, the Shwe Gas Movement launched their 7^th Annual Global Day of Action against the Shwe Gas and China-Burma Pipelines Project.  With support from over 100 organizations in over 20 countries, SGM drew attention to the human rights abuses being perpetrated as a direct result of the pipeline and  demanded that the project be suspended until the negative environmental and social impacts of the project are addressed.

Over the past year, Burma has become more open and civil society groups have had success in campaigning to suspend or modify several controversial development projects; the Mytzone Dam in Kachin State and the coal-fired power plant in Dawei.  The recent changes in Burma have left many, myself included, cautiously optimistic.  However, excitement from those successes should not overshadow the work that is left to be done. As Katie judiciously stated in her post, back in December, “even the most optimistic agree that it will take a long time before any of what we’ve heard from Burma’s capital is felt on the ground by those who have suffered the most.  It took decades to build one of the world’s most notorious armies… those half-million soldiers won’t change their brutal ways overnight.”  This is evidenced by the continuation of brutal Burmese military offensives in areas near controversial development projects. The renewed violence between the Burmese Army and ethnic armed groups in Northern Shan State, more specifically, in areas slated for the Shwe Oil and Gas Pipelines, is a perfect example of this.

Editorial Note: This morning the U.S. Supreme Court heard oral arguments in Kiobel v. Royal Dutch-Shell, a case which we have blogged about extensively over the past 18 months. Several of our staff members were in attendence, and four of them wrote brief initial impressions. This is one of those four.

How did it go? Who knows? There is a reason why people say you shouldn't try to predict which side will win a Supreme Court case based on the oral arguments.  This one certainly was no exception. There seemed to be Justices on both sides, and others whose positions could at best only be guessed at.  Its strange to think that the continued existence of the ability to sue corporations-which was essentially unquestioned for over a decade-may now rest on the decision of a single Justice.

Yet here we are.

Ultimately, I am optimistic.

Not because I feel like I learned anything today that would help me predict who will win... but because I still find it difficult to believe that the Court will accept that a corporation can participate in genocide or crimes against humanity and yet be immune from suit; to find that although corporations can be sued everywhere in the world for even ordinary torts, they can't be sued here for the worst kinds of abuses.  I still have faith in the rule of law.

Editorial Note: This morning the U.S. Supreme Court heard oral arguments in Kiobel v. Royal Dutch-Shell, a case which we have blogged about extensively over the past 18 months. Several of our staff members were in attendence, and four of them wrote brief initial impressions. This is one of those four.

One of the most remarkable moments for me, during today's arguments, was when the respondents argued that international law didn’t apply to corporations because the texts of international treaties and conventions didn’t specify that they applied to corporations in particular.

In response, Justice Kagan countered: “well, the text of those conventions doesn’t mention that Norwegians can be sued either, but that doesn’t mean that the Norwegians should be exempt from human rights liability.”

Justice Kagan is exactly right: the norms prohibited under international law are prohibited regardless of who violates them. This is true whether one is “Pirates Inc.” or, in Justice Kagan’s hypothetical case, Norwegian.

Editorial Note: This morning the U.S. Supreme Court heard oral arguments in Kiobel v. Royal Dutch-Shell, a case which we have blogged about extensively over the past 18 months. Several of our staff members were in attendence, and four of them wrote brief initial impressions. This is one of those four.

It was an amazing experience to sit at the Kiobel argument with Katie Redford, who pioneered the legal theory behind corporate ATS litigation, to my left, and Charles Wiwa, whose uncle's experience at the hands of Shell exemplifies the need for corporate human rights liability, directly behind me.  

After watching the nine justices in action today, I'm not sure I have any insight into which way the decision will ultimately go. I can only hope a majority sees this case for what it means to the Wiwa family, the ERI crew, and all the other victims of corporate abuses -- a question of whether companies have been granted immunity from general liability rules for the worst crimes imaginable.

Editorial Note: This morning the U.S. Supreme Court heard oral arguments in Kiobel v. Royal Dutch-Shell, a case which we have blogged about extensively over the past 18 months. Several of our staff members were in attendence, and four of them wrote brief initial impressions. This is one of those four.

I was struck by two things at today's argument. First, although several of the justices - especially Justice Alito - asked difficult questions that suggested a skepticism about using the ATS for transnational human rights cases, they did not ask pointed questions that supported applying different rules to human beings and corporations. 

Justice Alito focused in particular on whether the ATS should apply to acts outside the United States, or acts committed by foreigners. When it was pointed out that theFilartiga case, which is the seminal modern ATS human rights case, involved torture by a Paraguayan official against a Paraguayan citizen in Paraguay, Justice Kennedy (who is often the deciding vote on controversial cases at the Supreme Court) stated that he thought we could assume that Filartiga was a valid precedent.

Second, although there were many interesting questions, statements, and examples (not least of which was Justice Breyer's hypothetical involving Blackbeard claiming that his stolen gold was exempt from recovery because it really belonged to Pirates, Inc.), the single line that impressed me the most was delivered by Kathleen Sullivan, the attorney for Shell. She stated: "We do not urge a rule of corporate impunity here."

What she meant was that even if the corporation itself could not be sued, any responsible corporate officers or employees could be sued. Of course, what she was urging is exactly that: corporate impunity. Shell's position would prevent the corporate treasury from ever being used to compensate victims of corporate-abetted human rights abuses, even if the corporation itself profited from those abuses.

Sullivan was clearly uncomfortable with the position that there should be no liability for corporate wrongdoing, and so she tried to claim that allowing suits against corporate officers and employees was sufficient. Nobody wanted to justify the position that corporations do, in fact, enjoy impunity when it comes to the most egregious violations of international human rights law.

Our legal director, Marco Simons, was interviewed this morning by Amy Goodman on Democracy Now. The topic? The Kiobel v. Royal Dutch Shell case, one of two human rights cases that will go before the US Supreme Court next Tuesday. Here’s the video:

The stakes on Tuesday are very high, and Marco summed it up nicely:

"This case is really about whether a corporation that participates in serious human rights abuses, such as crimes against humanity or genocide or state sponsored torture, can profit from those abuses and shield those profits from the victims when the victims come to take them to court."

A favorable ruling will not only bring the Kiobel plaintiffs closer to a small measure of justice for the terrible abuses they suffered,  but it will also firmly establish the principle that victims of serious human rights abuses may bring suits against corporations under the Alien Tort Statute (ATS) in US  courts. A ruling in favor of Royal Dutch Shell, on the other hand, would be an enormous setback for corporate accountability and human rights litigation, and help immunize corporations from liability for complicity in some of the worst abuses imaginable, including forced labor, genocide, and other crimes against humanity.

In addition to the Kiobel case, the Supreme Court will also be hearing arguments in Mohamed v. Palestinian Authority, which raises similar questions about human rights lawsuits against organizations, including corporations, under the Torture Victims Protection Act (TVPA). The stakes in this case are also high. With our partners, we’ve been campaigning around both cases at the newly launched website, Corporate Accountability Now.

The Obama Administration has weighed in on both cases as well, and earlier this week my colleague Rick sent me some notes on the government’s positions:

On Wednesday, Marissa noted that the Lago Agrio plaintiffs - the 30,000 victims of Chevron's toxic legacy in the Ecuadorian Amazon - had taken the step of filing a petition against the Ecuadorian government with the Inter-American Human Rights Commission, asking the Commission to ensure that Ecuador compels Chevron to pay the court-ordered costs of cleaning up its mess. Yesterday, a private arbitration panel demonstrated exactly why this petition is necessary. The arbitrators' award orders the Ecuadorian government, including the court system, to take all measures to prevent enforcement of the court judgment against Chevron.

This is an egregious and apparently unprecedented decision. These arbitration panels, convened under investment treaties, are supposed to decide whether a government has treated a foreign investor fairly - usually in the context of a state expropriation of assets, for example. Never before has such a panel, which is made up of private lawyers who act as arbitrators in a lucrative side business, attempted to reach into a country's judicial system and order the domestic courts around.

The worst aspect of the new award is that it completely fails to take into consideration the rights of the Lago Agrio plaintiffs, who continue to suffer from the toxic contamination. Until the judgment is enforced, the contamination won't be cleaned up. Chevron is claiming that it was mistreated by the Ecuadorian government in the Lago Agrio lawsuit, but this award doesn't affect the rights of the Ecuadorian government; it only affects the rights of the victims themselves.

This is an extremely troubling development in investment arbitrations.

Update: According to the Lago Agrio plaintiffs' lawyers, the Ecuadorian courts have put due process and human rights above the investment treaty arbitration. Today the judgment against Chevron was certified by the court, which specifically rejected the notion that the investment treaty could override Ecuador's human rights obligations. A rough translation of part of the court's order: