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When I returned to Washington D.C. this week, after a 10-day trip to Peru, the immigration officer asked me what my business had been there.  "I'm an attorney," I said. "I was meeting with clients." But this simple response hardly captures the full story.

For lawyers in the international human rights field, meeting with clients usually doesn't mean inviting them to our office. It often means visiting a refugee camp on the Thai-Burma border, or heading for a village in the Niger Delta.

In this case, it meant flying to Iquitos, the largest city in the Peruvian Amazon, followed by a two-day trip upriver on the Rio Marañon, the Rio Tigre, and then finally the Rio Corrientes, to reach the Achuar community of Pampa Hermosa.  It's another day up the Corrientes to reach the farthest community, Jose Olaya, scarcely 15 miles from the Peru-Ecuador border.

ERI represents these communities in a lawsuit in the US against Occidental Petroleum, alleging contamination from decades of oil operations in Achuar territory.  The remoteness of these communities, and the difficulty of meeting with our clients, certainly makes the case challenging, but it was actually one of the factors that motivated us to bring the case.

One of our Achuar plaintiffs, with her daughters

When corporations operate in most developed countries, and even in many cities in the developing world, they frequently assume that people affected by their operations will have access to information, media, and, if necessary, legal counsel.  That hasn't always been the assumption for remote corners of the Amazon, or other similarly inaccessible regions; companies sometimes expect that the local population won't have access to any remedies.  We're working to change that expectation.

Bloomberg reported last week that Zijin Mining – China's biggest gold mining company – had been fined $4.6 million dollars for environmental pollution, and that high company officials had been detained in connection with toxic spills in Fujian Province. The article focuses on the growing efforts of the Chinese government to enforce environmental laws, at least in extreme cases, and points out the inadequacy of fines that reach into the millions of dollars in a mining industry that sees revenues in the billions.

Zijin itself has a troubling record when it comes to accountability for earth rights abuses. It is the parent company of Monterrico Metals, a mining company formerly based in the UK, which has been implicated in the torture of several unarmed protesters at the Rio Blanco mine in Peru. In 2009, a British judge had to issue a freezing order preventing Zijin from removing all its assets from the UK, which would have shielded it from executing any eventual judgment against Monterrico for its actions. (The Monterrico case goes to trial in the UK later this year.)

These latest developments remind of us the continuing urgency of two of the biggest question marks in the field of corporate social responsibility: As Chinese extractive companies begin to operate more widely throughout the world, will they operate according to global standards of responsible behavior? And what will be the Chinese government's role, if any, in ensuring that they do?

Since February, Chevron has been facing what is probably the largest environmental judgment in history-- an $8 billion award from an Ecuadorian court for contaminating the Ecuadorian Amazon.  (That judgment is now available in English, below, courtesy of Chevron.)  They've gone on the offensive against this judgment on two fronts.  But they need to win not just these cases, but every other one that the plaintiffs might file.

The plaintiffs' strategy has become known through the release of the so-called "Invictus" memo.  That memo, drafted by law firm Patton Boggs for the Ecuadorian plaintiffs, outlines a global enforcement strategy.  The Ecuadorians can go after Chevron in the US, but they can also try to enforce the judgment in Argentina, Brazil, Venezuela, and dozens of other countries where Chevron operates or has assets.  Not surprisingly, Chevron is working hard to prevent that.

Chevron's first assault on the Ecuadorian case was an international arbitration against Ecuador, filed in September 2009.  (Although such arbitrations are typically secret, Chevron posted its complaint to its website.)  Under the guise of international investment law, Chevron wants to have the Ecuadorian government interfere in its own court system, to tell the courts that Chevron's not responsible for the pollution in the Amazon.

I think Chevron's case in the arbitration is thin.  Working with the International Institute for Sustainable Development and the Ecuadorian indigenous rights group Fundacion Pachamama, ERI filed an amicus brief with the arbitration tribunal last fall, arguing that the tribunal shouldn't even hear the case.  We learned last week that the arbitration tribunal rejected our brief, unfortunately--but it still hasn't decided whether it will hear Chevron's case.

Humans, by our very nature, seek community. Historically this has meant living within the community of those who share our day-to-day lives and perspectives. These communities have often been sustained and nurtured by women. In the 21^st century, technology has allowed our communities to expand, even to the global level, which means the potential impact a single woman can have has grown exponentially.

Women Defending Earth Rights

At EarthRights International, we have worked alongside some of the most amazing women, all over the globe, in the struggle to protect human rights and the environment. While our programs provide support to such women, who have often been very marginalized, they have given back to us a thousand-fold, both through incredible collaborative partnerships and through the inspiration their work gives to us.

For example, Mathoura Ith, one of the founders of the first public interest law firm in Cambodia, leading the struggle for land use rights, has shown us that even when you are physically small and soft-spoken you can win crucial legal fights against “the big boys”.  In Peru, Lily La Torre, a human rights activist and lawyer, has been fighting for decades for justice for indigenous communities injured by the activities of the petro-chemical industry, undeterred by the long-term nature of the struggle.  Jingjing Zhang, one of the leading environmental lawyers in China, has inspired us with her never-flagging spirit, despite working for justice in some of the most heavily polluted places on the planet. 

Meanwhile, often outside the spotlight, the women who have attended and graduated from our EarthRights School Burma and EarthRights School Mekong inspire us every day with their dedicated pursuit of justice in their own countries and communities.

From our friends at Global Witness comes news of a significant victory in the human rights case against Anvil Mining, which Global Witness and several other groups filed last fall in Quebec. The judge ruled that the case, which arises out of the Kilwa massacre in the Democratic Republic of the Congo, should proceed in Canada--rather than in the DRC or in Australia, where Anvil has offices.  The judge stated:

It is apparent ... that it is impossible to determine that the authorities of the Congo or of Australia would clearly be more appropriate for hearing the case. In fact, at this stage in the proceedings, everything indicates that if the court were to refuse to accept the application ... there would be no other possibility for the victims' civil claim to be heard.

Although ERI's cases have been litigated in the US, we've long been interested in seeing similar litigation proceed in other forums--and Canada is at the top of the list. (In fact, in law school I wrote a paper on "Canada as a forum for transnational human rights litigation," so I've been especially focused on developments there.)  We're thrilled that this case is moving forward--it's one more step toward expanding accountability mechanisms worldwide.

Today is Earth Day. Maybe you've already read a few blog posts today about doing your little part: recycling, taking public transit, and turning out the lights. Or perhaps you've heard the sometimes cutesy, sometimes cynical retort: "every day is Earth Day." These are both important concepts (and, I must confess, I wrote a "do your part" post on Human Rights Day four months ago), but for those of us entrenched in the environmental movement, they are also both woefully unsatisfying. We work on deeply rooted, complex problems and, while consumer lifestyle choices play a role in these issues, tweaking our daily routines won't solve them. These are problems that demand system change, and systems changes aren't easily reduced to bullet points.

So, instead of a fun and easily digested tips list, I'd like to honor Earth Day today with a more substantive post, exploring in broad strokes the core issue we work on at EarthRights International: the intersection of human rights and the environment, and the appalling earth rights abuses occurring around the world.

Background: the theory of earth rights

In 1999, Jed Greer and Tyler Giannini (an ERI co-founder) published "Earth Rights: Linking the Quest for Human Rights and Environmental Protection." This book, which is unfortunately the only major ERI publication not currently available online, weaves together a set of legal principles and a theory of advocacy to explain the connection between human well-being and a sound environment, and the rights -- the "earth rights" -- that this connection implies. Earth rights include "the right to a healthy environment, the right to speak out and protect the environment, and the right to participate in development decisions," although Greer and Giannini's more expansive list also includes the right to life, freedom from arbitrary deprivation of one's property and interference with one's home, the rights to nondiscrimination, health, food security and a means of subsistence, as well as the rights of indigenous people.

The argument, in a nut shell, is that "a sound environment cannot be maintained without respect for human rights" and, conversely, "human rights are unattainable without a healthy and safe environment."

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.

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, 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 environmental pollution at La Oroya, including lawsuits brought by Peruvian children against Doe Run in a state court in Missouri.

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 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.

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 not to exercise shareholder rights but rather to protest.