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I recently had the chance to learn a bit more about the recent reforms in the Spanish Penal Code, which establish corporate criminality for a number of acts for the first time ever. Until now, Spain has been one of a dwindling number of countries (along with Germany, Italy, and Russia) that has resisted subjecting corporations to criminal law.

The list of crimes covered includes environmental crimes, corruption, terrorism, human trafficking, drug trafficking, and money laundering, as well as wide variety of economic crimes. Businesses are criminally liable for the acts of their directors, managers, and legal representatives that are committed on behalf of the company, and for the acts of employees that are committed in the course of their employment and on behalf of the company, if the company did not exercise reasonable control over the employee under the circumstances.

The criminal liability established here gives rise to concurrent civil liability as well.

The articles and documents I've read don't give me much of a sense of how far criminal jurisdiction extends – for example, whether a Spanish company can be prosecuted in Spain for committing one of these crimes abroad. (It may depend on the crime -- it's clear that the anti-corruption provision applies to bribery of foreign officials, but I'd imagine that the environmental provisions apply only to violations of Spanish environmental law, which probably doesn't have extraterritorial effect.) And for those parts of the new reform that do apply extraterritorially, it’s unclear to me whether and under what circumstances Spanish companies may be held responsible for the actions of their foreign subsidiaries.

Oil-rich Southern Sudan is voting this week for its long-awaited independence from the North in a referendum that began Sunday. This comes amidst fresh allegations that the North's controversial President Omar al-Bashir stole an estimated $9 billion of his country's oil wealth, storing it in “illegal accounts.”

The source of the corruption claim is Chief Prosecutor at the International Criminal Court (ICC), Luis Moreno-Ocampo, who's been working on the ICC indictment against Bashir for war crimes, crimes against humanity, and genocide. It appeared in a 2009 U.S. cable released last month by Wikileaks, and on New Year's Day Ocampo confirmed the allegations to the New York Times, adding that Bashir is “doing business through third parties” and that the money is in “several places, outside Sudan.”

The leaked cable suggests the involvement of Lloyd's Bank in London. Lloyd's did what most banks do and promptly denied the allegations, suggesting they held no accounts in Bashir's name, which may be true but of course doesn't rule out that the revenues could be in Lloyd's bank, held through third parties or concealed by other means. International banks have a sordid history of concealing the source of funds held in their institutions, and international oversight and enforcement has been relatively ineffective despite post-9/11 efforts to track and interdict illicit financial activity.

I’m pleased to report that the Inter-American Court of Human Rights (IACHR) ruled on November 26 that Mexico is responsible for the arbitrary detention and torture of Rodolfo Montiel Flores and Teodoro Cabrera García, two environmental activists who were falsely imprisoned and subjected to horrific physical and psychological abuse by Mexican military forces in 1999-2000.  This legal victory comes after nearly a decade during which Mexico obstructed investigations and blocked the victims and their advocates from seeking justice.  At the request of the Centro Prodh, the Mexican NGO representing the Montiel and Cabrera families, ERI submitted an amicus brief to the IACHR on the rights of environmental defenders.

In some ways, the Court’s opinion is quite progressive.  It sees right through the sham judicial procedures and investigations carried about by the military, noting the irregularities and delays and rightfully rejecting doctored medical reports that papered over the effects of torture on the bodies and minds of the victims.  It finds that Mexico’s practice of submitting cases involving human rights violations to military jurisdiction is inconsistent with the protection of human rights, and insists that the state allow such cases to proceed in the ordinary civilian courts instead.  And it requires that the Mexican State provide medical and psychological care to Srs. Montiel and Cabrera.

The newest U.N. human rights treaty, the International Convention for the Protection of All Persons from Enforced Disappearance, enters into force today.  The convention absolutely prohibits the practice of disappearing people, defined as detaining someone "followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law."  Disappearance has generally been recognized as a human rights abuse since the 1980s, but the new treaty creates a mechanism for monitoring efforts to stop disappearances, as well as an optional individual complaints procedures.

The treaty, which was opened for signature in 2007, enters into force 30 days after its 20th ratification--in this case, it was Iraq that put it over the top.  Unfortunately, however, the United States has not signed or ratified the treaty, probably due to fears that it will interfere with anti-terror efforts.  (But if Iraq--a country that faces far more terror attacks than does the U.S.--can do it, I wonder why the U.S. should have a problem.)  Other countries that ERI has experience with--including Burma and all of the other Mekong countries, Peru, Colombia, and India--are also not parties to the treaty, although Colombia, India, and Laos have signed it but not yet ratified it.

Many human rights treaties start slowly, and eventually gain wide acceptance.  The Torture Convention, which also entered into force after 20 ratifications, took about three years to get to that point and is now ratified by 147 countries around the world.  The Disappearance Convention itself is the product of nearly 30 years of work, starting with a 1978 General Assembly resolution and followed by a 1992 U.N. declaration.  So while the development of human rights law is sometimes slow, the issues that are the subject of non-binding declarations today--such as indigenous peoples' rights--may eventually be governed by widely-ratified treaties with a mechanism for enforcement.

This guest post comes from Leina Ley, a third year law student at Berkeley Law and a recent legal intern in ERI's Washington DC office. Leina is Native Hawaiian and is interested in indigenous rights, civil rights, and environmental justice.

Last week at the second annual White House Tribal Nations Conference, President Obama announced that the United States would join the rest of the world and endorse the U.N. Declaration on the Rights of Indigenous Peoples. The announcement by President Obama marks a significant milestone in U.S. relations with Native peoples as well as in the development of international human rights law. While the Declaration is a non-binding legal document, it outlines key rights to guide states in their relationships with indigenous groups, such as the right to speak indigenous languages, to keep native children within the community and to access and use traditional lands. The Declaration also explicitly recognizes the history of dispossession, marginalization and colonization shared by indigenous peoples the world over who came together to secure the passage of the Declaration.

This week, we released a report focused on 15 international oil and gas companies that the government of Norway has invested more than $4.5 billion through its public pension fund. The report found that these companies are operating in Burma and are complicit in human rights abuses committed by the Burma army providing security for their oil and gas projects. As shocking as it may seem to those who view Norway as the bastion of ethical investment and responsible management of their oil revenues (through their oil Fund), the truth is that, by its own rules, Norway itself is complicit in (and profiting from) these abuses.

We released this report both because we have important information from inside Burma that documents the direct connection between these companies, their projects, and serious and on-going and likely human rights abuses, and because Norway strives to avoid complicity (and profit) in serious human rights and environmental harms through their investments. In fact, Norway should be commended for creating the Ethical Guidelines; a leading standard for responsible investment that other governments, and socially responsible investors look to for guidance on their own investment decisions. 

Today is International Human Rights Day, and the 62nd anniversary of the U.N.’s endorsement of the Universal Declaration of Human Rights. For those of us who work on human rights issues every day, December 10th can be a bit jarring, as the world’s attention focuses on our work for 24 hours and then swivels away again. We’d all love to see the energy and messages of this day persist around the year, so today I walked through our U.S. office and gathered tips from our staff on how you can do just that:

Know Where Your Money Is Going

Tip #1. Katie, our co-founder and U.S. Office Director, suggests that once every week you take a few moments to think about the human rights impacts of a product you’re buying or using (whether its gasoline or shampoo, coffee or an iPhone). Learn about the social and environmental record of the company that produced it and the country in which it was produced, about the actual conditions under which it was produced, and what will happen to it when you’re done with it. Smartphone users can use the GoodGuide app to learn about the health, social, and environmental impacts of products while they shop!

Tip #2. It's holiday giving season and Maggie, our Development Coordinator, reminds you to do your due diligence when donating to charity. Don’t donate to an organization based only on their name or mission statement... take a little extra time to learn about the programs your donation will be funding, to make sure they truly reflect your ideals and will have an impact on the ground. Don't forget to research their finances, too, so you know your money isn't being wasted.

We've had a little time to review Monday's ruling from the Ninth Circuit Court of Appeals, which held that ERI's case against Occidental Petroleum should be heard in federal court in Los Angeles, rather than sent to Peru as Oxy was seeking.  (The case page has all the relevant docs.)  We represent victims of pollution from the Achuar indigenous group in the Peruvian Amazon.  There are several points worth noting, both for their impact on this case and in future cases.

A bit of background

We filed this case in 2007 and Oxy responded with a motion to dismiss for "forum non conveniens" (FNC), which is a bit of legal Latin that simply means "inconvenient forum"--basically, that even if the court has jurisdiction over of the case, there's another court somewhere else that would be a better place to hear it.  Oxy also sought to dismiss Amazon Watch as a plaintiff because they argued that Amazon Watch did not have standing to sue.  The trial court dismissed the case based on FNC, ruling that it should be heard in Peru, and found that it didn't need to decide whether Amazon Watch had standing.

The Ninth Circuit's ruling

It's interesting to note that the FNC test has several parts, and the Ninth Circuit found problems with the trial court's approach at every step.  First, FNC requires that there be an alternate forum--a court somewhere else--that can hear the case.  The Ninth Circuit found that the Peruvian courts were not adequate to hear this case.  Although the court took pains to emphasize that it was not issuing a general indictment of the Peruvian legal system, it did say that based on the unique circumstances presented here, it wasn't appropriate to send the case to Peru.  What are those circumstances?  The court didn't precisely enumerate them, but it did mention that Oxy intends to argue that the statute of limitations has run in Peru, that Peruvian law appeared to offer no more than nominal compensation for injuries, that Peru would provide no remedy to Amazon Watch, and that Oxy's own expert witness had submitted evidence substantiating corruption in the judicial system.

The EarthRights School Mekong (ERSM) often takes students outside of the classroom and into the field to observe the negative impacts of development projects and to hear from local communities about their struggles to address those impacts. In one of their first field trips this year, the ERSM students visited the Mae Moh power plant and lignite mine. Owned and operated by the Electricity Generating Authority of Thailand (EGAT) and funded by the Asian Development Bank (ADB), the facility is Southeast Asia's largest coal-fired power plant and is fed by an open-pit lignite mine covering 135 square kilometers.

Lignite mining causes severe environmental damage and heavily impacts surrounding communities. Pollution from the facilities at Mae Moh has displaced over 30,000 people, and many more have suffered from acute respiratory problems as a result of sulfur dioxide in the air. Toxic coal dust has worked its way into the rivers, reservoirs and ground water in the surrounding area, causing further health problems for residents and decimating the natural environment.

The Mae Moh lignite mine disfigures the surrounding landscape

The local communities, however, have been fighting for their rights for over a decade and have won significant legal battles against EGAT. The Mekong School students had a chance to meet with many of them to discuss their struggle and gain first-hand experience with grassroots activism.

Clearly, lignite mining caused pollution and the villagers must bear the consequences of the mining company – who has been getting so much profit regardless of pollution or abuse the human rights of the villagers. [. . .] [B]ecause of cadmium contamination, the community also cannot catch fish or use water for households and irrigation. – Student from Vietnam

Today, Publish What You Pay (PWYP), a global coalition of civil society organizations was presented with the Commitment to Development Award sponsored by the Center for Global Development and Foreign Policy magazine. Special recognition is being given to Publish What You Pay United States (PWYP US), of which ERI is a member, for promoting revenue transparency in the oil, gas, and mining industries through our work towards passage of the Cardin-Lugar Transparency Provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

The Cardin-Lugar Provision, the first of its kind in the world, will require all oil, gas, and mining companies filing annual reports with the Securities and Exchange Commission to disclose their extractive related payments to governments on an annual and project basis. The detailed discloser requirements are currently being drafted by the Securities and Exchange Commission and they will issue draft regulations later this month, and final regulations sometime in 2011. Both PWYP US and ERI are submitting Comments to ensure the intent of the legislation is not defeated by industry attempts to weaken the rules.