Blogs

On Wednesday, in San Ramon, California, Chevron will hold its annual shareholders’ meeting, and communities from around the globe are gathering to confront the oil giant on their unconscionable human rights and environmental record. For the past three years, ERI has joined with other members of the True Cost of Chevron Network in leading teach-ins, protests, press conferences, and other efforts to raise the voices of affected communities both inside and outside the annual meeting. We are unable to attend this year, but Paul Donowitz, ERI’s campaign director, wrote the following letter to express our ongoing solidarity with our allies’ efforts.

Dear Friends,

As you prepare to confront Chevron at tomorrow’s annual meeting and hold them to account for the impacts of their destructive practices in your communities and our global environment, I wanted to take a moment and once again express my solidarity with all of you, members of the amazing, inspiring, True Cost of Chevron Network.

I am saddened that I cannot join you this year. I have recently relocated to Thailand to focus more energy (the right kind of energy) on working with communities in Burma as they prepare for the onslaught of foreign direct investment in the extractive industries that will surely follow recent and ongoing political changes. I am constantly sharing with my new friends in Burma the cautionary tales and strategic advocacy strategies I have learned from all of you, and your experiences working tirelessly to defend the rights of people and the planet. 

The True Cost of Chevron Network grew from the idea that communities and advocates needed to come together in solidarity to raise our voices to change the policies of an entire industry and policy-makers who continue to put profit over people and the plant. We formed a community, an extended family all committed to each other, to justice and equality for those fighting to save their ways of live and the health and their people.

This past week, coinciding with Shell's annual shareholder meeting, human rights groups in Europe have been demanding answers from the Dutch and U.K. governments, who recently came to Shell's defense in the Kiobel case, which accuses shell of complicity in human rights violations in Nigeria. When pressed for answers, the U.K. government issued a jaw-dropping statement: "We believe that human rights obligations rest with states and not with non-state actors such as corporations."

For any government to make this statement in the 21st Century is just unfathomable. As multi-national corporations wield more power and influence across the world, we must ensure they are held accountable for their actions, especially when their pursuit of profits wreaks havoc on local communities.  Katie Redford, ERI's Co-Founder, wrote an impassioned blog post on these developments on the Huffington Post. She writes:

Have they not heard of Nuremberg, where corporate executives from IG Farben and other companies were prosecuted for their contributions to Nazi atrocities? We expect all actors -- including corporations -- to refrain from complicity in human rights abuses and to be held accountable if they fail to do so. 

As the U.S. Supreme Court prepares to re-hear the Kiobel case in November, you can expect to hear a lot more from us about these issues, especially the increasingly far-fetched claims that corporations deserve special exemptions from human rights law.

In related news, our friends at Milieudefensie posted a satirical video this week, adding clever visual commentary to a video of Shell's CEO discussing sustainability. Shell convinced YouTube to take the video down, alleging copyright violation, but it is still available on other sites and has been viewed more than 35 thousand times:

This week I'm posting a series of updates on recent developments in human rights cases around the globe. Wednesday I wrote about a Dutch court awarding damages to a Palestinian doctor who survived torture in Libya, yesterday I highlighted a criminal complaint filed against Nestlé for complicity in the murder of a union leader, and today I conclude this series with an update on corporate liability in the U.K. . . .

One of the most interesting and exciting recent advances in corporate liability has come out of the U.K. courts in an asbestosis case.  In Chandler v. Cape plc, the England and Wales Court of Appeals decided last month that Cape plc could be liable for failing in its duty of care to exercise proper supervision of health and safety conditions for employees of its South African subsidiary.

This is the latest case to affirm the principle that courts can hold parent companies responsible for the actions or omissions of their subsidiaries in a variety of circumstances.  By incorporating subsidiaries, parent companies create a “corporate veil” that cannot usually be “pierced” when the subsidiaries incur tort or tax liabilities.  The corporate form allows parents to claim that their subsidiaries are solely responsible, and they do not share in that responsibility.  Courts will normally pierce the corporate veil only when there’s evidence that the subsidiary is a sham, created only to allow a parent company to fraudulently avoid responsibility for wrongful acts. 

However, as U.S. and U.K. courts have made clear, when the subsidiary is acting on behalf of the parent, or – as in the Cape case – when the parent has direct responsbility for the subsidiary, the parent can be held responsible even if the subsidiary’s business is legitimate.

The judgment in Cape is particularly important because of the clarity with which it states this principle.  In finding that the parent company took on a direct duty to its subsidiaries’ employees to prevent unsafe production and handling of asbestos, the court ruled:

This week I'm posting a series of updates on recent developments in human rights cases around the globe. Yesterday I wrote about a Dutch court awarding damages to a Palestinian doctor who survived torture in Libya. Today we move onto Colombia and Switzerland...

Luciano Romero, a leader of the Colombian trade union SINALTRAINAL, was assassinated in September 2005 as he prepared to attend a meeting of the Permanent People’s Tribunal to testify against his former employer, Nestlé subsidiary Cicolac – for its ties to paramilitary violence.  A Colombian criminal investigation into the responsibility of Cicolac officials, who had spread false rumors of Romero’s membership in guerilla groups and incited violence against him by telling milk suppliers with paramilitary ties that Romero’s activities would drive down their profitability, is stalled.  Meanwhile, the responsbility of Nestlé, the Swiss parent company, has simply been ignored by judicial authorities

The European Center for Constitutional and Human Rights (ECCHR), along with SINALTRAINAL , recently took a step toward addressing that gap by filing a criminal complaint in the company’s headquarters in Zug, Switzerland.  They claim that Nestlé acted with criminal neglect because it knew that its local representatives’ accusations against Romero and its economic ties to paramilitaries amounted to a death sentence for Romero but refused to take mitigating steps.  As the numbers of assassinated Cicolac labor leaders mounted, the trade union asked the parent company to intervene, but Nestlé responded that Cicolac had sole responsibility for its actions.  This is irreconcilable with Nestlé’s own policy statements, in which it pledges to take responsibility for the whole group’s compliance with internationally recognized labor rights.

With all the uproar around the Kiobel and Mohamad cases, I’ve been a bit remiss about updates on important legal developments in other parts of the world.  As we all watch the Supreme Court with anxiety, it’s important not to miss the fact that our partners elsewhere are pushing forward in the quest for effective judicial remedies for human rights abuses – particularly those related to corporate activity. Over the next few days, I'll be commenting  on a number of encouraging developments around the world, beginning today with Libya and the Netherlands...

On March 21, a Dutch court awarded 1 million euros to Palestinian doctor Ashraf El-Hojouj, who was tortured in a Libyan prison after being scapegoated for the infection of Libyan children with HIV.  Dr. Liesbeth Zegveld, an attorney with the law firm Böhler Advokaten – the same firm that is representing Nigerian villagers in an oil spill lawsuit against Shell – successfully argued that Dutch courts should hear the case, even though neither party was Dutch and the injuries were suffered abroad, based on a Dutch civil procedure rule allowing Dutch courts to hear cases that could not reasonably be filed in other countries, in the interests of justice.

I’d like to congratulate Dr. El-Hojouj, as well as Dr. Zegveld, for this exciting result, which was followed up this week by a decision of the U.N. Human Rights Council declaring Libya to have violated Dr. El-Hojouj’s rights to physical integrity, liberty, and fair trial.  This case is particularly significant for Kiobel watchers, because it shows that the civil courts of the Netherlands – Shell’s home – like those of many other countries, are open to human rights cases even when there is little connection to the forum and the defendant is foreign.

A few weeks ago, the Bureau of Land Management (BLM) proposed new rules for energy companies involved in hydraulic fracturing, or “fracking”, on federal and tribal lands. The new rules include new regulations on reporting, and require companies to obtain approval before drilling. In addition, the rules require that companies disclose the toxic chemicals they use in the process – but only after the drilling is complete. Obviously, communities who are concerned about the effect of toxic chemicals on their groundwater would much prefer to see this information before drilling starts.

Fracking is a natural gas drilling technique, popular in the United States and, increasingly, abroad, which relies on the injection of large volumes of chemical cocktails, along with water, into the earth. The injection causes fractures in deep layers of rock, which allows otherwise unattainable reserves of oil and natural gas to be extracted. Communities and environmental advocates are concerned about the public health and environmental impacts of fracking, which were examined in the documentaries Gasland and Split Estate and are increasingly making headlines.

The BLM’s proposed rule on disclosure has disappointed environmentalists. An earlier draft of the rules, leaked to the media, had proposed that companies disclose their use of chemicals 30 days before beginning a project. The proposed rules were softened after closed-door meetings at the White House with oil and gas industry lobbyists and individual corporations, including ExxonMobil, XTO Energy, Apace, and Samson Resources, who were concerned that the paperwork involved with prior disclosure would slow down the process and reveal their trade secrets.

The administration's change to the proposed rule is a concession to industry concerns for greater and faster output, in spite of communities’ concerns for the safety of their groundwater. The proposed rules are currently open for public comment.

Here at the EarthRights School Burma, we’re constantly adapting our curriculum to match the evolving situation in Burma. In the past year, ERSB has made some significant changes to the material in order to better equip students with the skills and knowledge to become powerful earth rights advocates for Burma.

Our government class now focuses more on free and fair elections, and includes greater discussion of the students’ experience with past elections. There will also be a greater emphasis on transitions to democracy, where the students will look at recent case studies and use the concepts they learn to analyze what is now happening in Burma.

Studying elections at ERSB

A greater emphasis will be put on civil society’s ability to influence change. Students will not only share their own experiences with advocacy strategies and their successes, but they will also have the opportunity to examine the recent successful campaigns to stop the Myitsone Dam in Kachin State and the coal-fired power plant in Dawei. They will also become familiar with large development projects still underway in Burma, such as the Shwe oil and natural gas pipelines.

With Burma scheduled to become the ASEAN chair in 2014, our human rights class will delve deeper into regional legal institutions within ASEAN, like the ASEAN Intergovernmental Commission on Human Rights. We will also bring in local experts to discuss their experiences conducting human rights documentation.

This year the students will use their reports for advocacy purposes because, while the recent changes in Burma have been positive, it is important to remind people that there are still ongoing earth rights abuses occurring throughout the country. Many of our students are from ethnic areas that have yet to see significant change, where human rights violations and environmental destruction are still common.

On Friday, May 11, 2012, the Fourth Circuit Court of Appeals, sitting in a rare 14-judge en banc panel, determined that claims can move forward in the Al-Shimari and Al-Quraishi cases against two private military contractors (L-3—formerally Titan—and CACI) alleged to have tortured and abused the plaintiffs at Abu Ghraib and other detention centers. In so doing, the Fourth Circuit nullified an earlier three-judge panel decision that both dismissed the cases and threatened to impose an expansive and dangerous limit on the ability of victims of abuses by military contractors to use state laws to seek a remedy for the harms they have suffered.

The Al-Shimari and Al-Quraishi cases stem from allegations of torture at notorious Iraqi prisons such as Abu Ghraib. The 76 plaintiffs alleged that the private military contractors, through their employees, agents, and government co-conspirators, deprived the prisoners of basic necessities, beat them, ran electric current through their bodies, subjected them to sexual abuse, humiliation, and traumatizing mock executions.

At the district court level, the contractors raised a number of different arguments to attempt to have the cases dismissed, including arguments that the contractors should be given the same immunities afforded the U.S. military, that the case raised nonjusticiable “political questions” meant for the executive branch alone, and that the state law tort claims were preempted under the doctrine of foreign affairs preemption for their interference with the federal government’s conduct of the war in Iraq. These types of arguments raised by the defendant contractors, if accepted, would dangerously limit the remedies available to victims of abuse by military contractors in the future.

While these arguments were rejected by the district courts in both cases, a divided three-judge panel of the Fourth Circuit accepted the appeal, and dismissed the cases for a variety of reasons, including through the application of a grossly expansive interpretation of the preemption doctrine.

There is a void in my daily routine that only 16 crazy lawyers could fill.

It has been about a week since we closed the 2012 session of the Mekong Legal Advocacy Institute, and with the e-mail and Facebook comments being exchanged, most of us are clearly still recovering from the high of living with newfound family for two weeks; or in my case, from the highlight of my nine months with ERI.

My colleagues and I had spent most of the preceding month preparing to train public interest lawyers from the Mekong region – making travel arrangements, communicating with resource persons, preparing a living space for the participants.

Our shared goal was to create a meaningful program, but my personal goal was to make it an experience that all the participants will cherish. I may have ended up cherishing it much more than they did. I keep thinking of the highlights of the two-week training, and I’m reminded of how it has, to me, been symbolic of the path of legal practice I’ve chosen – intellectually challenging, profound and out-of-the ordinary, but above all just joyful and inspiring.

A handful of memories stand out:

Recently, Bobbie and I went with Sor Rattana, a Thai lawyer and member of the Mekong Legal Network (MLN), to several provinces along the Mekong river in the Isan region (the northeastern part of Thailand) to observe her consultations and information sharing with communities on the proposed Xayaburi dam in Laos. The controversial project, which is yet to be completed, would be the first dam on the lower Mekong River, and is the result of a power purchase agreement between the Electricity Generating Authority of Thailand - EGAT (the buyer), the Lao government (the seller), and Xayaburi Power Company (the generator).

Sor's consultations were aimed at advising the communities and villagers on the current situation of the Xayaburi dam, and preparing for litigation as requested by the potentially affected communities. Sor’s organization, the Community Resources Centre, is preparing a case against EGAT in the Thai administrative court. As Bobbie previously noted, there are numerous concerns about the potential impacts of this project, including transboundary environmental impacts in Thailand, and a lack of public information disclosure, consultation and participation before the agreement was made.