Blogs

Annie Leonard, blogging on the Huffington Post, recently asked her readers to view themselves as citizens first, not simply as consumers, and to push their governments to pass stronger regulations to protect human rights and the environment. Corporations, she argues, manufacture needs that don’t really exist, then blame consumer demand when their products are found to have been made using morally questionable practices. Obviously, consumers should choose sustainable products over those made using child labor, toxic chemicals, and other destructive actions, but the real changes won’t happen in the checkout line. The impact of a conscientous consumer, while not insignificant, is a fraction of the potential impact of a politically engaged citizen. Across-the-board changes to corporate practices will require us as citizens to demand sound regulations to curb corporate abuses of human rights and the environment.

"The problem with believing the best way to make change is by voting with our pocketbooks is that it defines us as consumers, not citizens. It implies that the most important choices are made in the supermarket aisles rather than in the halls of government and corporate towers."

So how does this citizen/consumer question tie into our work here at EarthRights? 

The cases we bring against corporations concern human rights abuses that have already occurred. In this sense, they are analogous to a consumer boycott: we learn about abuses that have already happened, and we take action to penalize the corporation for that abuse and bring justice to the affected community. Of course, we hope that the whole industry will take notice and adjust their practices, deterring all manner of abuses worldwide, but in the end we’re targetting one company at a time, over a single set of abuses, with cases that last decades and may or may not result in justice or meaningful change.

As I noted last week, the U.S. Supreme Court ruled in Mohamad v. Palestinian Authority that only human beings - not corporations or organizations - could be sued under the Torture Victim Protection Act (TVPA). Yesterday, the Supreme Court denied our petition for certiorari in Bowoto v. Chevron Corp., which means an end to that lawsuit.

The decision on the Bowoto petition was expected, because the only issue in the petition was whether corporations could be sued under the TVPA. The Ninth Circuit Court of Appeals had ruled that the Bowoto plaintiffs could not sue Chevron under the TVPA because it is a corporation, and ERI asked the Supreme Court to overturn this decision.

Bowoto arose out of a 1998 incident in which, after environmental protestors occupied an offshore Chevron oil platform, Chevron called in Nigerian military and police forces to violently attack and evict the demonstrators, killing two people and injuring many others. Unfortunately, after a jury found in Chevron's favor in a 2008 trial, this petition to the Supreme Court was the plaintiffs' last chance for a new trial.

What are the other implications of the Mohamad decision? The case considered only the question of whether the term "individual" in the TVPA could include corporations and other entities. As my colleague Jonathan noted in his recent radio interview, the decision is outrageous because it suggests that the Supreme Court believes that corporations can be individuals under circumstances that benefit the corporation, but not when it would lead to additional liabilities. In a previous case, the court had ruled that corporations were "individuals" when it allowed them to challenge a federal statute, because it would be "absurd" to limit such challenges to human beings; in Mohamad, the court found nothing "absurd" about limiting responsibility for egregious human rights violations to human beings.

The U.S. Supreme Court ruled today in Mohamad v. Palestinian Authority that the Torture Victim Protection Act (TVPA), which allows suits in federal court for torture and extrajudicial killing, only allows suits against human beings - not corporations or other entities.

We'll have more on this later, but among the impacts of this decision is one that hits very close to home here at ERI: the final appeal in Bowoto v. Chevron Corp., which also raised the question of suing corporations under the TVPA, now appears to be at an end.

However, because this decision was based on the particular text of the TVPA, it doesn't necessarily indicate anything about what the Supreme Court might do about corporate liability under the Alien Tort Statute (ATS) in the Kiobel case, which was heard the same day as Mohamad but will be reheard by the court in its next term.

Update: My colleague Jonathan was interviewed on WBAI about the Mohamad decision.

Last week, here in Peru, all eyes were on the release of the Regulation for implementing the new Ley de Consulta (Law on Prior Consultation for Indigenous Peoples).  Precisely because the new prior consultation law and its implementing regulation could present a potential vehicle for halting environmentally destructive and controversial megaprojects in areas that indigenous peoples call home, the law has generated much conversation and debate about when and how prior consultation should take place and who should be consulted. Yet, none of these debates has asked, nor answered, the question of what should happen when the very people who might be affected by a potential project have a right not to be contacted, thereby making prior consultation impossible.

Today, in the Peruvian Amazon, there are believed to be 14 different “pueblos” living in voluntary isolation or in a state of initial contact. As an expression of their autonomy and their history, these groups affirmatively choose to live in voluntary isolation, rejecting sustained contact with members of the national society in order to ensure their cultural continuity and survival. Indeed, the risk of massive health epidemics from contact alone presents a grave and formidable danger. There should be no question that these groups’ decision to remain in voluntary isolation should be respected. This is the case whether one is discussing the potential entry of an oil company into their territory or the seemingly benign endeavors of biologists, anthropologists or explorers who seek to contact or “modernize” these groups in the name of development or progress.

On the 8^th of March, International Women´s Day, and only three days after the Ecuadorian national government signed the country´s first contract for a large-scale mining project with the Chinese-owned Ecuacorriente (ECSA), citizens of Ecuador´s south east Amazon started their march to the capital. They performed an indigenous ceremony to launch their march to Quito along the banks of the Chuchumbletza River in the parish of El Pangui - the site of my own PhD fieldwork.

On the 22^nd of March, International Water Day, after two weeks of walking 700 km, thousands of marchers—including community members, indigenous people, farmers, women, students, environmentalists and workers—arrived in the capital to denounce the development of large-scale mining in the country. Human rights groups supporting the demands of the marchers called for the suspension of the large-scale project.

Ecuador’s President, Rafael Correa made several statements questioning the marchers’ legitimacy. He claimed the march to be a failure from the start. He claimed that the marchers were neither indigenous nor anti-mining, but individuals attempting to destabilize the government. He tried to show popular support for his government by calling citizens to a counter-march, leading to an encounter of marchers in the streets of Quito. Although Correa did not receive the marchers, the president of Parliament Fernando Cordero did meet with a group of leaders, heard their demands, and committed to consulting with them in May 2012 regarding the Water Resources Law.

Last week I had the privilege of attending a showing of Waking the Green Tiger: A Green Movement Rises in China, a documentary film about the environmental movement in China, focusing on protests surrounding the building of a dam on the Tiger Leaping Gorge, on the Upper Yangtze River in southwestern China.

The film tells the story of the movement through the eyes of activists, locals, journalists, and the former director of China’s Environmental Protection Agency, Qu Geping. Gary Marcuse, the director and producer of the film, did an outstanding job capturing both the future potential and the history of environmentalism in China, including archival footage from the reign of Chairman Mao.

Chairman Mao came to power with dramatic ideas for propelling development, convinced that man must conquer nature. Archival footage shows crowds of Chinese citizens being mobilized to bang pots, wave red banners, and make other forms of ruckus to force sparrows to fly all day. Fields where the birds might find refuge were laced with poisons, a trap leading to an agonizing death. The effort, however, would backfire: without sparrows to eat them, small insects thrived and destroyed millions of acres of crops, contributing to a decade-long famine and the deaths of tens of millions of people.

It wasn’t until 2004, with the passage of a new environmental law that allowed citizens to take part in government decisions, that China’s environmental movement really took hold. It was in this context that protests against the Tiger Leaping Gorge dam, and other dams along the Nu and Yangtze rivers, took place.

Recent reforms in Burma are leading policymakers in the E.U. and U.S. to consider whether and when to ease or eliminate longstanding economic sanctions against Burma.  The E.U. may in fact greatly reduce or entirely eliminate sanctions over the coming months, and the international community is looking closely at the fairness of the upcoming April 1st by-elections, when Aung San Suu Kyi and her National League for Democracy among other political parties are contesting a number of seats in the parliament as a barometer through which to view the pace and seriousness of reform efforts.

At this critical time in Burma’s history, international investors appear keen to enter the Burmese market to tap the country’s vast natural resources. However, lack of adequate laws and regulations, a weak and non-independent judiciary, and the continued violation of rights by local authorities and the military remain major obstacles to responsible development.  Without substantial institutional reform and implementation, both at the national, regional and local level, development may exacerbate risks to the people and environment of Burma, while only serving to enrich investors and well-connected individuals at the expense of the well-being of impacted communities.

Within this dynamic environment, the Burma Environmental Working Group (BEWG), of which ERI is a member, has issued its “Benchmarks for Responsible Investment in Burma’s Energy, Extractive and Land Sectors” to serve as a starting point for a framework for responsible and sustainable investment in Burma.   The following are BEWG’s five major benchmarks for investors:

Walk into your nearest Whole Foods or Trader Joe’s store and you may find that the purportedly environmentally and socially conscious chains are selling Chiquita bananas. Why is this surprising? Two concerns come to mind, one specific to Chiquita and the other a more general concern about large-scale banana production.

In 2007, Chiquita pled guilty to the charge of giving funds and other forms of assistance to paramilitary and rebel groups in Columbia from 1997-2004. One of the groups was recognized by the U.S. as a terrorist group in September 2001 -- three years before Chiquita stopped its payments. In that case, Chiquita agreed to pay a $25 million dollar, but they aren’t out of the woods yet: Columbian families represented by ERI and other counsel are still filing suit against the corporation for the deaths of relatives killed by Chiquita funded terrorists.

A second concern is the use of harmful pesticides on large banana plantations that stretch from Central to South America. In order to ensure that bananas reach the U.S. blemish free and perfect looking, large commercial growers spray their plantations with one of the highest pesticide loads compared to other tropical crops. The banana’s thick peel protects consumers from these pesticides, but they nonetheless pose serious risks to the workers and villagers where the crops are grown.

Earlier this week, the nation's largest environmental film festival kicked off in DC. Many of these films will go on to other festivals around the world, so I decided to scour the schedule and highlight the films that caught my eye, most of which intersect with the issues we work on here at EarthRights International.

Next Tuesday will be the world premiere screening of Deafening Silence, an exploration of ethnic conflicts and censorship in Burma. The film's director, Holly Fisher, interviewed our Executive Director, Ka Hsaw Wa, for her 2001 feature Kalama Sutta: Seeing is Believing and Holly tells me Ka Hsaw Wa makes an appearance in her new film, as well.

Also coming out of Southeast Asia is Waking the Green Tiger: A Green Movement Rises in China. The title is fairly self-explanatory, but I'm particularly excited about the details: the film focuses on a grassroots campaign to stop a huge hydropower dam on the Upper Yangtze River, which in China's Yunnan Province passes less than 30 miles from the Mekong River, the subject of much of our work in the region.

Bhopali, which will screen twice next week, looks at public health and poverty in the Indian city of Bhopal, which was devastated in 1984 by the worst industrial disaster in history. ERI is co-counsel for residents of Bhopal who are seeking damages from Union Carbide (now owned by Dow) for water contamination at the abandoned chemical plant, and resulting illnesses in their community. At its second screening, Bhopali will be paired with two other short films on the impacts of multinational corporations on local communities.

Do access to justice and accountability for grave abuses count when Canadian courts decide whether to consider a human rights lawsuit by foreigners against a company with operations in Québec?  The seven human rights NGOs, including ERI, who signed a public letter written by the International Corporate Accountability Roundtable (ICAR) hope that the Canadian Supreme Court will answer in the affirmative, and give the family members of the victims of a Congolese massacre a chance to seek justice in Canada.

In a blog post last month, I wrote about a devastating decision from the Québec Court of Appeals.  The court decided that Anvil Mining, which has an office in the province, could not be sued in Québec over allegations that it was complicit in crimes against humanity committed against inhabitants of the Congolese mining town of Kilwa.   As the signatories of the letter make clear, this decision closed an important avenue for the victims to seek justice for human rights abuses, brushing aside the fact that their attempts to hold Anvil responsible both in Congo and in Australia had been stymied by corruption, intimidation, and technical legal barriers.

According to the letter, it has recently been announced that Anvil was acquired by a Chinese metals company.  When Monterrico, a British mining company that was similarly being sued for human rights abuses in the U.K., was acquired by a Chinese company, the new owners decided to strip Monterrico’s assets from the U.K., which would have made satisfying a judgment next to impossible.  Fortunately, the British and Hong Kong courts issued freezing injunctions, requiring Monterrico to maintain assets sufficient to satisfy a judgment in the U.K. until the legal process was over. (In the end, Monterrico and the plaintiffs settled the case before trial.)