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One Friday afternoon in October 2004, Anvil Mining employees transported a Congolese army detachment in company plane to Kilwa, a copper mining town located near Anvil’s Dikulushi copper mine, which had come under the control of a small group of poorly armed men who had explicitly announced they did not intend to stop the company’s mining activities.  Over the course of two days, Anvil employees drove the soldiers around Kilwa in Anvil cars while they slaughtered townsfolk, burned their houses, and buried them in mass graves.  When the smoke cleared, over eighty civilian Kilwans were dead. 

On January 24, three judges on the Québec Court of Appeals informed the representatives of the victims that the courts of Canada are closed to their claims for redress.  (The judgment, in French, is available here.) 

As I described in a previous post, the victims of the Kilwa massacre sought justice in Congolese and Australian courts for years.  A Congolese military tribunal acquitted several defendants (including three company employees) of all responsibility for the killings after a trial marred by internationally criticized irregularities.  Australian lawyers who initially took on the case with the intention of suing Anvil at its headquarters in Perth ended up dropping it due to intimidation through costly procedural maneuvers, and interference by D.R.C. officials who prevented them from meeting their clients. 

The Lago Agrio plaintiffs’ increasingly complex struggle for justice against Chevron, and for a cleanup of their rainforest home, has taken a new turn. Last Thursday, the plaintiffs submitted a request to the Inter-American Commission on Human Rights, requesting precautionary measures to ensure that Ecuador enforces the multi-billion dollar judgment that its courts have rendered against Chevron. The plaintiffs argue that their rights to life, physical integrity, health, fair trial, and judicial protection are being placed in imminent danger as a dispute between Chevron and Ecuador  before a private investor-state arbitration panel—in which the plaintiffs themselves are not permitted to participate—threatens to impede the enforcement of that judgment. 

Why are the plaintiffs, who have won in the Ecuadorian courts, now going after the Ecuadorian government in the Inter-American Commission? The answer lies in the structure of international law, and the steps that Chevron has taken to abuse its processes and its principles.  

Since 2009, Chevron has sought to avoid paying for a cleanup by attacking the Ecuadorian judicial process outside of Ecuador. In addition to asking the U.S. courts to prevent enforcement of the judgment (which a U.S. appeals court recently refused to do), Chevron also appealed to a forum that was likely to be more hospitable to corporations: an international arbitration panel. A treaty between Ecuador and the U.S., known as a Bilateral Investment Treaty (BIT), allows U.S. investors in Ecuador to bring a dispute with the government to a panel of three private arbitrators, who are typically commercial lawyers who serve as arbitrators in a (very well-compensated) side business.  

Are wild claims “facts”?  Oil companies would like you to believe so.  Spend some time perusing the avalanche of submissions that oil and gas companies have sent into the Securities and Exchange Commission (SEC) trying to water down forthcoming rules requiring them to publish their payments to the governments where they operate, and you’ll notice that they have one thing in common: a nearly complete lack of facts to back up their wild claims.   

EarthRights International (ERI) advocates for strong rules because our community partners in Burma and elsewhere want to use payment information to hold their governments accountable for the wealth received from resource extraction.  But the companies complain that if they have to disclose their payments as Congress has mandated, they’ll lose contracts to less transparent competitors and could be forced to violate foreign restrictions on disclosure.  Their lawyers and lobbyists have done their job well – nothing keeps regulators off your back like an appeal to their fear of losing out to the Chinese or crippling American enterprise in uncertain economic times.  Yet their submissions are curiously devoid of evidence; instead of providing facts, the companies pose hypotheticals, speak in generalities, and float widely varying estimates of compliance costs with no explanation. 

Meticulous research by Publish What You Pay coalition (PWYP) members has shown that these scare tactics are just smoke and mirrors.  When you place the companies’  claims next to the actual facts, it's clear that what Big Oil really fears is public scrutiny of its questionable dealings, rather than competitive injury to its operations.  The SEC must show that it's not “in bed” with Exxon and Chevron and their friends and issue rules that comply with the law. 

Faced with the threat of a lawsuit if they issue effective rules to implement a new law requiring oil, gas and mining companies disclose their payments to governments, the Securities and Exchange Commission (SEC) was hit today with a hilarious yet appropriate stunt by our friends from Oxfam America. The intended purpose of this pre-Valentine’s Day action was to draw attention both to industry’s high pressure tactics, and to remind the SEC that they are not clients of big business, but government agents tasked with drafting rules to implement laws passed by Congress.

More actions are planned in the near future, beginning next Thursday at Chevron’s Houston offices. Oxfam America, Global Witness and other human-rights and anti-poverty organizations also are planning to place ads in several news publications next week, including the print edition of The Wall Street Journal and web editions of the Hill, the Washington Post, Politico and the Huffington Post. 

Ian Gary, Oxfam’s Senior Policy Manager with their oil, gas and mining program discussed the purpose of the morning’s action: “Our campaign aims to send a strong message that we’re watching, and ready to fight back if the regulatory agency issues weak final rules.” The truth is that only rules that adhere to the law—meaning project-by-project disclosures with no exemptions—will produce information that will allow civil society and investors to evaluate secretive deals between extractive companies and governments, and ensure that people in resource-rich countries benefit from energy development. 

The oil industry, led by their lobby, the American Petroleum Institute (API), has made wild claims that they will lose hundreds of millions of dollars and be forced to break foreign laws if the SEC rules do not grant them exemptions that would, in reality, totally gut the new law.  Their claims are simply untrue, overstated, and unsupported. 

The Norwegian Government has been given a second chance to put its money where its ethical mouth is.  Earlier this week, a coalition of scientists, environmentalists, and Nigerian community representatives petitioned Norway’s Government Pension Fund to divest from Royal Dutch Petroleum, claiming that the company is violating the Fund’s Ethical Guidelines by causing severe environmental damage through oil spills in the Niger Delta.  Norway should accept the complaint and divest, or risk undermining its public commitment to responsible investment and breaching its own Ethical Guidelines.

The Fund, which is reported to be largest sovereign wealth fund in the world and an influential global investor, subjects its investments to an ethical screen that is meant to prevent Norwegian public money from financing human rights abuses, environmental degradation, war crimes, and the trade in certain destructive products like weapons and tobacco.

Norway’s Council on Ethics investigates companies in the Fund’s portfolio and, based on its research, can recommend divestment if there’s an unacceptable risk that the company’s activities will make the Fund complicit in unethical behavior.  However, the recommendation is not binding; the Norwegian Ministry of Finance can decide to ignore the recommendation entirely, or to prescribe other courses of action, like active shareholder engagement.

The system has often worked well.  The Fund has divested from a number of mining and timber companies based on human rights and environmental concerns; the list of excluded firms even includes Wal-Mart, which was pegged as a violator of labor rights.  It has also divested from arms dealers and tobacco manufacturers.  The Fund was even able to take a position on the Israeli occupation of the West Bank, excluding from its portfolio companies that it deemed to contribute to violations of the law of war.  In a number of other cases, where the Ministry was unwilling to divest completely, it agreed to put companies under observation or practice active ownership with the aim of inducing them to improve their objectionable practices.

Today, thousands of Peruvians are now participating in a "Grand National March for the Right to Water and Life." Many of the marchers are setting off from the lagoons of Cajamarca, or from the Amazonian jungle, or from the Southern Andes, marching hundreds of miles to arrive in the capital, Lima during the second week of February. The march seeks to broadly respond to a public policy in Peru of valuing a particular model of economic development over the health and wellbeing of communities adversely affected by that "development" — particularly when large resource-extraction projects threaten a community’s water supply.

The focal point for the march is the Conga project, a proposed gold mining operation in Cajamarca, which presents an emblematic example of many of the most salient issues to which the march seeks to respond. Here in our Peru office, we have been keeping a close eye on the development of the project and its opposition. The project was recently put on hold after public protests and a report prepared by the Ministry of the Environment called attention to the environmental risks associated with the proposal. Now, however, a new executive cabinet—formed in the aftermath of the political upheaval following the release of the Ministry of Environment’s report—seems likely to give the project the go-ahead in spite of a great deal of opposition from local civil society organizations and the regional government.

The march has quickly taken on a much broader appeal. It is serving as a rallying point for similar concerns and a growing social movement opposing development policies that leave communities impoverished and sick. Coordinated activities are being organized throughout the country, including by farmers in the north, by those living in the southern highlands, and by organizations of indigenous peoples protesting the encroachment and contamination caused by petroleum companies in the Amazon,

A couple of weeks ago, I blogged about an Ecuadorean appeals court upholding an $18 billion dollar judgment against Chevron for massive oil pollution in the Amazon rainforest. The Court rejected Chevron’s arguments that the judgment was procured by fraud. Today, a decision by a federal appeals court in New York makes it more likely that this judgment can be enforced. 

Last year, fearing that it was going to lose in Ecuador, Chevron sued the plaintiffs in New York seeking a court order that would prevent the plaintiffs from trying to enforce any Ecuadorean judgment outside of Ecuador. Since Chevron no longer does business there, the judgment could not be enforced inside Ecuador.

A New York trial judge accepted Chevron’s arguments that the Ecuadorean proceedings were likely tainted by fraud, and issued an order barring the plaintiffs’ lawyers from enforcing any judgment, at least until Chevron’s fraud allegations could be tried in New York. Then, back in September, the appeals court overturned that trial court order, but it did so without issuing an opinion explaining its reasons, so the parties did not know precisely what the court of appeals had decided. 

Today, the court issued its opinion. It held that the New York law under which Chevron sued only determines if a foreign judgment can be enforced in New York; a New York court lacks power to determine whether a foreign judgment is enforceable anywhere else. Therefore, the trial court was not authorized to order the plaintiffs not to enforce the Ecuadorean judgment outside New York.  

Chevron, of course, will still try everything else it can think of to prevent the judgment from being enforced. We’ll keep you posted.

This guest post was contributed by Emily Ponder, a legal intern in our US office. Emily is a first-year law student at the University of Virginia School of Law.

Everyone knows that oil is a dirty business, but tar sands oil may be the dirtiest. That is why environmentalists, indigenous groups, and small-town Nebraska famers alike are celebrating President Obama’s rejection of the Keystone XL pipeline Jan. 18.

The tar sand oil extraction process and its transport poses serious health and environmental hazards, and the Keystone XL pipeline would have made 2,000 miles of land—and communities—vulnerable to its destructive risks.

The energy-intensive process of extracting tar sands emits three times more carbon dioxide emissions three times higher than the extraction of conventional oil. [Edit: As noted in the comments, this refers only to emissions during extraction, which is a small percentage of total emissions. However, because of these high extraction emissions, the "well-to-wheels" emissions of Canadian tar sands are still the highest of US oil sources, 16.5% higher than the baseline and 22% higher than domestic crude oil.] What’s more, extraction of the tar sands oil in Canada, at the head of the pipeline, poisons water downstream with chemicals such as cyanide and anomia. Indigenous communities downstream from extraction sites in Alberta have seen an increase in rare cancer, renal failure, lupus, and hyperthyroidism.

At the other end, refineries in Texas would have increased air pollution, making communities vulnerable to respiratory problems and lung disease, not to mention high levels of smog and acid rain.

When an Ecuadorean appeals court in Sucumbíos upheld an $18 billion judgment against Chevron earlier this month, I happened to be passing through Lago Agrio—the famed location of the oil contamination at issue in the case. As we took the highway out of town, we followed the path of the oil-pipeline that snakes its way southwest, towards Quito. “The government does more to protect the pipeline than it does to protect drivers,” my guide informed me as we headed east.

I wasn’t surprised. In fact, the purpose of my trip southeast of Lago Agrio was to visit another project that is wholly supported and driven by the Ecuadorian government, and that has little promised benefit for the people, or the forests and rivers, in its path. This project is the massive Coca Codo Sinclair hydroelectric dam.

Anticipated to be the largest hydroelectric project in Ecuador, the dam is highly controversial. The project is estimated to affect more than 2,000 people and flood an area of 3 square kilometers of a delicate Amazonian basin.  The project could also potentially bring to a trickle Ecuador’s tallest waterfall, the San Rafael falls.  Critics and experts in Ecuador also question the fact that the dam is being bankrolled with a $1.68 billion dollar loan from China to finance 85 percent of the construction and equipment. In turn, the state-owned Chinese company, Sinohydro Corp., was awarded the construction contract in a process that many regard as having been procured without proper bidding. 

In November 2010, Rick and I blogged about the Oklahoma constitutional amendment that would ban state courts from considering foreign law, especially Sharia (Islamic law), as well as international law. As Rick noted at the time, the amendment was very likely unconstitutional.

This week, the U.S. Court of Appeals for the Tenth Circuit, which has jurisdiction over Oklahoma and is generally a fairly conservative court, confirmed that the amendment is unconstitutional. The court's opinion determined that the plaintiff, a Muslim (and U.S. citizen) living in Oklahoma, was stigmatized by the amendment, and that it therefore violated the Constitution's prohibition on religious discrimination.

Interestingly, the court's decision strikes down the amendment, but does not address anything beyond the Sharia ban. The Tenth Circuit didn't consider whether it was permissible to prohibit state courts from considering foreign law generally, or from considering international law.

That means this issue will probably come up again. Similar laws are being considered all over the country, and smart legislators will probably avoid specifically targeting Islamic law in the future. So another court will need to decide whether a general prohibition on considering foreign law or international law is constitutional; Rick and I think it clearly isn't.