Legal

Court Holds that Profits Don’t Trump Human Rights in Nestlé Case

Ivorian Children at a refugee camp in Liberia

This week, the Ninth Circuit Court of Appeals decided John Doe I, et al v. Nestlé, USA, et al. While the holding itself may not have been a game-changer, the court’s thoughtful analysis of the problems with the “myopic focus on profit over human welfare” offered some hope for corporate liability post-Kiobel.

The case was brought by three former child slaves in the Ivory Coast. Aside from 14-hour, 6-day workweeks with only scraps to eat, the children faced regular beatings and torture, and were locked up in tiny spaces. If they tried to leave, they risked, among other things, getting their feet sliced open. The plaintiffs accuse the defendants, Nestle USA, Inc., Archer Daniels Midland Company, Cargill Incorporated Company, and Cargill Cocoa, of aiding and abetting child slavery through their ongoing financial assistance and technological support. The companies “effectively control[ed]” the cocoa from the Ivory Coast, having exclusive buyer-seller relationships with many of these farms, and importing most of the Ivory Coast’s cocoa. The United States District Court for the Central District of California originally dismissed the case in 2010, holding that the defendant corporations could not be sued under the ATS, and that the plaintiffs had not alleged the elements of aiding and abetting. The dismissal was vacated, then that order was withdrawn and replaced with this decision.

While this case was on appeal, the Supreme Court handed down the Kiobel decision. Kiobel marked a change in ATS litigation by introducing a “touch and concern” test to decide whether plaintiffs can sue in a U.S. court for actions committed abroad. They do not clarify the test, but simply say that there is a presumption that statutes are not meant to apply outside of the U.S., and ATS claims must “touch and concern” the U.S. with “sufficient . . .

Justice Further Delayed in Apartheid Case

Last week, District Court Judge Shira Scheindlin in the Southern District of New York dismissed a twelve year old legal case brought by black South Africans against U.S. companies IBM and Ford. The plaintiffs are using the Alien Tort Statute (ATS) to hold U.S. corporations Ford and IBM accountable for complicity in Apartheid crimes. But there was every indication that she did so reluctantly, and with regret.

As a law student, I had the chance to work on this case before Judge Scheindlin. I was able to travel to South Africa to speak to dozens of brave individuals who described what it was like for them and their families to be deprived of their South African citizenship and forcibly moved from their homes to be placed in Apartheid regime constructed “homelands”. They explained to me how trucks would arrive one day and tell them and their family that they needed to leave; how they didn’t know where many of their family members were moved; how their South African ID cards were taken from them and they were forced to carry something called the “Book of Life” which relegated them to a “homeland” constructed by the Apartheid regime. The plaintiffs argue that the Book of Life – and its systematization - was more than an ID card, it was the product of a complex system developed jointly by the Apartheid regime and the American company, IBM and its subsidiaries, to operationalize the Apartheid project of forced denationalization. The Apartheid plaintiffs alleged that IBM provided this substantial assistance to the Apartheid regime from the United States. It was for this reason that the Apartheid plaintiffs came to the United States to seek justice; to send the message that U.S. companies who aid and abet violations of international law will . . .

What’s Next in the Chevron/Ecuador Legal Saga?

Chevron's oil pollution in Cofán Dureno, Ecuador: Community member Donald investigates one of the many unlined, open-air oil waste pits in his rainforest home.

Sludge Match: Inside Chevron’s $9 Billion Legal Battle With Ecuadorian Villagers,” Alexander Zaitchik’s recent article in Rolling Stone, is a fascinating look at the Chevron/Ecuador legal saga that dives into some of the more scandalous details that haven’t received much mainstream news coverage.  It is a must read for anyone who has followed the more than 20-year-long effort to hold Chevron accountable for environmental devastation caused by the company’s operations in the Ecuadorian Amazon. 

By examining both sides in the case’s sordid history, Zaitchik’s presentation stands in stark contrast to the way the business media has consistently simplified and obscured the narrative around the legal case. In particular, he discusses many of the morally, ethically, and legally suspect actions Chevron has been accused of taking over the years. Bribing key witnesses, pressuring co-defendants into settling and testifying on Chevron’s behalf, and tampering with the soil sampling process are just a few examples of the range of tactics Chevron is said to have employed to make the case against it go away.  I can’t help but notice the irony here: the retaliatory RICO lawsuit Chevron filed against attorney Steven Donziger and his Ecuadorian clients accused Donziger of similar wrongdoing, such as bribery and trying to pressure Chevron in to settling the environmental lawsuit.  

Earlier this year, Judge Kaplan decided the RICO case in Chevron’s favor, ruling that Donziger and his Ecuadorian clients had obtained the $9.5 billion Ecuadorian court judgment against Chevron by fraud. But Zaitchik’s article serves as an important reminder that Judge Kaplan’s decision is not the end of this extraordinary saga. The article’s summary of the writer’s discussion with ERI’s legal director creatively captures this:

Marco Simons, legal director of EarthRights International, notes a disorienting, mildly hallucinogenic

. . .

Defending the TIPNIS Indigenous Territory

Bolivia's Isiboro Sécure National Park and Indigenous Territory (TIPNIS), an indigenous territorial reserve home to more than 12,000 indigenous villagers, is under imminent threat from a major highway development project.

 Thirty-two miles of that project would tear through the heart of the TIPNIS, which  is home to three dwindling indigenous cultures — the Tsimanes, Yuracarés and Mojeño-Trinitarios. The park is also believed to be the home of indigenous peoples living in voluntary isolation.

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Bolivian Indigenous Leaders Bring Case Before the Inter-American Commission of Human Rights

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The Bolivian government is planning to build a major highway project through the Isiboro-Sécure Indigenous Territory and National Park (TIPNIS), an indigenous territorial reserve, without meaningfully consulting with the indigenous communities as required by international law. This week, ERI assisted Bolivian indigenous leaders in presenting a brief to the Inter-American Commission of Human Rights (IACHR) to challenge this major highway project that threatens to cut across a untouched national park that is home to thousands of Amazonian indigenous people in Bolivia. 

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Court sides with Chiquita, Delays Justice for Victims of Paramilitary Violence in Colombia

If the top executives of a U.S. company, sitting in a Board room in Ohio, approve and hide illegal payments to a terrorist organization, does it concern the United States? 

What if that company pleads guilty to the Department of Justice for the crime of paying the terrorist organization and then pulls out of the foreign country where the terrorists operate?  And if Congress says that foreigners can come into U.S. courts to seek justice for violations of international law, can that law encompass torture, war crimes and crimes against humanity committed by those same terrorists, if the abuses were committed abroad?

According to two appellate judges in Florida, no, no, and no.

The case in question is In re Chiquita Brands International, Inc., in which the family members of victims of Colombian right-wing paramilitary death squads are suing the banana company for paying and giving logistical support to the murderers. A paramilitary group called the United Self-Defense Forces of Colombia, or AUC (Autodefensas Unidas de Colombia) in Spanish, used Chiquita’s support to spread terror in the banana-growing region of Urabá, where it killed thousands of villagers, labor leaders, and community organizers, who were suspected of favoring leftist guerrillas or making trouble for the plantation owners.  Chiquita made a deal with the AUC: a 3-cent payment for each box of bananas shipped from the area.  These payments to the AUC were illegal under U.S. law, and Chiquita pled guilty and paid a fine to the Department of Justice in 2007.

The law at issue in yesterday’s decision is the Alien Tort Statute (ATS).  The ATS is an 18th-century law that opens U.S. federal courts to the claims of foreigners who have been harmed by violations of “the law of nations” – a category of international law . . .

Organizaciones internacionales presentan escrito ante Tribunal peruano impugnando el proyecto Conga

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Hoy, un grupo de prominentes organizaciones no gubernamentales dedicadas a los derechos humanos y los derechos ambientales, presentaron un escrito de amicus curiae (amigo de la corte) ante el Tribunal Constitucional en apoyo a la impugnación del proyecto Minera Yanacocha's Conga por la ONG Grufides.

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International organizations submit brief to Peruvian court challenging Conga project

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Today, a group of prominent non-governmental human and environmental rights organizations filed an amicus curiae (friend of the court) brief in the Peruvian Constitutional Court in support of the challenge brought by the NGO Grufides against Newmont Mining’s Conga mining project. The case presents the argument that the Conga project would violate the fundamental constitutional right to an adequate and healthy environment.

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Proposed Administrative Reforms in Peru Threaten to Undermine Already-Weak Environmental Protections

For the past few weeks, a few of us at EarthRights International’s Peru office have been spending hours researching, studying, and analyzing the international law requirements for sustainable development and environmental protection. Specifically, our focus has been on the international requirements for conducting, reviewing, and approving environmental impact assessments (EIAs). Our goal has been to produce an amicus brief challenging the way in which the EIA for Yanacocha’s Conga gold mine project was approved, to support a legal challenge to the project currently pending before the Constitutional Tribunal of Peru.        

The results of our research have been clear: international law requires that in order to protect the environment from irreversible harm that will hurt future generations, the review and approval of EIAs should be conducted by a government authority with sufficient independence to ensure that legitimate concerns for environmental protection are not ignored in favor of purely short-term economic considerations.

This level of independent scrutiny was completely lacking with the EIA for the Conga project. The Conga EIA was approved by the Ministry for Energy and Mines—the same government agency promoting the project—despite serious criticism by independent experts, including those at the Ministry of the Environment.

Outcry over this process with respect to Conga led to the creation of a separate government entity under the Ministry of the Environment called SENACE (which stands for Servicio Nacional de Certificación Ambiental para las Inversiones Sostenibles or National Service for Environmental Certification for Sustainable Investments) to review EIAs in the future. The changes are to be progressively rolled out throughout 2014, and Peru would ostensibly join the rest of the region in adopting a system in compliance with international law obligations. That is at least what we thought until last week.

On June 11, President . . .

EarthRights International and Amazon Watch File Amicus Briefs in Chevron Appeal

The latest chapter in the seemingly endless Chevron/Ecuador litigation began last week with attorney Steven Donziger and his Ecuadorian clients submitting separate appellate briefs to the Second Circuit arguing that the district court’s decision in favor of Chevron – ruling that Donziger and the Ecuadorians had obtained an Ecuadorian court judgment against Chevron by fraud – should be reversed.

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