Legal

"Our Voices Will Be Heard" – A Complaint to the Malaysian Human Rights Commission against the Developer of Don Sahong Dam

Community members join NGOs in filing a complaint against Mega First with the Malaysian Human Rights Commission.

“My name is Sem Vorn. I come from Koh Dambang village in Kratie province in Cambodia. I am indigenous Kuy and I am here today to express my deep concerns about the impacts of the Don Sahong dam on our fish and livelihoods.”

With this statement, Mrs. Sem Vorn, one of the Cambodian community members who travelled to Kuala Lumpur this week together with her Thai counterparts, appealed to the Malaysian Human Rights Commission (SUHAKAM) to accept the complaint against Mega First Corporation Berhad, a Malaysian developer of the Don Sahong dam, being built in Laos, less than two kilometres form the Cambodian border.

Community members join NGOs in filing a complaint against Mega First with the Malaysian Human Rights Commission Community members join NGOs in filing a complaint against Mega First with the Malaysian Human Rights Commission

If built, this dam, which will be 32 m high with an installed capacity of no more than 260 MW, will entirely block the Hou Sahong channel, which is the main channel that allows for year-round downstream and upstream fish migrations. This is very likely to cause irreversible harm to downstream and upstream fisheries, seriously affecting the lives, livelihoods and health of millions of people in Laos, Cambodia, Thailand and Vietnam. The planned dam will also be located in a biodiversity hot spot, known for its iconic, but critically endangered, Irrawaddy dolphin population.

Yet the affected communities in Cambodia and Thailand received little or no information about the project and its impacts and were not provided with a meaningful opportunity by Mega First to have their voices heard . . .

Internship Opening: U.S. Office Paralegal Research Intern

EarthRights International, a nongovernmental, nonprofit organization that combines the power of law and the power of people in defense of human rights and the environment, is seeking a U.S. undergraduate or post-graduate intern for our Washington, D.C. office.

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Internship Opening: U.S. Office Science and Earth Rights Intern

EarthRights International, a nongovernmental, nonprofit organization that combines the power of law and the power of people in defense of human rights and the environment, is seeking a U.S. undergraduate or post-graduate intern for our Washington, D.C. office.

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Book Review: Law of the Jungle by Paul Barrett

I’ve just finished reading Paul Barrett’s new book, Law of the Jungle: the $19 billion Legal Battle Over Oil in the Rain Forest and the Lawyer Who’d Stop at Nothing to Win. Barrett’s book is about the Chevron/Ecuador saga, with a particular focus on Steven Donziger, the attorney that has represented the Ecuadorian villagers in their struggle to hold Texaco (now Chevron) accountable for the environmental destruction left behind by the company’s operations in the Ecuadorian Amazon.

In 2011, after nearly 20 years of litigation in the U.S. and Ecuador, an Ecuadorian court ordered Chevron to pay over $18 billion (later reduced to $8.65 billion) to remediate the environmental damage. Chevron, however, responded by filing a lawsuit in New York against the Ecuadorians and their lawyers, arguing that the attorneys had committed fraud and racketeering (under the RICO statute) in the Ecuadorian litigation. After a bench trial (heard by a single judge rather than a jury), in March 2014, the court issued a judgment in Chevron’s favor (“the RICO judgment”), finding that Donziger had obtained the Ecuadorian judgment by fraud and that the Ecuadorian judiciary as a whole was not impartial and its rulings need not be respected. Donziger and the Ecuadorians have appealed the RICO judgment to the Second Circuit Court of Appeals.

I’ll be up front about the fact that I am not an unbiased reviewer, although I’m going to do my best to be fair. As a new lawyer, some of my first litigation experience was representing the First Amendment rights of advocacy organizations and activists who had been the target of abusive discovery by Chevron in its battle against the Ecuadorian judgment. I also recently helped draft an amicus brief to the Second Circuit in support of Donziger and the Ecuadorians in their . . .

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 . . .