Legal

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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Hobby Lobby decision makes it more difficult to regulate corporate behavior and protect actual human beings

In a sharply divided decision, the Supreme Court added religious rights to the ever-expanding list of rights possessed by for-profit corporations. In an opinion authored by Justice Alito, the conservative wing of the Court concluded in Burwell v. Hobby Lobby, that certain for-profit corporations cannot be required to provide contraception coverage under the Affordable Care Act (ACA) where doing so is against the religious beliefs of their owners. In a scathing dissent, Justice Ginsberg described the majority opinion as one of “startling breadth,” which would allow commercial enterprises to opt out of laws they deem incompatible with their religious beliefs.

So now in addition to having the right to free speech absent a mouth to speak, many corporations now have religious rights absent a soul.  

According to the majority opinion, the purpose of extending constitutional and statutory rights to corporations is to protect the rights of living, breathing people.  Protecting the free-exercise rights of corporations “thus protects the religious liberty of the humans who own and control them.” Yet, incorporation serves to create an entity that has legal rights and responsibilities separate from the individual owners. This separation allows individuals to escape personal responsibility for the entity’s actions and obligations—so long as the owners and the corporation are actually separate.  

In the Hobby Lobby case, however, the Court ascribed the religious beliefs of the owners to the corporation itself.  This, Justice Ginsberg rightly noted, might lead one to wonder, “why the separation [of owner and corporation] should hold only when it serves the interest of those who control the corporation.”

Going forward, the Court’s holding – and particularly its view of “corporate personhood” – will undoubtedly be used by corporations to challenge a whole range of generally applicable laws on religious and perhaps other grounds. Although the Court . . .

Federal Appeals Court Revives Abu Ghraib Torture Case Against CACI

Last week, the Fourth Circuit Court of Appeals issued a landmark decision in Al-Shimari v CACI et al., reviving the case against the U.S. private contractor company accused of torturing Iraqi detainees at Abu Ghraib prison. The decision is precedent setting in a number of ways, but for EarthRights International’s (ERI’s) cases, the most significant aspect is the Fourth Circuit’s interpretation of Kiobel v Royal Dutch Petroleum (Shell) and what it means for future Alien Tort Statute (ATS) claims. In holding that the Iraqi plaintiffs’ ATS claims were not barred by the Supreme Court’s decision in Kiobel, the Fourth Circuit recognized the significant U.S. interest in preventing the U.S. from becoming a “safe harbor” for torturers and other “common enem[ies] of mankind” and ensuring that U.S. citizens – corporations and individuals alike – are held to account for violations of international law.

To recap, in its April 2013 Kiobel decision, the Supreme Court ruled that the ATS is presumed not to apply in cases where conduct occurred outside the U.S. unless the claims “touch and concern” the United States with sufficient force.  Since Kiobel, we’ve seen some courts treat the decision as a categorical bar against all ATS claims based on conduct that occurred abroad, regardless of whether there were other connections to the U.S. – such as where the defendant is a U.S. citizen. As I’ve previously explained, that’s what the district court did in dismissing the Al-Shimari case. 

On appeal, however, the Fourth Circuit expressly rejected the district court’s interpretation of Kiobel, holding that cases where conduct occurred abroad are not categorically barred. Only Justices Alito and Thomas, writing separately to concur in the Kiobel decision, had embraced a standard that would allow ATS claims to proceed only where the . . .

National and International Civil Society Organizations Sign A Letter of Solidarity with Colombia's U'wa People

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Today, 27 organizations (including ERI) from 8 different countries signed on to a letter of support in solidarity with the U’wa people of Colombia. U’wa leadership will present the letter to Colombian authorities today during a meeting they have scheduled to discuss their opposition to oil and gas extraction in their ancestral territory.

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Shell May Have to Compensate Villagers for Oil Damage from Sabotage or Theft

The Niger Delta region of Nigeria is crisscrossed by thousands of miles of pipelines that leak oil with tragic frequency, contaminating waterways, destroying wildlife, and harming the health of local communities.  But the sprawling network that makes the companies so much money is also a target for sabotage and bunkering, a widespread practice in which people illegally tap into pipelines to siphon off some of the oil for themselves.  When oil leaks and causes environmental harm as a result of bunkering, does the oil company have to pay?

Last week, a British judge gave an intriguing answer: usually no, but sometimes yes.

The issue is particularly important for Shell, the international oil giant that dominates Nigeria’s petroleum industry.  Almost every time a Shell pipeline leaks, Shell blames sabotage and bunkering and insists that it has no responsibility because criminals caused the rupture.  (According to Amnesty International, a higher percentage of Shell’s leaks may be due to the poor state of repair of its pipelines than the company admits, but that the company is able to fudge its numbers because it dominates the process of investigating and reporting on its own oil spills.) 

Advocates for Niger Delta communities, on the other hand, insist that bunkering is a predictable consequence of doing business in the way that Shell does.  Shell installed pipelines for its own benefit, knowing they’d be an irresistible temptation for theft.  If Shell can’t prevent sabotage or bunkering in the first place, then it should compensate impoverished, contaminated communities when thieves cause oil spills, rather than leaving the victims with no recourse.

In Bodo Community v. Shell Petroleum Development Company of Nigeria Limited, a Nigerian community is suing Shell in the British courts over the damages caused by two massive oil spills.  Shell has already admitted . . .

Should business corporations have constitutional rights?

Sometime in the next week, the U.S. Supreme Court will decide Sebelius v. Hobby Lobby Stores, in which one of the key issues is whether a corporation such as Hobby Lobby can object to federal healthcare legislation on the grounds that mandating employee contraception coverage violates the corporation's right to religious expression.

I don't pretend to know how the Supreme Court will decide this case, but, like Citizens United before it, this one raises some fundamental questions about corporate rights, with far-reaching implications for ERI’s work in protecting communities around the world - should business corporations have any constitutional rights at all?

It's not a crazy question, when you examine the history of corporations and the fact that even within the context of corporations, most constitutional rights are exercised by people, not the "corporation."

History

Since so many of our Supreme Court justices are obsessed with original intent, let's tackle history first.

At the time of the framing of the Constitution, there were a few kinds of corporations that were recognized. The "corporation sole" was typically used for religious officeholders, to pass down church property from (for example) one bishop to his or her successor. Most other corporations were chartered by a governmental act, and were predominantly religious and educational institutions. Harvard College, for example, was chartered by the governor of the Massachusetts Bay colony in 1650 (and this charter continues to govern the university's status). Cities were deemed municipal corporations. And there were a few business corporations granted charters, such as the East India Company.

The idea of a general incorporation law - in which anyone could register a corporation without a governmental act - was pioneered by New York in 1784, but only in the context of religious institutions. It was not until 1795 that any state (in this case, North . . .

Radical Lawyering: Reflections on the Bertha Justice Institute’s 2014 Conference

“If you've come here to help me, you're wasting your time. But if you've come because your liberation is bound up with mine, then let us work together.” –Lilla Watson

The quote, especially with the backstory, evokes a clear picture of how to approach Movement Lawyering. Because even though Australian Aboriginal Elder Lilla Watson is credited with the quote, she feels discomfort with it being attributed to her alone, as it was born of a “collective process.” It has been used in numerous activist contexts, capturing the collaborative nature of being part of a social justice movement.

The quote was also included in one of the presentations of the 2014 Bertha Justice Institute’s Social Justice Conference, a partnership of the Center for Constitutional Rights (CCR) and the Bertha Foundation, which was created to train and support the next generation of lawyers and legal advocates working for social change. As a Bertha Fellow with EarthRights International (ERI), which is a partner with the Bertha Foundation in the Be Just Network, this was a great opportunity to see how my work fits into a broader movement. The conference focused on reflecting on radical lawyering 50 years after Freedom Summer, an important movement for social justice. In many ways, Lilla Watson’s quote captures the collaborative approach of our work at ERI, as it does in many social justice movements. It was echoed in the points raised throughout the conference, where we learned theories and practical application skills on how to be an effective advocate for social justice. A “radical lawyer.”

In the morning talk, Bill Quigley, long-time activist and law professor and Director of the Law Clinic and the Gillis Long Poverty Law Center at Loyola University, framed his discussion around the elements of social . . .