Legal

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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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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