Tag Archives: Alien Tort Claims Act

Latest Developments, October 1

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In the latest news and analysis…

State of hunger
A trio of UN agencies has released a new report suggesting that, despite a slight drop in global hunger, about an eighth of the world’s population is “still chronically hungry”:

“Despite the progress made worldwide, marked differences in hunger reduction persist. Sub-Saharan Africa has made only modest progress in recent years and remains the region with the highest prevalence of undernourishment, with one in four people (24.8 per cent) estimated to be hungry.
No recent progress is observed in Western Asia, while Southern Asia and Northern Africa witnessed slow progress. More substantial reductions in both the number of hungry and prevalence of undernourishment have occurred in most countries of East Asia, Southeastern Asia, and in Latin America.”

Torture suit
Courthouse News Service reports that dozens of Iraqi plaintiffs are suing an American company in a US court over alleged war crimes at the notorious Abu Ghraib prison:

“The surviving Iraqi detainees and representatives from the estates of the dead sued CACI Premier Technology and CACI International under the Alien Tort Claims Act and the Torture Victim Protection Act.
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Detainees have sued CACI in the past for alleged torture. In June 2013, a federal judge found that CACI cannot be sued for its alleged role in the torture of Abu Ghraib prisoners. The ruling relies on Kiobel v. Royal Dutch Petroleum, a recent Supreme Court decision in which the justices effectively immunized corporations from claims under the Alien Tort Statute by foreign citizens.”

Red light
A group of UN experts is arguing that a steel project owned by South Korea’s Posco “must not proceed as planned” in India:

The project reportedly threatens to displace over 22,000 people in the Jagatsinghpur District, and disrupt the livelihoods of many thousands more in the surrounding area.
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While India has the primary duty to protect the rights of those whose homes and livelihoods are threatened by the project, the experts underlined that ‘POSCO also has a responsibility to respect human rights, and the Republic of Korea, where POSCO is based, should also take measures to ensure that businesses based in its territory do not adversely impact human rights when operating abroad.’
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‘People should not be impoverished in the name of development; their rights must take precedence over potential profits,’ stressed the UN Special Rapporteur on extreme poverty and human rights, Magdalena Sepúlveda.

UN scolded
The Caribbean Journal reports that Saint Vincent and the Grenadines Prime Minister Ralph Gonsalves has said the UN’s handling of the cholera epidemic it caused in Haiti threatens the organization’s “moral authority and credibility”:

“Gonsalves said there was ‘no longer any scientific dispute’ that the UN was responsible for the outbreak, which has killed more than 8,000 people in Haiti and infected more than 600,000.
‘I continue to be deeply disturbed by the UN’s callous disregard of the suffering it has wrought in a fellow CARICOM country, and by the shameful, legalistic avoidance of what is a clear moral responsibility on the part of the UN,’ he said. ‘I call on Secretary General Ban Ki-moon to acknowledge unambiguously, and apologize for, this organization’s role in the tragedy, and to take immediate steps to compensate the victims and their families.’ ”

Climate refugee
Agence France-Presse reports on a man from Kiribati who is seeking refugee status in New Zealand due to the impact of rising sea levels on his native island:

“Legal experts consider the man’s case a long shot, but it will nevertheless be closely watched, and might have implications for tens of millions of residents in low-lying islands around the world.
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In a transcript of the immigration case obtained by The Associated Press, the Kiribati man describes extreme high tides known as king tides that he says have started to regularly breach Kiribati’s defences — killing crops, flooding homes and sickening residents.”

Dirty business
The Tyee reports that a murder in Mexico fits into a pattern of violence faced by people who oppose Canadian mining companies around the world:

“Far from an isolated event, this kind of story has played out across Latin America, Africa and beyond when Canadian mining firms set up shop. When, occasionally, violence at distant mining sites comes to the attention of Canadian investors or the public, corporate officers typically deflect responsibility onto ‘pre-existing conflicts’ — old rivalries or local power struggles given fresh fuel by the injection of mining money.
What we found in Oaxaca, however, was that those ‘pre-existing’ conflicts are far from petty or ancient feuds. Instead, they reveal serious and deep differences of opinion in affected communities about whether the kind of industrial development a mine offers is a driver for community benefit, or a threat to traditional culture and more sustainable livelihoods. As the lure of personal gain subverts authentic community priorities, local democratic processes are often among the first to fall victim.”

Naming & shaming
Voice of America reports that the International Labour Organization may have problems carrying out its plan to get a bit tougher with abusive garment factories in Cambodia:

Beginning in January, the ILO will publicly release information on factories that fail to comply with the most important elements of the country’s labor laws.
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‘In the last three years we’ve seen the factories’ compliance with the Labor Law has been declining – it’s getting worse. Working conditions are deteriorating. That’s not true in every factory, but on the whole this is what we’ve seen. And we’re returning to an old practice – something we did in the early years of the project – to create some gentle public pressure on factories to improve working conditions,’ said [the ILO’s Jason] Judd.
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As a result, [the Garment Manufacturers’ Association in Cambodia] will send letters to its members advising them that they are no longer obliged to let [ILO] inspectors enter their factories.”

Teeth required
SOMO writes that NGOs are “sceptical” about the Dutch government’s latest plans to improve the overseas behaviour of the country’s companies:

“What if companies do not want to cooperate and don’t stick to the agreements? MVO Platform feels that in addition to the commitment of the involved companies, monitoring and regulations from the side of the government will be necessary. The efforts should not be free of obligation and there should be supervision of the covenants. Companies that do not adhere to their agreements should experience real consequences, as should companies that are not entering into such agreements.”

The Defining Fight of Our Lives

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(The following Beyond Aid piece appeared in The Tyee last week with a different picture and a slightly altered title but is otherwise unchanged.) 

There is a saying where Vidalina Morales de Gámez comes from, that you can live without gold but you can’t live without a glass of water each day.

Where she comes from is El Salvador’s Cabañas region, which for much of the last decade has been the scene of a struggle between Vancouver-based Pacific Rim Mining Corporation and those who oppose the planned El Dorado gold project they say threatens already scarce water supplies.

The National Roundtable against Metallic Mining in El Salvador (La Mesa) member found herself in Vancouver this past weekend, six years into her involvement in the fight, standing on the southwest corner of Dunsmuir and Howe, the place her opponents call home, demanding that they stay out of hers.

“For us, it’s so difficult to come here,” she told The Tyee just after megaphoning her message in Spanish to a crowd that organizers pegged at a little under 200. “But they come to our land with such ease and do what they want. It’s unbelievable.”

Taking the fight to Pacific Rim’s turf, even on a Saturday when the offices were closed, was a bittersweet experience for the 44 year-old mother of five. It was a release, she said, but there was also fear.

“I felt nervous because they are watching those of us who are on the frontlines. So there is fear because of what’s happened in our country.”

Among those happenings are the unsolved murders of three anti-mining activists, alleged death threats against others and a multi-million-dollar lawsuit brought before a World Bank arbitration panel by Pacific Rim against the government of El Salvador for refusing to issue the required environmental permits. That legal battle entered a new phase last week.

The buck stops here
Morales’s battle was just one of many providing the inspiration for Shout Out Against Mining Injustice, a two-day Vancouver event hosted by the Council of Canadians “aimed at exposing the appalling environmental and human rights abuses of Canadian mining companies.”

The list of speakers included representatives of mining-affected communities from Chile to Northern Ontario, as well as environmental and human rights activists, a member of parliament and a union boss.

As the name suggests, Shout Out Against Mining Injustice was not about finding a middle ground on which to meet mining companies. Instead, the focus was on building international solidarity among communities affected by Canadian mining projects, as well as with a wider set of environmental and human rights allies.

The day before the Pacific Rim protest, the event kicked off with a demonstration led by members of the Tsilhqot’in Nation outside the offices of Taseko Mines Limited, where the company hoping to establish the New Prosperity mine in B.C.’s Cariboo-Chilcotin region was holding its annual general meeting.

In addition to such direct action, there was much discussion of injustices ranging from alleged assassinations to the destruction of sacred indigenous sites. A recurring theme in such accounts, apart from the depiction of Canadian companies as ignoring the rights of poor and indigenous populations, was the sense — as with both El Dorado and New Prosperity — that even when a government initially says no to a project, the local population cannot rest easy.

Given that three-quarters of the world’s mining companies have their headquarters in Canada, Maude Barlow, the national chairperson of the Council of Canadians, called the struggle for responsible mining “the defining fight of our lives.” And a number of panelists spoke of the ways, through investments and pensions, that average Canadians contribute to and benefit from mining profits.

“Your resources fund these companies, so you are co-responsible for legal action against them,” said Silvia Quilumbango, president of the Ecuadorean environmental group DECOIN, which recently helped bring an unsuccessful lawsuit in an Ontario court against the Toronto Stock Exchange for complicity in alleged human rights abuses by the now-delisted Copper Mesa Mining Corporation.

Effecting change
But of course, courts can only dispense justice as defined by the laws they are charged with upholding. And these laws, according to Sack Goldblatt Mitchell LLP’s Steven Shrybman, are increasingly stacked in favour of corporations.

The main culprit, as he sees it, is the vast and growing global architecture of “pernicious” international trade agreements that have emphasized corporate rights over responsibilities during the past two decades. A “patchwork” of about 3,000 such deals designed to “circumvent the domestic judicial process” has essentially created a de facto multilateral agreement on investment, despite that proposed pact’s apparent defeat back in 1998.

According to Shrybman, there are three potential pressure points for grassroots efforts to push for greater corporate accountability in the extractive sector: the companies, the federal government and the courts.

He advised “monkey-wrenching any dispute that you can,” citing his fellow panelists’ calls for a public campaign to shame Pacific Rim into dropping its lawsuit against the government of El Salvador.

But as a lawyer, he favours a “more systemic approach” than simply going after individual companies. Because he believes that courts can be affected by “noise” from the population, he thinks average Canadians can help “re-energize” domestic courts to take on corporate abuses committed abroad. He pointed to last week’s filing of a lawsuit by a group of Ecuadorans against Chevron in an Ontario court as a positive sign, even though neither plaintiff nor defendant is actually Canadian.

As for the government, Shrybman argued the ideal course of action would be for it to repudiate international trade agreements. But failing that, he sees Burnaby-New Westminster MP Peter Julian’s proposed bill C-323 as a step towards redressing “the grotesque imbalance between the rights of corporations and the rights of the state.”

Culture shift
Julian was also in attendance at the conference to discuss his bill, which is modeled on the U.S. Alien Tort Claims Act (ATCA), an arcane 18th century law that has been resurrected in recent years by lawyers trying to hold corporations to financial account for their actions in other countries.

But Julian knows he is swimming against the tide with his proposal. With the conservative-leaning U.S. Supreme Court set to re-hear arguments in a lawsuit brought by Nigerian plaintiffs against oil giant Shell, the ATCA itself could soon lose its new-found potential as a tool for punishing overseas corporate wrongdoing.

More immediately relevant to the Canadian context is the current make-up of parliament. Julian said he was “vilified” by Conservatives for his decision to attend Shout Out Against Mining Injustice. Indeed, in the House of Commons on Friday, Fort McMurray-Athabasca MP Brian Jean said Julian “should be ashamed of himself…Attacking the natural resources sector, he is attending a Council of Canadians conference that actually opposes the mining industry and Canadian companies around the world. The member for Burnaby-New Westminster is spending his weekend attacking trade and our resource sector.”

As a result of the prevailing political climate, Julian said he is not planning to push ahead with his bill “in the next few months,” as he sees little prospect of passing it at present. Nevertheless, he ended his speech with a short, big promise: “We will achieve mining justice in Canada.”

For that justice to extend to her tiny country, Morales believes Canadians may need to change more than their laws.

“In El Salvador, we don’t have the luxury of just going to the corner store or mall to buy what we need. We have to produce it,” she said, looking out a window onto Vancouver’s industrial waterfront, as though she needed a reminder of Canada’s fixation on economic growth. “I think that people here often don’t realize that or open their minds to seeing the world in a different way.”

Latest Developments, February 29

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In the latest news and analysis…

Pharma corruption
Reuters reports on global efforts to rein in corruption in the pharmaceutical industry, as multinational drug companies seek to expand their business beyond traditional markets.
“The drugs business is particularly exposed to corruption, Transparency International says: pharmaceuticals create vast opportunities for graft across both rich and poor countries. Its 2011 Bribe Payers’ Index ranks pharmaceuticals and healthcare 13th out of 19 industries on probity – a lower ranking than defense firms, though above mining and construction.
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Over the past year eight of the world’s top 10 drugmakers – Pfizer Inc, Novartis AG, Merck & Co Inc, Sanofi, AstraZeneca, GlaxoSmithKline Plc, Johnson & Johnson and Eli Lilly & Co – have all warned that they may face liabilities related to charges of corruption in numerous overseas markets.
Investigations into potential wrongdoing by pharmaceutical firms cover activities in countries including Argentina, Brazil, Canada, China, Germany, Italy, Poland, Russia and Saudi Arabia, according to company filings. They also involve possible improper conduct of clinical trials, which are increasingly being run in lower-cost Asian or East European countries.”

Sustainable development?
The Gaia Foundation has released a new report that highlights the rate at which global extractive industries have grown over the last 10 years.
“For example, iron ore production is up by 180%; cobalt by 165%; lithium by 125%, and coal by 44%. The increase in prospecting has also grown exponentially, which means this massive acceleration in extraction will continue if concessions are granted as freely as they are now.
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The rights of farming and indigenous communities are increasingly ignored in the race to grab land and water. Each wave of new extractive technologies requires ever more water to wrench the material from its source. The hunger for these materials is a growing threat to the necessities for life: water, fertile soil and food. The implications are obvious.”

Time limit
The Guardian reports the UK government plans to implement new rules that would require migrant workers earning less than £35,000 a year to leave after 5 years.
“Ministers hope changing settlement rights for skilled workers will put plans back on track to cut net migration from its current 250,000 a year to ‘tens of thousands’ by the next general election. They believe the £35,000-a-year earnings threshold will ensure only the ‘brightest and the best’ migrants settle in the UK. But critics say it will simply mean only the wealthy and the comfortable are able to come and live and work in Britain permanently.”

Power, Inc.
Foreign Policy’s David Rothkopf examines what it means to live in a world where large numbers of corporations have grown more powerful than most countries.
“Today’s corporations often conduct something very much like their own foreign policy. They launch active political advocacy campaigns, such as ExxonMobil’s lobbying to kill U.S. acceptance of the Kyoto Protocol. They undertake significant security initiatives, as in the company formerly known as Blackwater’s defense contracting during the Iraq war. They also provide health care, training, shelter, and other functions that states ought to but can’t or won’t provide.
The result is societies that are profoundly out of whack, with far too much power in the hands of massive, often distant corporate entities that are only accountable, fundamentally, to their shareholders. Meanwhile, the public is seeing that the increasingly weak institutions designed to give them a voice are unable to meet some of the most basic terms of the social contract, as the issues that need to be addressed are effectively beyond their jurisdiction.”

Remedy gaps
Haley St. Dennis of the Institute for Human Rights and Business argues the current US Supreme Court case pitting Nigerian plaintiffs against oil giant Shell is a “stark reminder” that voluntary corporate policies are not always enough to prevent environmental and human rights abuses.
“But clearly governments must be at the forefront in ensuring effective remedies. Under the state duty to protect, governments have an obligation to ensure access to justice through provision of effective judicial and non-judicial remedies accessible to all.
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It is safe to say that whether or not the Supreme Court finds in favour of the Kiobel plaintiffs, the need for more accessible forums for national or international redress to answer grievances unable to be remediated locally will remain a priority on the public agenda. Given the high threshold of evidence involving international crimes, tort laws such as [the Alien Tort Claims Act] and similar international processes, though often arduous, offer more accessible options.”

The cost of complicity
In a Q&A with Embassy Magazine, the University of Massachusetts Amherst’s Léonce Ndikumana discusses African capital flight which, he says, “kills babies.”
“We then look at the linkages between external flight and external borrowing. Statistically we find that for every dollar that comes into Africa, between 40 and 60 cents comes out of the continent in the form of capital flight. Africa keeps 40 cents, but Africa is going to have to pay the whole dollar, because it’s the debt that they signed.
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We emphasis the fact that capital flight is the result of mismanagement, corrupt management in Africa, but also complicity of foreign actors including banks that take this money being robbed from the continent and turn a blind eye and don’t ask any questions about a government official bringing a million to deposit.”

Creating new truths
J.D.M. Stewart, who teaches history at Toronto’s Bishop Strachan School, takes up the call issued by the Truth and Reconciliation Commission of Canada for the country’s students to be taught about the history of residential schools and their devastating impact on Aboriginal culture.
“As Mr. Justice Murray Sinclair, the TRC’s chair, wrote: ‘There is an opportunity now for Canadians to engage in this work, to make their own contributions to reconciliation, and to create new truths about our country.’ ”

Latest Developments, December 11

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In the latest news and analysis…

Better than nothing
Mother Jones reports on the “Durban Platform for Enhanced Action” which prevented the COP 17 climate summit from going down as a total disaster but leaves much still to be negotiated and done.
“While it’s notable that the US, China, and India agreed to creating a legal pathway, there was still concern from developing countries that too much burden had been shifted to them. China expressed concern that the developed nations were not doing enough. ‘It is not what is said by countries it is what is done by countries, and many are not realizing their commitments,’ said Xie Zhenhua, China’s lead negotiators. ‘We’ve been talking about this for 20 years, they’re still not being acted upon … We want to see your real actions.’”

Enabling corruption
A new report by the Bond Anti-Corruption Group calls on the British government to do more in preventing UK banks and companies from “fuelling and facilitating” corruption in other countries.
“The failure to act here in the UK when it comes to enforcing bribery laws and tackling dirty money has devastating effects on developing countries, undermining good governance and exacerbating poverty,” according to the Bond Anti-Corruption Group’s Melissa Lawson.

Business & human rights
The Institute for Human Rights and Business has released its Top 10 list of emerging business and human rights issues for 2012, among which is “providing legal redress for business participation in human rights violations.”
“For over a decade victims of human rights abuses around the world have turned to the U.S. Alien Tort Claims Act (ATCA) for redress in the form of monetary compensation. Of the over 100 cases filed (which include allegations of child abuse, providing support to or benefiting from security forces, and divulging the identity of Internet users), only a few have been admitted, and all have been dismissed or settled out of court.”

Not beyond aid
The Overseas Development Institute’s Jonathan Glennie writes a review of a recent speech given in London by economist Jeffrey Sachs whose thinking, it seems, has yet to move beyond aid.
“A notable omission from his hour-long speech was aid, traditionally a Sachs staple. The subject finally came up when a member of the audience asked him what he would tell western leaders to do to support development in Africa.
His answer focused entirely on aid: raise contributions to the Global Fund to Fight Aids, TB and Malaria; find better ways to deliver aid to agriculture and education. These are important areas, but there is a long list of weightier issues – capital flight, tax regimes, climate change and improved global business regulation, to name but a few.
One understands why Sachs always returns to aid. It is the easiest thing for rich countries to deliver – everything else requires genuine change rather than just reaching into the wallet. But he could at least say: “In the absence of the real changes required, let’s at least give aid.” He didn’t, which brought his appearance to a disappointing conclusion.”

Poverty & human rights
The International Council on Human Rights Policy’s Vijay Nagaraj marks Human Rights Day by making the case for increased attention to socio-economic rights.
“Sixty years ago, the United Nations affirmed the inherent dignity and the equal and inalienable rights of all members of the human family. Now is the time to recall those unassailable rights and to act on them in good faith and with strong conviction. For a start, the human rights community must push to ensure discrimination on the grounds of poverty (or economic status) is prohibited in human rights law, alongside race, colour, sex, language, religion, etc. The continued failure to recognise discrimination on the grounds of poverty is not only a failure to account for the real-life experiences of millions of people who experience it every day, but also reinforces the secondary status of socio-economic rights in mainstream human rights practice.
On this 10th of December, let us call for a paradigm shift in how we see and address poverty. A human rights approach calls on us to view poverty not as unwelcome collateral, temporarily inevitable or even a result of faceless, unstoppable economic forces, but rather as the result of acts of commission and omission and bad policy choices by political and economic elites. It is a problem of justice.”

Blame the parents
The Bureau of Investigative Journalism’s Nick Mathiason argues the necessity of “piercing the corporate veil” that allows large companies to use their complex corporate structure to avoid being held accountable for environmental and human rights abuses.
“Clearly, in financial reporting, a link between the parent and subsidiary is manifest. Yet company law treats every business entity as legally separate, even within the same ‘business family’. And this is where difficulties arise in seeking to hold a parent company accountable, even in instances where it knew of, or supported, the conduct of its subsidiary.
To remedy this, a corporate ‘duty of care’ principle needs to be established which states that, in the event of a parent financially benefitting from a subsidiary, it has a responsibility to ensure the subsidiary carries out duties in line with established laws. When the subsidiary fails to live up to required standards, the parent cannot hide behind a corporate veil but has to face legal liability.”

UN parliament
The World Federalist Movement’s Warren Allmand lays out his case for supporting the Campaign for a United Nations Parliamentary Assembly.
“The idea is to start with an advisory body at the UN that gradually transitions into a world parliament. Article 22 of the UN Charter allows for creation of ‘subsidiary bodies.’
National parliaments would second MPs to the UN parliamentary assembly in proportion to party standings. Unlike UN ambassadors, UN parliamentarians would not take instruction from national governments, but would be accountable to citizens, and mandated to act according to conscience and the common good.”