Tag Archives: Alien Tort Statute

Latest Developments, December 21

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Corporate liability
Lawfare reports the Obama administration has filed a brief with the US Supreme Court supporting Nigerian plaintiffs in the Kiobel lawsuit against oil-giant Shell, arguing corporations can be held liable under federal law for abuses committed abroad.  
“The brief –signed by State Department Legal Adviser Harold Koh and (somewhat surprisingly) by Commerce General Counsel Cameron Kerry in addition to Solicitor General Don Verrilli – argues that the question of corporate liability under the Alien Tort Statute is governed by federal common law, not by international law, although international law “informs” the issue.  And the brief goes on to argue that under federal common law, corporations may be held liable for violations of both domestic and international law: “[C]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’”  The brief states that the United States is not aware of any international law “norm” that would prohibit corporations from being sued for violations of international law.”

Nationalization
Agence France-Presse reports a provincial branch of South Africa’s ruling African National Congress party has voted in favour of a resolution calling for land expropriation and mine nationalization. 
“ ‘All productive land must be nationalised. Compensation must not be paid on the land itself but on improvements. The price must be determined by the state through the state evaluator,’ the party’s Limpopo provincial chairman Soviet Lekganyane was shown as saying by the eNews channel.
…
‘We reiterate our call for nationalisation of mines and other key strategic sectors like Sasol and ArcelorMittal,’ Lekganyane was quoted as saying by the Sapa news agency, referring to major oil and steel activities.”

Air battle
The Associated Press reports that an EU court has upheld a law charging airlines flying to Europe for their carbon emissions but a US trade group, Airlines for America, is vowing to continue fighting the “unilateral” and “counterproductive” measures. 
“The European Court of Justice in Luxembourg dismissed arguments that imposing the European Union’s cap-and-trade carbon credits program on flights to and from European airports infringes on national sovereignty or violates international aviation treaties. U.S. and other non-European airlines had sued the EU, arguing that they were exempt from the law.”

Selling development
The Institute of Development Studies’ Spencer Henson raises some concerns over NGO efforts to “sell development” by promoting the idea that buying certain products will benefit poor people half a world away.
“First, it is very much based on the notion of benevolence of the (powerful) rich towards the (powerless) poor. UK consumers can decide how to spend their money at Christmas whereas the poor have little money to spend on anything. Further, as a wealthy donor the consumer can decide who is ‘deserving’ of their charity, however they might judge this.
Second, and more importantly, efforts to sell development do little or nothing to challenge the very reasons that people are poor…and the need for benevolence by the rich in the first place. Thus, how is it that such global inequality exists, and what can be done about it? The act of buying a goat, a charity Christmas card or a handicraft fails to challenge the status quo. Some would even argue that buying development perpetuates the very systems that make people poor in the first place.”

IFI reform
PIMCO’s Mohamed El-Erian argues the economic convergence that is changing the previously Western-dominated global order is unpredictable and requires “deep reform of the multilateral system” and its institutions.
“Multilateral institutions, particularly the IMF, have responded by pumping an unfathomable amount of financing into Europe. But, instead of reversing the disorderly deleveraging and encouraging new private investments, this official financing has merely shifted liabilities from the private sector to the public sector. Moreover, many emerging-market countries have noted that the policy conditionality attached to the tens of billions of dollars that have been shipped to Europe pales in comparison with what was imposed on them in the 1990’s and early 2000’s.”

Food speculation
The Guardian speaks to a food expert whose research predicted the Arab Spring and forecasts high food prices will trigger global riots and revolutions in the next two years unless something is done to rein in speculation. 
“[The New England Complex Systems Institute’s Yaneer Bar-Yam] believes the time has come for global regulators to step in and manage the global market. Their first task would be to guarantee transparency and make public information previously shrouded in secrecy – such as who holds the biggest stakes in global commodities. Transparent accounting practices would have made the disappearance of $1.2 bn worth of customer money from the books of MF Global less a matter of sleight of hand and more a matter of international crime.
The second part of the speculation solution hinges on a return to traditional position limits in commodities, limits enforced by international laws geared to stop bankers, hedge funds and sovereign wealth funds from going long on the world’s food supply and, in effect, gambling on hunger.”

Charter cities
Oxfam’s Duncan Green expresses concern over the life-size radical experiment with charter cities Honduras is about to undertake. 
“On the basis of the Economist piece, at least, the Trujillo charter city looks like a mess. The government is going to bypass constitution, laws etc, outsource the lot to private interests and rely for good governance on a commission of overstretched VIPs. If the hyperactive [Center for Global Development president Nancy] Birdsall is typical, they will have so many other commitments that they really are not going to be able to invest the time to micromanage a potentially chaotic period of institution-building. I emailed Nancy about this and she replied that yes, there are big risks, but the world needs more experiments like this not least because ‘we don’t know in the development community how to ‘produce’ good governance’. She points out that there are resources, e.g. to pay at least one aide per member of the transparency board. But that still seems like a pretty skeletal arrangement and many of the criticisms I quoted in my original post apply in this case too. Got a bad feeling about this one.” 

Latest Developments, October 31

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New nuclear age
The Guardian reports on a new study suggesting countries that already possess nuclear arms are planning to spend large sums of money to upgrade their capabilities over the coming years.
“Despite government budget pressures and international rhetoric about disarmament, evidence points to a new and dangerous ‘era of nuclear weapons’, the report for the British American Security Information Council (Basic) warns. It says the US will spend $700bn (£434bn) on the nuclear weapons industry over the next decade, while Russia will spend at least $70bn on delivery systems alone. Other countries including China, India, Israel, France and Pakistan are expected to devote formidable sums on tactical and strategic missile systems.
For several countries, including Russia, Pakistan, Israel and France, nuclear weapons are being assigned roles that go well beyond deterrence, says the report. In Russia and Pakistan, it warns, nuclear weapons are assigned ‘war-fighting roles in military planning’.”

Dictator savings
Global Witness has welcomed a resolution adopted at last week’s UN anti-corruption conference that calls for national governments to enforce laws that forbid banks to accept money looted from the coffers of other states.
“Corruption on the scale that causes revolutions cannot happen without a bank to take the money. The very fact that some states are trying to get stolen money returned makes it clear that something has gone very wrong; these funds, which belong to the people of Egypt and Tunisia, should not be in foreign bank accounts in the first place,” said Global Witness’s George Boden.

Seal of approval
A new report by the Centre for Research on Multinational Corporations detailing labour rights violations on tea plantations owned by British-Dutch company Unilever raises “doubts regarding the reliability of Rainforest Alliance certification.”
“Civil society organisations have been urging tea companies for many years to address the precarious working conditions of millions of tea workers worldwide. In response, there is a clear trend of multinational tea packers indeed stepping up their efforts to address sustainability issues in this sector. To this end tea companies are increasingly making use of independent and more rigorous multi-stakeholder sustainability standard systems, such as Rainforest Alliance (RA), Utz Certified and Fairtrade, which are generally seen as best industry practice. As a consequence the share of world tea exports certified by global standard systems grew by 2000% in the period from 2004 to 2009 alone. It is estimated that roughly 15% of tea exported worldwide will have been certified in 2011. Now several years later this study is assessing whether there is evidence of improvement of the working conditions on tea estates that have achieved RA certification, the most important sustainability certification in the tea sector in terms of volume.”

Biopiracy
Al Jazeera reports on allegations that a subsidiary of US biotech giant Monsanto genetically modified Indian eggplant seeds without obtaining prior authorization.
“In response, the national biodiversity authority has announced its plans to prosecute Monsanto for carrying out this research without seeking its permission and the consent of hundreds of thousands of farmers who have cultivated these varieties for generations. Officials at the authority say that, by failing to consult with farmers and the national biodiversity authority, the multinational firm has run foul of India’s Biological Diversity Act 2002. The law states that, if companies want to genetically modify indigenous varieties of seeds and plants – for research or commercialisation purposes – they must obtain prior consent of the authority. That never happened, the national biodiversity authority says, so now Monsanto and Mahyco look set to face charges of biopiracy – a fancy word for theft. It will be the first criminal prosecution under the act if it goes ahead. Though brinjal is a vegetable that is now widely eaten and grown around the world, it is native to south Asia with more than 2,500 varieties.”

Colonization through investment
The Observer reports on the fallout of a biofuel bust in Tanzania, where a village leader speaks of “colonialism in the form of investment.”
“A quarter of the village’s land in Kisarawe district was acquired by a British biofuels company in 2008, with the promise of financial compensation, 700 jobs, water wells, improved schools, health clinics and roads. But the company has gone bust, leaving villagers not just jobless but landless as well. The same story is playing out across Africa, as foreign investors buy up land but leave some of the poorest people on Earth worse off when their plans fail.”

The right to food
A UN food expert is urging world leaders to put the right to food ahead of commercial interests at this week’s G-20 summit.
“The G-20 made an important statement of intent by placing food security at the top of its agenda. But agreeing on a food security action plan without addressing biofuels and speculation would be like running a bath without putting in the plug. All of the good ideas simply drain away,” according to UN Special Rapporteur on the right to food Olivier De Schutter.

Development 3.0
The World Bank’s Justin Yifu Lin argues for a third way in development thinking – in the wake of “structuralist, state-led” policies on the one hand, and “largely neo-liberal” ones on the other – and addresses critiques from three eminent economists.
“The credibility argument [that policies were not reversible] was used to support the shock therapy in the East European and Formal Soviet Union’s transition in the early 1990s. However, to ward off large unemployment and subsequent social/political instability, governments in transition economies were very often forced to provide other disguised and less efficient forms of subsidies and protection to firms in the old priority sectors even though those firms were privatized. As a result most transition economies encountered the awkward situation of ‘shock without therapy’.”

Business and human rights
In an interview with Business Ethics Magazine, John Ruggie talks about the voluntary guiding principles he formulated over his six years as UN special representative for business and human rights and the inevitable evolution towards legal accountability.
“Finally, judicial remedy will continue to evolve. Judicial reform in countries where the rule of law is weak and governments are corrupt is a slow process, but it is happening. And the web of legal liability for corporate involvement in egregious violations is expanding in the home countries of multinational corporations—a trajectory that will continue no matter how the U.S. Supreme Court rules on the applicability of the Alien Tort Statute to legal persons, such as corporations.”

Latest Developments, October 17

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Supreme moment for Alien Tort
The Associated Press reports the US Supreme Court has agreed to use a suit brought by Nigerian plaintiffs against Royal Dutch Shell to decide if corporations can be held liable in the US for alleged human rights violations committed abroad.
“The justices said they will review a federal appeals court ruling in favor of Shell. The case centers on the 222-year-old Alien Tort Statute that has been increasingly used in recent years to sue corporations for alleged abuses abroad.
Other cases pending in U.S. courts seek to hold accountable Chiquita Brands International for its relationship with paramilitary groups in Colombia; Exxon and Chevron for abuses in Indonesia and Nigeria, respectively, and several companies for their role in apartheid in South Africa.”

Drone growth
TomDispatch’s Nick Turse refers to military documents, press reports and “other open source information” to estimate the US is currently using at least 60 bases around the world for its drone operations, but he anticipates that number will increase as America’s reliance on unmanned aircraft grows.
“Earlier this year, an analysis by TomDispatch determined that there are more than 1,000 U.S. military bases scattered across the globe — a shadowy base-world providing plenty of existing sites that can, and no doubt will, host drones.  But facilities selected for a pre-drone world may not always prove optimal locations for America’s current and future undeclared wars and assassination campaigns.  So further expansion in Africa, the Middle East, and Asia is a likelihood.”

LRA love
Premiere Networks talk show host Rush Limbaugh slammed US President Barack Obama’s decision to send American troops to Uganda to fight the Lord’s Resistance Army, accusing him of wanting to “to wipe out Christians in Sudan” until additional information gave him pause.
“Is that right? The Lord’s Resistance Army is being accused of really bad stuff? Child kidnapping, torture, murder, that kind of stuff? Well, we just found out about this today. We’re gonna do, of course, our due diligence research on it. But nevertheless we got a hundred troops being sent over there to fight these guys — and they claim to be Christians.”

Thinktank transparency
Guardian columnist George Monbiot argues that thinktanks “are the means by which corporations and the ultra-rich influence public life without having to reveal their hand” and calls on them to disclose their sources of funding.
“The public sector is now so transparent that we have a right to read the private emails of climate scientists working for a state-sponsored university. The private sector is so opaque that we have no idea on whose behalf the people who appear every day on the BBC, using arguments that look suspiciously like corporate propaganda, are speaking.”

G20 inaction
Responding to the communiqué released at the end of last week’s meeting of G20 finance ministers in Paris, Global Financial Integrity has expressed disappointment at the apparent absence of any comprehensive vision for increasing the transparency and accountability of the world’s financial system.
“The Finance Minister’s communiqué fails to mention country-by-country reporting, automatic exchange of tax information, disclosure of beneficial ownership, or strengthening anti-money-laundering laws,” according to GFI director Raymond Baker. “These measures are key to creating global economic development, and financial stability. What we have here are piecemeal fixes to a systemic problem.”

Money on the mind
Author Dan Hind argues that people need to understand fundamental concepts, such as what money is, in order to have the “reasonable conversation” the established order fears more than riots.
“The problems we face are complicated, it’s true, but they are not as complicated as some would like to make out. We will begin to see how to solve them when we have a clear understanding of the fundamentals of social organisation, including the origins and nature of money.
It is an understanding that those who are currently powerful would rather we didn’t have. After all, as another great American ironist, Walter Karp, put it, “usurped power is only secure as long as it remains unregarded”. For too long, the banks have shaped the laws of economic exchange in private. Even in the midst of a debt crisis their privilege has so far evaded our understanding. It is time that it became the object of our steady and patient attention.”

Locals vs multinationals
Al Jazeera is airing a film entitled How to Stop a Multinational which focuses on the efforts of three activists who have successfully taken on a Canadian mining company in the Argentinian Andes and are now turning their attention to a Chinese one.
“Historically, this region’s never had enough water, so when a mining company comes to use 1,000 litres of water per second, we risk becoming a ghost town, disappearing, because it doesn’t make sense to stay in a town without water, and I don’t want to leave,” according to activist Gabriela Romano.
“I was born here, I love this land, and I will defend it.”

Legalize or die
The Globe and Mail’s Neil Reynolds argues for the legalization of cannabis, opiates, cocaine and “most other drugs” in order to stem the illegal trade’s growing violence in the Americas (15,000 deaths last year in Mexico alone), though he concedes that no country can go it alone.
“Assuming some international consensus for repeal, though, Canada has a number of retail models to contemplate. Assuming a government monopoly, it could regulate the drug trade through government-owned outlets (“beer and liquor stores”). Assuming a regulated industry, it could exploit existing pharmaceutical emporiums (“drugstores”). Assuming a more free-market approach, it could use corner-store outlets (“smoke shops”). All these establishments sell lots of government-regulated drugs already – most of them, when you think about it, for medical purposes of one kind or another.”

Latest Developments, August 11

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British Prime Minister David Cameron has said he would consider limiting social networking services such as Twitter and Blackberry Messenger in situations like the recent riots, a measure, as Reuters puts it, “widely condemned as repressive when used by other countries.” The Globe and Mail’s Ivor Tossell conveys a similar sentiment: “Cracking down on citizens’ communications in times of crisis would put Mr. Cameron in the company of a large and unsavoury bunch of autocrats.” Earlier this year, the UN’s top expert on freedom of expression, Frank La Rue called for “as little restriction as possible to the flow of information via the Internet” but warned: “Governments are using increasingly sophisticated technologies to block content, and to monitor and identify activists and critics.”

In other technology news, the US military test launched its Falcon Hypersonic Technology Vehicle 2 (HTV-2). The unmanned manoeuvrable aircraft, built to travel at 20 times the speed of sound, is part of the Pentagon’s Prompt Global Strike efforts that have involved “working for nearly a decade on an audacious plan to strike anywhere on the planet in less than an hour.” But for the second time this year, the device lost contact with ground stations and disappeared into the Pacific, a result described by the program manager as “vexing.”

Piracy is reportedly starting to become an issue off the west coast of Africa: “Piracy in the Gulf of Guinea has over the last eight months escalated from low-level armed robberies to hijackings, cargo thefts and large-scale robberies,” the Associated Press reports, citing Denmark’s Risk Intelligence. Over on the continent’s east side, piracy is old news but the Guardian’s Mark Tran reports it has become another factor complicating aid delivery to those affected by the Horn of Africa’s food shortage. To recap then, the list of problems cited since a state of famine was declared in parts of Somalia include lack of money (less than half of what the UN says it needs), lack of organization, uncooperative rebels, a government/AU offensive against said rebels, high food prices, draconian US anti-terrorism laws and a weak dollar. US Secretary of State Hillary Rodham Clinton announced an additional $17 million in emergency funding, of which $12 million will go to Somalia. Also heading from the US to Somalia is Richard “Colonel Sanders” Rouget, whom Wired describes as a “mercenary with a criminal record and possible ties to several African coups and at least one murder.” In the name of counterinsurgency, “America has endorsed, however indirectly, a man who for years has allegedly fought against stability, justice and self-governance in Africa,” according to Wired’s David Axe.

Fifteen years after Pfizer drug trials during the course of which 11 Nigerian children died, the first compensation cheques have been issued, with the families of four of the deceased each receiving $175,000. A Wikileaks document revealed Pfizer tried to dig up dirt on the attorney general in order to make him drop the case before finally agreeing in 2009 to a $75 million settlement.

The US Supreme Court may examine the question of corporate liability for overseas human rights abuses later this year in light of recent contradictory interpretations of the Alien Tort Statute by federal appeals court judges. Human rights lawyers say the majority of the rulings support their position, but US Chamber of Commerce lawyers argue international law “establishes liability for states and individuals, and not for corporations.”

Oxfam’s Emily Greenspan writes about the new social and environmental policies of the International Finance Corporation, which is “the private sector lending arm of the World Bank Group.” The new rules include a “precedent-setting requirement” that corporations looking to work on indigenous lands obtain “free prior and informed consent” from local communites, and an obligation for oil, gas and mining companies to disclose their contracts with host governments. It does not appear, however, that companies have to reveal their profits, as called for by Christian Aid’s Joseph Stead in order to discourage corporate tax avoidance as well as government corruption. Nevertheless, Greenspan hopes the new requirements “will set in motion a ripple effect among other international financial institutions, export credit agencies, companies, and governments, helping to reduce social conflict and increase transparency around large-scale development projects globally.”

Over the last week or so, there have been a number of articles describing last year’s passage of the Dodd-Frank Act – a piece of American legislation that includes a requirement for companies to prove the minerals they use have not exacerbated conflict in their country of origin – as a disaster  for the Democratic Republic of Congo, the very place it was ostensibly meant to help. A Businessweek article talks of a 90 percent drop in legal mineral exports over the last year and a David Aronson op-ed in the New York Times says: “Rarely do local miners, high-level traders, mining companies and civil society leaders agree on an issue. But in eastern Congo, they were unanimous in condemning Dodd-Frank.” But the Institute of Human Rights and Business’s Salil Tripathi calls these arguments “simplistic and wrong.” He says those who pushed for the kinds of measures contained in Dodd-Frank realized there would be some adverse short-term economic impacts but they see ending a protracted conflict as the ultimate goal: “Restrictions on conflict minerals alone won’t end unrest in the DRC. But not having any restrictions on products known to fuel conflict, ostensibly to preserve livelihoods for the country’s people, won’t make matters better, either.”

Given the current economic crises on both sides of the North Atlantic, UC Berkeley economist Barry Eichengreen asks: “Isn’t this a once-in-a-lifetime opportunity to move away from a world where the US Federal Reserve and the European Central Bank hold the supply of international liquidity in thrall?” He proposes “a global-GDP-linked bond, the returns on which would vary with global growth rates.”