How have practitioners used judicial mechanisms to hold companies accountable for abuses abroad?

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How have practitioners used judicial mechanisms to hold companies accountable for abuses abroad?

How have you used judicial mechanisms in home states to hold companies to account for abuses abroad?

What barriers to accessing justice have you faced?

What victories have been won?

What can we learn from our victories and defeats?

Share your ideas, experiences and questions below be adding new comments or replying to existing comments!

Judicial Mechanisms - SO Important

The importance of effective judicial mechanisms in providing corporate accountability cannot be underestimated.  Additional to preferential action in the host country, cases against corporations in their home country continue to provide remedy for victims, and shake many company to its core.  Unfortunately, this is all under threat in the UK at the moment.  Not, as you would first imagine, due to issues of jurisdiction (like the debate currently in the US in relation to ATCA), but issues relating to costs and cut backs.  CORE and others recently sent a letter to the Government on this issue, available here


Hannah Ellis, Coordinator, The Corporate Responsibility (CORE) Coalition

Obstacle to Justice: State Secrets and National Security

The states secrets privilege is an evidentiary privilege created entirely out of legal precedent that permits the government to block the release of any information in a lawsuit that, if disclosed, would cause harm to national security. The privilege has existed since the Civil War era, but its contemporary manifestation and the rules governing its invocation are derived from the 1950’s case United States v. Reynolds, 345 U.S. 1 (1953), which barred a wrongful death suit brought against the government by the widows of three civilian men who were killed in a military plane crash.


This privilege has direct application to the corporate actor as well.  The Ninth Circuit, in an en banc hearing on September 12, 2010, granted a full dismissal of Mohamed v. Jeppesen Dataplan, demonstrating judicial approval for the most powerful exercise of the Executive Branch’s state secrets privilege to date.  Mohamed involves five non-citizens who claim that publicly traded Jeppesen Dataplan (a Boeing Subsidiary corporation) transported them via aircraft (flights commonly referred to as “torture flights” or “ghost flights”) to CIA “black sites” and provided logistical support for their imprisonment and torture as a part of the CIA’s “extraordinary rendition” program. The plaintiffs sued Jeppesen directly, but before Jeppesen even had time to respond to the complaint, the government, under the Bush Administration, interceded and claimed the state secrets privilege on behalf of Jeppesen. The CIA claimed that even addressing the issue of standing would have revealed state secrets.


 When the case was appealed to the Ninth Circuit, the Obama Administration decided to reaffirm the Bush Administration’s claim of state secrets, despite campaign promises to be “committed to an unprecedented level of openness in government” (see here). The Ninth Circuit agreed to dismiss the entire case, not even allowing it to go forward based on evidence demonstrated through public records. The dismissal not only further isolated the “extraordinary rendition” program from judicial review, but also created an astounding legal precedent and unparalleled expansion of executive power, standing for the position that the Executive may bar suits against private companies - even in cases where the government is not a party to the suit - solely because the private company was hired to do outsourced work pertaining to national security and had access to secret information.


 Read a fantastic write up on the State Secrets privilege here.

Accountability of corporations doing business abroad

Searching online I came across the article regarding the increasing involvement of corporations in conducting business overseas. Often these corporations find themselves confronted by completely new legal issues.


I found really interesting case of  Yahoo!, a major U.S. internet company with subsidiaries and partnerships in numerous other countries, doing business in China. Unfortunately, Yahoo learned a painful lesson about doing business in China. Thanks to the complicity between Yahoo! and Chinese government officials,  two Chinese citizens like Wang Xiaoning and Shi Tao faced increasing threats to their rights to free speech and association, and other fundamental human rights such as the right to freedom from torture.

Description of this case can be found in the website of World Organization For Human Rights. On April 18th, 2007, Wang Xiaoning and his wife, Yu Ling, filed suit against Yahoo! Inc. and its subsidiaries for their role in aiding and abetting the arbitrary and prolonged detention of journalists and human rights advocates in China. In 2002, Wang was arbitrarily detained and subsequently arrested by Chinese authorities for having written and published articles advocating for democracy and a multiparty system in China. Shi Tao, a journalist and poet, was detained in 2004 after sending an e-mail overseas that described increased censorship surrounding the anniversary of the Tiannamen Square protests. Both men were detained and sentenced to prison because of private information about their emails that Yahoo!'s Chinese subsidiary handed over to the government.

By turning over identifying information about its customers, Yahoo! is enabling serious human rights abuses like torture, forced labor, and arbitrary and prolonged detention. As a result, Wang Xiaoning, Shi Tao, and others like them are imprisoned for having done nothing more than exercising their free speech rights.


This case underscores the need of corporations to put human rights first, especially when doing business dealings in countries that have poor human rights records.


I would be interested to hear other examples regarding the accountability of corporations abroad.

Multi-national telecommunications corporations

Vineta Polatside wrote:

Thanks to the complicity between Yahoo! and Chinese government officials,  two Chinese citizens like Wang Xiaoning and Shi Tao faced increasing threats to their rights to free speech and association, and other fundamental human rights such as the right to freedom from torture.

Thank you, Vineta, for sharing this important example of the role that multi-national telecommunications companies play in the activities of repressive regimes.  Yahoo, Google, Hotmail and other email services store valuable information regarding human rights defenders.  When these multi-national corporations begin to work in other countries, they often agree to share this valuable information with the governments.  These are the agreements that are made.  How can we hold these corporations to a higher standard from their home country - the United States?

This reminds me of Alix's comment on Vodafone's actions in Egypt:

alix wrote:

When Vodafone blocked Facebook and Twitter on its networks, cut SMS, slowed Google services, and ultimately cut Internet, they were joined by all other mobile networks in Egypt – but they were the only company with a base in Europe. When Vodafone Egypt reported that the government had forcibly used its mobile networks to send out SMSs to Egyptians encouraging them to leave protests, obey curfews, and reflect on national pride it was a refusal to accept responsibility mixed with a strange sort of apology. Not an apology for the way they spinelessly cowed to Emergency Law but an apology for their image being even more threatened than when they released customer data and communication content to the government during demonstrations in 2005. This betrayal of consumers and markets affects the bottom line particularly when a people are atypically (and unprecedentedly) organized, networked, angry, and are looking for symbols of injustice.

...

It may sound crazy, but if companies are not going to stop using their influence and infrastructure to empower dictators, then maybe this moment is one in which a company seeking to regain the respect of an angry population threatening boycotts can do so by actually using those infrastructures in for innovative solutions to the challenging obstacles of democratic transformation.

It looks like Microsoft, Google, Yahoo and Vodafone had been working on a code of conduct back in 2007 and 2008 that would include (found online):

Principles on Freedom of Expression and Privacy that provide direction and guidance to the ICT industry and its stakeholders in protecting and advancing the enjoyment of freedom of expression and privacy globally. The Principles describe key commitments in the following areas: Freedom of Expression; Privacy; Responsible Company Decision Making; Multi-Stakeholder Collaboration; Governance, Accountability, Transparency.

Implementation Guidelines that provide further details on how participating companies will put the Principles into practice. The Implementation Guidelines describe a set of actions which constitute compliance with the Principles and provide companies with guidance on how to implement the Principles.

A Governance, Accountability and Learning Framework founded on the notion that an organizational and multi-stakeholder governance structure is required to support the Principles and that participating companies should be held accountable for their role in the implementation of the Principles through a system of independent assessment.

Does anyone know if these corporations are agreed to a code of conduct yet?  If they have, how can we hold Vodafone and other companies accountable for not meeting their obligations?  How can we hold these corporations accountable for abuses outside of this code of conduct?

Online Communications & Censorship

In response to Kristin’s questions:

"Does anyone know if these corporations are agreed to a code of conduct yet?  If they have, how can we hold Vodafone and other companies accountable for not meeting their obligations?  How can we hold these corporations accountable for abuses outside of this code of conduct?"

From what I can tell any sort of alliance between Microsoft, Google, Yahoo and Vodafone in drafting a universal code of conduct has been unforthcoming. Google probably has the most easily accessible code of conduct out of the listed companies with a state commitment to privacy and freedom of expression:

“Google is committed to advancing privacy and freedom of expression for our users around the world. Where user privacy and freedom of expression face government challenges, we seek to implement internationally recognized standards that respect those rights as we develop products, do business in diverse markets, and respond to government requests to access user information or remove user content. Contact Legal or Ethics and Compliance if you have questions on implementing these standards in connection with what you do at Google.”

What these “internationally recognized standards” are, is another question entirely.
Business Standard has an interesting article on the backlash for companies like Facebook and Vodafone for caving to government pressure to censure or shut down communication. Google in particular seems to have been rather responsive over the years to public pressure to uphold their motto of “Don’t be evil” – they eventually pulled out of China last July (I think) because of the government’s insistence on censorship and they also created an application that shows all the government requests for censorship. Perhaps these count as success stories as public outrage forces them to maintain transparency? It seems like there should be ways in which the information provided could be used to further pressure corporations and governments.

Accessnow.org is also doing a series of petitions to ensure human rights are upheld by these online corporations. One to pressure Facebook to take greater measures to protect its users from government tracking and another to chastise Vodafone for the role it played in stifling communication in Egypt recently. One of the real challenges to changing some of these organizations – as with other giant corporations, no doubt—seems to be their ubiquity. After all, how do you get enough support for something like a boycott of Facebook? The United States appears to be doing a fair bit to pressure corporations to keep internet communications open, but that’s naturally motivated by its own political agendas for certain countries. There’s an interesting summary of ways in which the US has been doing that, a highlight of which is this:

“Clinton said the United States would push projects to help people evade government Internet limits, adding $25-million this year to $20-million already devoted to technologies, tools and training that can help break down barriers imposed by repressive governments.”

Legal mechanisms - pitfalls of Investor-State Arbitration

I'd like to share some information from Rights & Democracy has some interesting information in three volumes concerning large scale mining.

VOLUME 1  (2007)
Human Rights Impact Assessments for Foreign Investment Projects: Learning from community experiences in the Philippines, Tibet, the Democratic Republic of Congo, Argentina, and Peru.

VOLUME 2 (2008) -  "Getting it Right: A step by step guide to assess the impact of foreign investments on human rights"

VOLUME 3 (2009) Human Rights and Bilateral Investment Treaties: Mapping the Role of Human Rights Law within Investor-state Arbitration By Luke Eric Peterson

This document provides a very interesting read regarding human rights law applications. See Chapter 3: Reflections and Recommendations (starting on page 44) regarding scenarios where human rights issues are arising in investment treaty arbitrations. Here is a brief quote from the introduction of the document to let you know if you would be interested to read more.

This paper introduces the foreign investment protection regime, so that human rights actors and experts can understand the basic features of the system—and its key legal and policy implications. The paper then profiles a series of lawsuits that have arisen between foreign investors and their host states—where state compliance with investment treaty obligations is at issue, and where human rights issues have also arisen. Human rights considerations are arising in several distinctive ways in these arbitrations. In a number of instances, adjudicators of treaty disputes have invoked human rights law as a guide or an analogy when interpreting the legal protections owed to foreign investors. For example, human rights norms related to due process or property rights are studied by adjudicators in order to help interpret and elucidate the investment treaty protections owed to foreign investors.

Meanwhile, in other contexts, arbitrators are being asked by host-governments or outside interests (e.g. civil society groups) to consider the human rights interests of community members. Where governments are accused of breaching protections owed to foreign investors, they are sometimes seeking to justify such actions on the grounds that a valid human rights obligation compelled the government to act in a given situation. For example, in an international arbitration between the Republic of Argentina and a bloc of foreign water companies, the government has sought to defend alleged investment treaty breaches by invoking the human right to water.

It remains to be seen to what extent governments are genuinely torn by their different international law obligations, or whether these are reconcilable. What is clear is that adjudicators of investment treaty arbitrations are on the front lines, making such determinations. In currently pending international law proceedings between investors and governments, arbitrators are being asked to weigh whether human rights considerations should limit or preclude the liability of states for breaching investment treaty obligations.

Case study from Ecuador

This is a recently published report (December 2010) regarding LARGE-SCALE MINING IN ECUADOR AND HUMAN RIGHTS ABUSES: The Case of Corriente Resources Inc. by Comisión Ecuménica de Derechos Humanos, CEDHU; International Federation for Human Rights, FIDH; and with the collaboration of Rights & Democracy; Centro de Derechos Económicos y Sociales, CDES; Fundación Regional de Asesoría en Derechos Humanos, INREDH

I thought the methodology that was used for assessing this case might be of particular interest for the people participating in this dialogue. The following quote is taken from page 3 under "Methodology":

The report essentially followed the methodological guide for Human Rights Impact Assessment of Foreign Direct Investments developed by the Canadian organization Rights & Democracy. The research team used the guide’s human rights framework, based on the following principles: participation; transparency (access to information); non-discrimination; the indivisibility of human rights; and the need to hold accountable those actors involved for their responsibility in the events that were analyzed.

Are any of you also using this "Human Rights Impact Assessment of Foreign Direct Investments" or a similar methodology? If so, please share your experience with such tools and their usefulness in the legal area. [Note: the legal aspects outlined in the report begin on Page 6]

Some non-US/ATCA lawsuits to consider

There are a few lawsuits that spring to mind when talking about extraterritorial jurisdiction, other than Alien Tort Claims Act lawsuits in the United States.  [The hyperlinks will take you to case profiles for the lawsuit on the Business & Human Rights Resource Centre website, which in turn will give you a number of resources on the case.]

1.  Total lawsuit in Belgium (re Burma) – Burmese refugees residing in Belgium brought a lawsuit against Total alleging that the company was complicit in crimes against humanity for its involvement in the construction and operation of the Yadana Pipeline in Burma.  This lawsuit was brought pursuant to a 1993 Belgian law on universal jurisdiction.  It is a very good example of the challenges a country faces when trying to enact legislation to open its courts to foreign plaintiffs making claims about serious crimes in foreign countries.  This lawsuit has a convoluted procedural history because the Belgian Constitutional Court became involved in the process and eventually the universal jurisdiction law was amended.  The case against Total was subsequently closed.

2.  Trafigura lawsuits (re Côte d’Ivoire) – The fallout from Trafigura, the Probo Koala and the disposal of waste from this ship in and around Abidjan has spawned lawsuits in numerous countries.  The UK lawsuit resulted in a legal settlement.  In The Netherlands, Trafigura has been prosecuted for the illegal export of hazardous waste, but the Dutch prosecutors have been reluctant to investigate Trafigura’s role in the waste disposal once it arrived in Côte d’Ivoire.  This is an interesting contrast to the next case.

3.  Shell lawsuit (re oil pollution in Nigeria) – Four Nigerians filed suit in The Netherlands with two NGOs alleging that Shell had been negligent in its clean-up of oil spills in Nigeria.  The lawsuit was filed in The Hague and at the end of December 2009 the court ruled that it had jurisdiction to hear the case.

4.  Anvil Mining lawsuit (re Dem Rep. of Congo) – A civil class action was launched against Anvil Mining at the end of last year alleging that the company was complicit in the commission of war crimes and crimes against humanity in the DRC.  The lawsuit concerns a massacre which occurred in the village of Kilwa in 2004.  Kilwa is close to Anvil’s copper mine in DRC.

A full list of the cases profiled on our website is here.

Two other interesting cases (that have not yet been profiled on our website) are: Monterrico Metals in the United Kingdom and Copper Mesa in Canada.  

- The lawsuit pending in the UK against Monterrico Metals alleges that the company was complicit in the commission of human rights abuses against Peruvian farmers who were protesting the mines presence in their region of Peru.  Further information on Monterrico Metals is here.

- The lawsuit pending in Canada against Copper Mesa alleges that the company was complicit in the commission of human rights abuses against protestors in of its mine in Ecuador.  Further information on Copper Mesa is here.

I hope this is helpful.

Sif Thorgeirsson
Manager, Corporate Legal Accountability Project
Business & Human Rights Resource Centre

Using domestical legislation in Brazil

Our experience is with the use of tools  and domestic legislation to avoid  abuse of a Brazilian oil company, such as environmental legislation, which provides environmental impact studies and the satisfaction of certain conditions to reduce impacts verified. In our case, the oil company have not repaired the damages of work to fishermen of “Baía de Guanabara."

For more information, visit our site: www.marianacriola.org.br

Thank you,

Ana

A few examples

I found a website that has a list of international lawsuits related to corporate responsibility.  It is available here.

One semi-success story comes from Coca-Cola in India.  In 2003, a lawsuit was brought before the Indian state of Kerala alleging that Coca-Cola’s bottling plant in the Plachimada village caused environmental problems and drinking water scarcity.  Coca-Cola argued that at the time the plant was created, there was no law prohibiting the digging of bore-wells for the plant.  The Court rejected Coca-Cola’s argument, holding that the state holds responsibility to protect life and the resources necessary for life.  They also held that it is the state’s duty to protect natural resources, including groundwater.  Although the Court did not shut down the plant, they ruled the plant’s water extraction illegal.

Both parties appealed the decision and in April 2005, the Kerala High Court reversed the decision.  The Court held that groundwater is a private resource and that the landowner has the rights to extract groundwater without permission from the State.  Coca-Cola’s license was renewed and allegations of pollution were rejected.  The case was appealed again and is still pending before the Kerala High Court.

9th Circuit: Corp Can Be Sued For Human Rights Violations Abroad

Hello all!  Just heard about this decision from the US Court of Appeals for the 9th Circuit.  What kind of impact do you see this having on holding corporations accountable for violations abroad?

Here is an excerpt I took from Huffington Post:

WASHINGTON -- Corporations can be held liable in U.S. courts for human rights violations committed abroad, the U.S. Court of Appeals for the 9th Circuit ruled on Wednesday. The 9th Circuit reached the same conclusion as two other appeals courts, the 7th and D.C. Circuits, which further isolates the 2nd Circuit's contrary determination, slated for Supreme Court review this term.

The case, Sarei v. Rio Tinto, arises out of a lawsuit brought in 2000 alleging that Rio Tinto, a multinational mining company, is responsible for the deaths of about 15,000 residents on the island of Bougainville in Papua New Guinea. In 1988, Bougainville residents revolted against Rio Tinto, sabotaging its mine and citing the company's displacement of villages, major pollution and systematic discrimination against native workers. At Rio Tinto's urging, the Papua New Guinea government sent in its military and, with the use of Rio Tinto helicopters and vehicles, killed many people in an effort to put down the revolt. Soon thereafter, Papua New Guinea imposed a military blockade on Bougainville to secure the mine, and the country fell into a decade-long civil war.

Wednesday's ruling by an 11-judge panel found that corporations can be sued for genocide and war crimes under the Alien Tort Statute. That law, passed by the first Congress in 1789, allows foreign plaintiffs to bring suit in federal courts for violations of "the law of nations."

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