Tag Archives: human rights law

Chevron, 50 Activists and their Email Accounts

The Electronic Frontier Foundation (EFF) and EarthRights International (ERI) asked judges in California and New York today to quash subpoenas issued by Chevron Corporation to three email providers demanding identifying information about the users of more than 100 email accounts, including environmental activists, journalists, and attorneys. The information Chevron wants could be used to create a detailed map of the individuals’ locations and associations over nearly a decade.

The subpoenas are the latest salvo in the long-running battle over damage caused by oil drilling in Ecuador. After years of litigation, an Ecuadorian court last year imposed a judgment of over $17 billion on Chevron for dumping toxic waste into Amazon waterways and causing massive harm to the rainforest. Instead of paying, Chevron sued more than 50 people who were involved in the Ecuador lawsuit, claiming they were part of a conspiracy to defraud the oil giant. None of the individuals represented by EFF and ERI has been sued by Chevron or accused of wrongdoing.

“Environmental advocates have the right to speak anonymously and travel without their every move and association being exposed to Chevron,” said Marcia Hofmann, EFF Senior Staff Attorney. “These sweeping subpoenas create a chilling effect among those who have spoken out against the oil giant’s activities in Ecuador.”

The motions to quash filed today asked the courts to reject the subpoenas, pointing out that anonymous speakers who are not parties in a lawsuit receive particularly strong First Amendment protections. EFF first won court recognition of this protection in Doe v. 2theMart.com in 2001. Chevron’s subpoenas also violate the legal protections for the right of association for political action that were developed during the civil rights era.

“The courts have long recognized that forcing activists to reveal their names and political associations will chill First Amendment rights and can only be done in the most extreme situations,” added Marco Simons, Legal Director of ERI, which has provided legal assistance to third parties affected by the Chevron litigation in two international proceedings. “We look forward to having those longstanding principles applied in this case so that people can engage in journalism and political activism and assist in litigation against environmental destruction without fear that their identities and personal email information will be put at risk.”

EFF and ERI are challenging the subpoenas to Google and Yahoo! in the U.S. District Court for the Northern District of California and the subpoena to Microsoft in the U.S. District Court for the Northern District of New York. .

EFF and ERI Fight to Quash Speech-Chilling Subpoenas from Chevron, Press Release of Electronic Frontier Foundation, Oct. 22, 2012

See also Chevron and Amazon

The Protection of Human Rights in Domestic Courts: Nigerians versus Royal Dutch Shell

The Supreme Court will weigh next week whether corporations can be sued in the United States for suspected complicity in human rights abuses abroad, in a case being closely watched by businesses concerned about long and costly litigation.  The high court on Tuesday will consider the reach of a 1789 U.S. law that had been largely dormant until 1980, when human rights lawyers started using it, at first to sue foreign government officials. Then, over the next 20 years, the lawyers used the law to target multinational corporations.

The case before the court pits the Obama administration and human rights advocates against large companies and foreign governments over allegations that Royal Dutch Shell Plc helped Nigeria crush oil exploration protests in the 1990s. Administration attorneys and lawyers for the plaintiffs contend corporations can be held accountable in U.S. courts for committing or assisting foreign governments in torture, executions or other human rights abuses.  Attorneys for corporations argue that only individuals, such as company employees or managers involved in the abuse, can be sued, a position adopted by a U.S. appeals court in New York. Other courts ruled corporations can be held liable.

The justices will hear an appeal by a group of Nigerians who argue they should be allowed to proceed with a lawsuit accusing Shell of aiding the Nigerian government in human rights violations between 1992 and 1995.

California attorney Paul Hoffman, who will argue on behalf of the plaintiffs, said corporations, under the 1789 law, were permissible defendants and that corporate civil liability was a general principle of international law.  “Businesses involved in genocide, crimes against humanity or other serious human rights violations deserve no exemption from tort liability,” he said in a brief filed with the court.  The Obama administration supported the corporate liability argument, as did international human rights organizations and Navi Pillay, the United Nations High Commissioner for Human Rights.

Representing Shell at the arguments, Kathleen Sullivan, a former dean of the Stanford Law School in California, said U.S. and international law do not allow corporate liability for the alleged offenses. She said the post-World War Two Nuremberg tribunals covered prosecutions of individuals, not corporations.  She warned of the consequences of allowing such lawsuits.  “Even a meritless … suit against a corporation can take years to resolve,” she said in a brief, adding that corporations may reduce their operations in less-developed nations where such abuses tend to arise.

The British, Dutch and German governments supported Shell and said it violates international law to apply a U.S. law from more than 200 years ago to acts that take place in other countries and have no connection to the United States.  Also backing Shell are various multinational corporations and the U.S. Chamber of Commerce business lobby. Robin Conrad, head of the group’s legal arm, said that if the Supreme Court upholds corporate liability, “the global business community will face yet another wave of frivolous and expensive litigation.”

In the past two decades, more than 120 lawsuits have been filed in U.S. courts against 59 corporations for alleged wrongful acts in 60 foreign countries, lawyers in the case said.  Many of the lawsuits have been unsuccessful, though there have been a handful of settlements, the lawyers said. Many of the cases, having dragged on for years, are still pending.

Among the cases: Indonesia villagers accused Exxon Mobil Corp’s security forces of murder, torture and other abuses in 1999-2001; Firestone tire company was accused of using child labor in Liberia; and Ford Motor Co and other firms were accused of aiding South Africa’s apartheid system.

The Supreme Court case is Esther Kiobel v. Royal Dutch Petroleum Co, No. 10-1491 (pdf arguments of the Obama Administration)

By James Vicini, Supreme Court to hear corporate human rights case, Reuters, Feb. 25, 2012

Groups Against the Individual: human rights

When one category of citizens is singled out for privileged treatment, are the rights of others infringed? Phil Eidsvik, a Canadian salmon-fisher, thinks the answer is yes. He hopes his country’s newly re-elected prime minister, Stephen Harper, recalls a pledge he made five years ago: to oppose “racially divided fisheries programmes”, in other words, giving special fishing rights to indigenous groups.

But given the storm that Mr Harper’s comment provoked—he was accused of stoking white nativism—he is likely to proceed cautiously. And legal moves are now afoot to broaden the rights of indigenous fishermen. At present Canada upholds the rights of aboriginal groups to engage in traditional, subsistence fishing; hence regulators often open a fishery to a particular indigenous group for a limited time before a commercial catch begins.

One tribe, the Lax Kw’alaams, is fighting a legal battle for special rights in the field of commercial fishing, too, challenging the government’s contention that commercial harvesting only began with the arrival of whites, and so is not a traditional activity of Canada’s first inhabitants. All this horrifies Mr Eidsvik, who argues that the rights of other fishermen (including indigenous ones) are violated when a stretch of water is allocated to a particular tribe. “The individual is completely lost in the conflict over group rights,” he says, speaking for the British Columbia Fisheries Survival Coalition, an NGO.

Among the world’s liberal democracies, Canada stands out for the entitlements it grants to one group of citizens and for its open acknowledgment that there are hard trade-offs between individual rights and group rights. From South Africa to India, many countries have “affirmative action” policies, with the aim of correcting past wrongs by allocating a disproportionate share of jobs or educational places to groups that apparently need a leg up. But critics of the Canadian system say it goes further; it creates two levels of citizen by excluding indigenous people from conservation rules, and by exempting tribes from the accountability rules that other groups must follow. It is one thing to offer benefits to citizens who are felt to need them, another to water down the principle of equal citizenship.

Canada may be egregious, but, in one form or another, most democracies have to weigh the demands of groups against the rights of individuals—and getting the correct balance has become harder in the age of identity politics, when arguments about culture and even religion have replaced older ones over economics and class. Ostensibly at least, France has remained at the far end of the spectrum from Canada. French officials like to contrast their own policy of equal citizenship with the sloppy communautarisme—rights for specific groups—that some countries, including multicultural Britain, tolerate.

Whatever lies behind that French rhetoric, the question of group entitlement has been thrown into sharp relief in all rich democracies by the recent arrival of migrants whose “cultural practices” are at odds with any liberal understanding of rights. Extreme examples include the stigmatising of children accused of witchcraft; the practice of female genital mutilation; domestic violence; and forced marriages with partners in distant lands. Whenever those practices are tolerated, the victims are deprived of basic human rights—and the perpetrators enjoy a peculiar leniency.

As countries wrestle with those problems, realities often differ less than theories do. At least in the recent past, the French authorities turned a blind eye to polygamy among north African migrants. And if there are British inner cities where the Queen’s writ (in respect of equality of the sexes, say) hardly runs, something similar applies to the ghettos of Marseilles…

If the Arab uprisings prevail, will the resulting elected governments impose the will of the majority group—Sunni Muslim in Syria or Tunisia, Shia in Bahrain? Or will they be genuine liberal democracies, with guarantees that members of minorities will be treated no better and no worse than anybody else? That question is impossible to answer in advance, though there are many vulnerable groups, from the Christians of Syria to the Tuareg nomads of the Maghreb, who have reason to fear they might fare worse under free, universal suffrage than they did under secular despots.

Compared with the chaos that could accompany any regime change in the Arab world, decision-makers in stable places like Canada or France have an easy time of it; they are free to experiment and negotiate. And in any lively democracy, groups—defined by language, religion or simply voluntary association around an idea or a pastime—will bargain vigorously over things like language teaching or zoning rights for mosques. But a dangerous line has been crossed, and a bad signal sent to other places, if, in the name of group rights, the principle of equality before the law is openly breached.

Excerpt from Group rights v individual rights: Me, myself and them, Economist, May 14, 2011, at 75