Sunday, October 21, 2012
Momentum in ending Phillipines conflict should continue
KUALA LUMPUR (Oct 20, 2012): The momentum and spirit in ending the four-decade long conflict in the southern Philippines recently, should keep going as Asean still has other challenges in its landscape, Asean secretary-general Dr Surin Pitsuwan said today.
Of late, he said, Asean had seen a string of successes in managing conflicts, which included East Timor and Aceh.
"We have other challenges somewhere else on the landscape of Asean, and I hope this would be a momentum of going forward that we can reconciliate in other places, including Rakhine (Myanmar) and southern Thailand.
"The spirit of Mindanao will have a positive impact in other areas of conflict.
"Malaysia has been playing a very effective, contributing and wise role in mediating these conflicts, particularly Mindanao. It has taken a lot of time but I think all sides have been very patient and in the end, wisdom prevails and the only way to settle this is through negotiations.
"Malaysia has made a great contribution," he added.
Pitsuwan was speaking to reporters after delivering a talk entitled, 'The Role of Regional Networks in Humanitarian Aid' at the Raja Nazrin Shah 2012 Lecture Series' organised by Mercy Malaysia here.
The Philippine Government and the Moro Islamic Liberation Front (MILF) recently signed a historic agreement, which Malaysia helped broker, to end a four-decade long conflict in the southern Philippines.
The Framework Agreement on the Bangsamoro was signed by Philippine chief negotiator Marvic Leonen and MILF's lead negotiator Mohagher Iqbal in the presence of Philippine President Benigno Aquino III and Malaysian Prime Minister Datuk Seri Najib Abdul Razak, at the Presidential Malacanang Palace in Manila. – Bernama
Friday, October 12, 2012
lesson from aceh
MANILA, Philippines - On Aug 15, 2005, the government of Indonesia and the Free Aceh Movement (GAM) signed a peace agreement that put an end to 3 decades of conflict that claimed over 15,000 lives and displaced tens of thousands of people in northern Sumatra.
The peace process in Aceh was in many ways quite similar to the one currently underway in Mindanao between the Philippine government and the Moro Islamic Liberation Front (MILF).
What lessons can be drawn from that experience and what can we expect from the new Framework Agreement if we compare it to Aceh?
Background
Much like Mindanao with the Spanish, Muslim Aceh became a source of conflict when the Dutch colonizers arrived in Indonesia in 1873.
Indonesia declared independence from the Netherlands in 1945, and 4 years later the Republic of Indonesia was formally established, including Aceh in a unitary state.
But the Acehnese did not want to be part of a non-Islamic state and demanded to be a special autonomous region with powers over culture, education and religion.
Jakarta agreed, and the peace lasted for more than two decades decade until the 1970s, when vast deposits of natural gas were discovered in Aceh.
Like in Mindanao, the natural resources were pilfered by the national government and the local population practically did not benefit at all from them and remained one of the poorest and most underdeveloped regions in Indonesia.
Conflict erupts
The Aceh Sumatra National Liberation Front -- later renamed Gerakan Aceh Merdeka or GAM -- was formed in 1976 and that same year declared the independence of the territory from the "Javanese colonialists," as they viewed the national government in Jakarta.
The authorities, like in Mindanao, responded by launching an all-out military campaign to crush the rebels.
Scores of GAM militants were killed in the counterinsurgency operations as well as many civilians, and between 120,000 and 150,000 were internally displaced at the end of 2004.
Negotiations begin
General Suharto, who ruled Indonesia with an iron fist from 1956 to 1998, refused to negotiate with the Free Aceh Movement while he was in power, but after he stepped down his successors opened a window for peace negotiations with the GAM.
However, all attempts failed and each proposed deal was viewed with suspicion by the rebels after the long list of human rights abuses committed by Indonesian soldiers.
On top of that, Jakarta never considered offering the territory the option of independence accepted for East Timor, which finally broke free from Indonesia in 2002 after a quarter century of military occupation.
Despite efforts from both sides to pursue peace, hostilities on the ground remained unabated in Aceh and any type of agreement seemed impossible in the near future.
Tsunami brings peace
On Dec 26, 2004, a deadly tsunami devastated Aceh and killed around 150,000 people in the worst natural disaster in the XXI century so far.
The tragedy changed the dynamics of the conflict and compelled both sides to be more flexible and secure a peaceful environment for rebuilding Aceh.
Less than a year later, a Memorandum of Understanding (MoU) was signed with the following key provisions:
Withdrawal of government troops, liberation of political prisoners and amnesty in exchange for GAM disarmament
Political autonomy except for foreign affairs, defense, monetary policy and other aspects inherent to the national government
70% of revenues from natural resources must stay in Aceh
Sharia law in place for all Muslims but not to be applied to non-Muslims
Fair and free elections with the participation of local parties, previously banned
Demobilized combatants have then right to government land to facilitate their reintegration in society and to be employed in the police
Lessons for PH
According to Abhoud Syed M. Lingga, executive director of the Insitute of Bangsamoro Studies in Cotabato City, the following lessons can be learned for Mindanao from the Aceh peace process experience:
Negotiations started moving forward when Indonesian President Gus Dur abandoned the rigid military approach favored by Suharto.
The agreed framework must be endorsed by the President, who must show true interest in pursuing the peace process and not leave it to the top negotiator.
New political thinking and the support of the military is essential, as well as political influence over Muslim groups.
Negotiators from both sides must be empowered to make tough decisions without having to consult each step with their superiors.
GAM was given the option to become a political party and won the 2006 and 2011 elections, as the MILF intends to do.
Demobilizing MILF combatants will not get rid of violence, as there are many other armed groups in Mindanao, unlike the GAM which was the only armed group apart from the military in Aceh
Being elected to positions does not terminate the need for reforms, and even those outside of the political process can contribute - Rappler.com
The peace process in Aceh was in many ways quite similar to the one currently underway in Mindanao between the Philippine government and the Moro Islamic Liberation Front (MILF).
What lessons can be drawn from that experience and what can we expect from the new Framework Agreement if we compare it to Aceh?
Background
Much like Mindanao with the Spanish, Muslim Aceh became a source of conflict when the Dutch colonizers arrived in Indonesia in 1873.
Indonesia declared independence from the Netherlands in 1945, and 4 years later the Republic of Indonesia was formally established, including Aceh in a unitary state.
But the Acehnese did not want to be part of a non-Islamic state and demanded to be a special autonomous region with powers over culture, education and religion.
Jakarta agreed, and the peace lasted for more than two decades decade until the 1970s, when vast deposits of natural gas were discovered in Aceh.
Like in Mindanao, the natural resources were pilfered by the national government and the local population practically did not benefit at all from them and remained one of the poorest and most underdeveloped regions in Indonesia.
Conflict erupts
The Aceh Sumatra National Liberation Front -- later renamed Gerakan Aceh Merdeka or GAM -- was formed in 1976 and that same year declared the independence of the territory from the "Javanese colonialists," as they viewed the national government in Jakarta.
The authorities, like in Mindanao, responded by launching an all-out military campaign to crush the rebels.
Scores of GAM militants were killed in the counterinsurgency operations as well as many civilians, and between 120,000 and 150,000 were internally displaced at the end of 2004.
Negotiations begin
General Suharto, who ruled Indonesia with an iron fist from 1956 to 1998, refused to negotiate with the Free Aceh Movement while he was in power, but after he stepped down his successors opened a window for peace negotiations with the GAM.
However, all attempts failed and each proposed deal was viewed with suspicion by the rebels after the long list of human rights abuses committed by Indonesian soldiers.
On top of that, Jakarta never considered offering the territory the option of independence accepted for East Timor, which finally broke free from Indonesia in 2002 after a quarter century of military occupation.
Despite efforts from both sides to pursue peace, hostilities on the ground remained unabated in Aceh and any type of agreement seemed impossible in the near future.
Tsunami brings peace
On Dec 26, 2004, a deadly tsunami devastated Aceh and killed around 150,000 people in the worst natural disaster in the XXI century so far.
The tragedy changed the dynamics of the conflict and compelled both sides to be more flexible and secure a peaceful environment for rebuilding Aceh.
Less than a year later, a Memorandum of Understanding (MoU) was signed with the following key provisions:
Withdrawal of government troops, liberation of political prisoners and amnesty in exchange for GAM disarmament
Political autonomy except for foreign affairs, defense, monetary policy and other aspects inherent to the national government
70% of revenues from natural resources must stay in Aceh
Sharia law in place for all Muslims but not to be applied to non-Muslims
Fair and free elections with the participation of local parties, previously banned
Demobilized combatants have then right to government land to facilitate their reintegration in society and to be employed in the police
Lessons for PH
According to Abhoud Syed M. Lingga, executive director of the Insitute of Bangsamoro Studies in Cotabato City, the following lessons can be learned for Mindanao from the Aceh peace process experience:
Negotiations started moving forward when Indonesian President Gus Dur abandoned the rigid military approach favored by Suharto.
The agreed framework must be endorsed by the President, who must show true interest in pursuing the peace process and not leave it to the top negotiator.
New political thinking and the support of the military is essential, as well as political influence over Muslim groups.
Negotiators from both sides must be empowered to make tough decisions without having to consult each step with their superiors.
GAM was given the option to become a political party and won the 2006 and 2011 elections, as the MILF intends to do.
Demobilizing MILF combatants will not get rid of violence, as there are many other armed groups in Mindanao, unlike the GAM which was the only armed group apart from the military in Aceh
Being elected to positions does not terminate the need for reforms, and even those outside of the political process can contribute - Rappler.com
Fisheries benefit from 400-year-old tradition
Published: Thursday, October 11, 2012 - 20:03 in Biology & Nature
Related images
(click to enlarge)
WCS Indonesia Program
A new study by the Wildlife Conservation Society and James Cook University says that coral reefs in Aceh, Indonesia are benefiting from a decidedly low-tech, traditional management system that dates back to the 17th century. Known as "Panglima Laot" -- the customary system focuses on social harmony and reducing conflict among communities over marine resources. According to the study, reefs benefitting from Panglima Laot contain as much eight time more fish and hard-coral cover due to mutually agreed upon gear restrictions especially prohibiting the use of nets.
The study, which appears in the October issue of the journal Oryx, is by Stuart Campbell, Rizya Ardiwijaya, Shinta Pardede, Tasrif Kartawijaya, Ahmad Mukmunin, Yudi Herdiana of the Wildlife Conservation Society; and Josh Cinner, Andrew Hoey, Morgan Pratchett, and Andrew Baird of James Cook University.
The authors say Panglima Laot has a number of design principles associated with successful fisheries management institutions. These include clearly defined membership rights, rules that limit resource use, the right of resource users to make, enforce and change the rules, and graduated sanctions and mechanisms for conflict resolution. These principles are the key to the ability of the institution to reduce conflict among communities, provide sustainable access to marine resources, and limit the destruction of marine habitats.
"No-take fishing areas can be impractical in regions where people rely heavily on reef fish for food," said the study's lead author Dr. Stuart Campbell of the Wildlife Conservation Society. "The guiding principle of Panglima Laot was successful in minimizing habitat degradation and maintaining fish biomass despite ongoing access to the fishery. Such mechanisms to reduce conflict are the key to success of marine resource management, particularly in settings which lack resources for enforcement."
However, the institution has not been uniformly successful. In particular, reef conditions in the adjacent island group of Pulau Aceh were poor possibly because of destructive fishing and poor coastal management. The precise causes of this breakdown of the Panglima Laot system are the focus of current research efforts in the region.
Other work by WCS and James Cook University suggests that fishers who are poorer and had lower levels of participation in resource management, had correspondingly lower levels of both trust in local institutions and involvement in community events. These groups subsequently felt less benefit from the customary PL system. In these places fishing is largely uncontrolled.
When the PL system is strong, and motivated by the aim of producing social harmony, restrictions on gear use by the Panglima Laot in Aceh have direct conservation benefits such as high coral cover and enhanced fish biomass.
Additional surveys over a wider geographical scale and over a longer period are required to reveal whether these findings also apply across larger scales and over time.
Monday, October 1, 2012
Aceh Exxon Mobile Suit Hangs in Balance as US Supreme Court Mulls Nigeria Claim | The Jakarta Globe
For more than three decades survivors of human rights abuses in foreign countries have turned to US federal courts to seek justice. On Monday the US Supreme Court hears a case that could make that impossible.
The case pits a Nigerian widow against a multinational oil company. Esther Kiobel and others say Royal Dutch Petroleum (Shell) helped the Nigerian government commit human rights violations against her husband, who was executed in 1995. Shell has denied the allegations and argues that cases involving foreign governments committing atrocities in their own countries do not belong in the US court system at all.
That the justices are considering the sweeping question of whether an entire class of lawsuits can be heard in the United States can be traced to briefs filed by three lawyers whose clients aren’t even involved in the case.
How their briefs came to be sheds light on one of the most closely watched cases before the Supreme Court this term and shows how the efforts of private lawyers pursuing a public policy goal can have momentous consequences.
A ruling against Kiobel could wipe out lawsuits pending against companies such as Exxon Mobil Corp, Rio Tinto Plc and Nestle, which are accused by private plaintiffs of helping governments violate human rights in Indonesia, Papua New Guinea and Ivory Coast, respectively.
Esther Kiobel’s husband, Barinem Kiobel, was arrested in 1994 along with Nobel Peace Prize nominee Ken Saro-Wiwa and others. They had spoken out against the government’s violent suppression of environmental activists who opposed Shell’s oil and gas drilling in Nigeria. Kiobel was found guilty of murder by a Nigerian military court in a trial that the US State Department said lacked due process, and he was hanged in Port Harcourt, Nigeria, in 1995.
With no recourse in Nigeria, Esther, who had received asylum in the United States, filed a lawsuit in federal court in New York alleging among other things that Shell cooperated with the Nigerian military, resulting in crimes against humanity. She relied on a 200-year-old US law called the Alien Tort Statute. While the case was under way, Shell won a ruling in September 2010 from the influential 2nd US Circuit Court of Appeals that said Shell could not be held liable under the statute because it was a corporation. It was a major shock to human rights lawyers, who had brought more than 100 such cases against corporations in the previous two decades.
Teaming Up Again
The ruling quickly caught the attention of John Bellinger, an attorney at the law firm Arnold & Porter. In a series of interviews with Reuters, Bellinger, 52, discussed his actions over the subsequent 18 months. He stressed that he was speaking in a private capacity rather than as a representative of his clients in the Kiobel case.
Bellinger believed Kiobel’s lawyers were likely to petition the Supreme Court. Sure enough, in October 2011 the court agreed to take the case on the narrow question of whether corporations could be held liable under the statute.
Bellinger, who had been State Department legal adviser in the Bush administration, had bigger ideas. He wanted to present the court with arguments he had heard from foreign governments while he was at the State Department. Back then, Australia, Britain, Canada and others had protested when cases were brought under the Alien Tort Statute. They argued that US courts had no business judging events that took place on foreign soil.
When the Supreme Court accepted the Kiobel case, Bellinger started emailing and calling governments that had opposed previous Alien Tort Statute cases to see whether they wanted to file a brief and whether they already had legal representation. But none of those he contacted were ready to commit, leaving him with no one to represent.
In November last year, Bellinger called Shell’s lawyer, Kathleen Sullivan, who had been one of his professors at Harvard Law School. Sullivan, who declined to comment for this story, was preparing to argue the question that was before the Supreme Court at the time: whether the statute applied to corporations. Bellinger says she mentioned to him that former US Solicitor General Paul Clement was writing a brief for IBM in support of Shell. IBM is one of dozens of corporations that are defendants in another case, brought by South Africans who suffered abuses under apartheid.
Clement, a 46-year-old conservative wunderkind, has argued more than 50 cases before the nation’s top court. In late 2011 he was working on some of the nation’s highest-profile cases, including defending Arizona’s immigration law and a federal law that defines marriage as a union between a man and a woman.
Clement and Bellinger had worked together on an Alien Tort Statute case when Clement was solicitor general and Bellinger was at the State Department. When they spoke, the two lawyers decided to team up again. “Paul agreed,” said Bellinger, “we could track a number of the issues we’d argued in government.”
They divvied up the work. To build their case, Bellinger sought to document instances where foreign governments had complained about the statute. Clement’s job was to look at the big picture.
In an interview, Clement said he saw two issues lower courts were grappling with. One was Bellinger’s concern about whether the statute applied to cases where abuses were committed in foreign countries. The other was whether helping a foreign government commit an abuse, rather than committing the abuse directly, was covered by the statute. Only the 2nd Circuit’s Kiobel decision had brought up the new question of whether a corporation, rather than an individual, could be held liable under the statute. It was almost as if the Supreme Court was looking at the wrong question, Clement said.
Like Bellinger, Clement agreed to speak only in a private capacity and not as a representative of his clients in the ongoing litigation.
The two lawyers said they decided they needed to marshal a much broader argument than the one the Supreme Court had asked for in Kiobel. Bellinger spent December 2011 reaching out to clients of Arnold and Porter who were past, current or potential future targets of lawsuits under the Alien Tort Statute.
In February this year they filed their brief on behalf of BP Plc, Caterpillar Inc, ConocoPhillips, General Electric Co, Honeywell International Inc and IBM. They argued that the Alien Tort Statute does not cover events that took place in foreign countries, nor does it apply to those who help others commit abuses, only those who commit abuses themselves. None of the six companies would comment for this story.
Jack Goldsmith, another lawyer who had worked in the Bush administration, filed a similar brief on behalf of Chevron. Goldsmith declined to talk about the pending litigation.
Changing the Question
On a crisp morning in late February, Paul Hoffman, a veteran human rights advocate, stood before the Supreme Court to argue the case for Kiobel. Some 16 years earlier, Hoffman had brought a landmark lawsuit under the Alien Tort Statute against oil company UNOCAL over abuses in Myanmar, which settled in 2005 for an undisclosed sum. Since then, bringing lawsuits against corporations had come to define his career.
Hoffman had hardly opened his mouth, however, when Justice Anthony Kennedy interrupted with a question that had nothing to do with corporate liability but rather to do with the reach of US courts. Justice Samuel Alito jumped in next: “What business does a case like that have in the courts of the United States?” Then Chief Justice John Roberts joined the fray. The justices wanted to know if US courts had any role in adjudicating events that took place overseas. Hoffman was under assault and struggled to get back to the question of corporate liability.
Bellinger, sitting two rows back in the public gallery, smiled. The justices were interested in his argument.
Just how interested became clear a few days later. The following Monday, Bellinger got a message on his BlackBerry. The court had asked the parties to come back and argue a new question: whether, and under what circumstances, the Alien Tort Statute applied to events on foreign soil. “It was a stunner,” he said.
Clement was similarly surprised. “We didn’t file the brief imagining that they were going to ask for reargument,” he said. “We filed the brief thinking if the court said something favorable it would help our clients in lower courts.”
When the Supreme court seeks a second round of oral arguments, it can portend a significant ruling. Brown v. Board of Education, the landmark 1954 case that ended segregation in public schools, was decided after reargument. In 2009 a second round of arguments in Citizens United v. Federal Election Commission was followed by a major decision on political spending by corporations and unions.
The court’s decision to consider the wider question could have a major impact. As of August this year, there were 36 claims against corporations under the Alien Tort Statute. If the court had ruled for Shell on the narrower question — that the statute does not apply to corporations — 20 of those cases could be dismissed. However, those 20 cases could be changed to name individual corporate officers rather than the corporations as defendants. This would mean the cases could go forward. And while they would be harder to win, they would still create negative publicity.
“It wouldn’t stop the next wave of litigation,” said Bellinger.
If, on the other hand, the court rules broadly for Shell, deciding that the statute does not apply to events on foreign soil, 29 of the current cases would likely be dismissed. The only cases that would remain are seven in which the alleged abuses took place on US soil.
Earlier this month, Hoffman held a final strategy meeting at New York University Law School. His casual chinos and sneakers belied the seriousness of Monday’s reargument for the survivors of human rights abuses. A ruling against the plaintiffs on the grounds that the events happened overseas would, he said, “rip the guts” out of the Alien Tort Statute.
Reuters
The case pits a Nigerian widow against a multinational oil company. Esther Kiobel and others say Royal Dutch Petroleum (Shell) helped the Nigerian government commit human rights violations against her husband, who was executed in 1995. Shell has denied the allegations and argues that cases involving foreign governments committing atrocities in their own countries do not belong in the US court system at all.
That the justices are considering the sweeping question of whether an entire class of lawsuits can be heard in the United States can be traced to briefs filed by three lawyers whose clients aren’t even involved in the case.
How their briefs came to be sheds light on one of the most closely watched cases before the Supreme Court this term and shows how the efforts of private lawyers pursuing a public policy goal can have momentous consequences.
A ruling against Kiobel could wipe out lawsuits pending against companies such as Exxon Mobil Corp, Rio Tinto Plc and Nestle, which are accused by private plaintiffs of helping governments violate human rights in Indonesia, Papua New Guinea and Ivory Coast, respectively.
Esther Kiobel’s husband, Barinem Kiobel, was arrested in 1994 along with Nobel Peace Prize nominee Ken Saro-Wiwa and others. They had spoken out against the government’s violent suppression of environmental activists who opposed Shell’s oil and gas drilling in Nigeria. Kiobel was found guilty of murder by a Nigerian military court in a trial that the US State Department said lacked due process, and he was hanged in Port Harcourt, Nigeria, in 1995.
With no recourse in Nigeria, Esther, who had received asylum in the United States, filed a lawsuit in federal court in New York alleging among other things that Shell cooperated with the Nigerian military, resulting in crimes against humanity. She relied on a 200-year-old US law called the Alien Tort Statute. While the case was under way, Shell won a ruling in September 2010 from the influential 2nd US Circuit Court of Appeals that said Shell could not be held liable under the statute because it was a corporation. It was a major shock to human rights lawyers, who had brought more than 100 such cases against corporations in the previous two decades.
Teaming Up Again
The ruling quickly caught the attention of John Bellinger, an attorney at the law firm Arnold & Porter. In a series of interviews with Reuters, Bellinger, 52, discussed his actions over the subsequent 18 months. He stressed that he was speaking in a private capacity rather than as a representative of his clients in the Kiobel case.
Bellinger believed Kiobel’s lawyers were likely to petition the Supreme Court. Sure enough, in October 2011 the court agreed to take the case on the narrow question of whether corporations could be held liable under the statute.
Bellinger, who had been State Department legal adviser in the Bush administration, had bigger ideas. He wanted to present the court with arguments he had heard from foreign governments while he was at the State Department. Back then, Australia, Britain, Canada and others had protested when cases were brought under the Alien Tort Statute. They argued that US courts had no business judging events that took place on foreign soil.
When the Supreme Court accepted the Kiobel case, Bellinger started emailing and calling governments that had opposed previous Alien Tort Statute cases to see whether they wanted to file a brief and whether they already had legal representation. But none of those he contacted were ready to commit, leaving him with no one to represent.
In November last year, Bellinger called Shell’s lawyer, Kathleen Sullivan, who had been one of his professors at Harvard Law School. Sullivan, who declined to comment for this story, was preparing to argue the question that was before the Supreme Court at the time: whether the statute applied to corporations. Bellinger says she mentioned to him that former US Solicitor General Paul Clement was writing a brief for IBM in support of Shell. IBM is one of dozens of corporations that are defendants in another case, brought by South Africans who suffered abuses under apartheid.
Clement, a 46-year-old conservative wunderkind, has argued more than 50 cases before the nation’s top court. In late 2011 he was working on some of the nation’s highest-profile cases, including defending Arizona’s immigration law and a federal law that defines marriage as a union between a man and a woman.
Clement and Bellinger had worked together on an Alien Tort Statute case when Clement was solicitor general and Bellinger was at the State Department. When they spoke, the two lawyers decided to team up again. “Paul agreed,” said Bellinger, “we could track a number of the issues we’d argued in government.”
They divvied up the work. To build their case, Bellinger sought to document instances where foreign governments had complained about the statute. Clement’s job was to look at the big picture.
In an interview, Clement said he saw two issues lower courts were grappling with. One was Bellinger’s concern about whether the statute applied to cases where abuses were committed in foreign countries. The other was whether helping a foreign government commit an abuse, rather than committing the abuse directly, was covered by the statute. Only the 2nd Circuit’s Kiobel decision had brought up the new question of whether a corporation, rather than an individual, could be held liable under the statute. It was almost as if the Supreme Court was looking at the wrong question, Clement said.
Like Bellinger, Clement agreed to speak only in a private capacity and not as a representative of his clients in the ongoing litigation.
The two lawyers said they decided they needed to marshal a much broader argument than the one the Supreme Court had asked for in Kiobel. Bellinger spent December 2011 reaching out to clients of Arnold and Porter who were past, current or potential future targets of lawsuits under the Alien Tort Statute.
In February this year they filed their brief on behalf of BP Plc, Caterpillar Inc, ConocoPhillips, General Electric Co, Honeywell International Inc and IBM. They argued that the Alien Tort Statute does not cover events that took place in foreign countries, nor does it apply to those who help others commit abuses, only those who commit abuses themselves. None of the six companies would comment for this story.
Jack Goldsmith, another lawyer who had worked in the Bush administration, filed a similar brief on behalf of Chevron. Goldsmith declined to talk about the pending litigation.
Changing the Question
On a crisp morning in late February, Paul Hoffman, a veteran human rights advocate, stood before the Supreme Court to argue the case for Kiobel. Some 16 years earlier, Hoffman had brought a landmark lawsuit under the Alien Tort Statute against oil company UNOCAL over abuses in Myanmar, which settled in 2005 for an undisclosed sum. Since then, bringing lawsuits against corporations had come to define his career.
Hoffman had hardly opened his mouth, however, when Justice Anthony Kennedy interrupted with a question that had nothing to do with corporate liability but rather to do with the reach of US courts. Justice Samuel Alito jumped in next: “What business does a case like that have in the courts of the United States?” Then Chief Justice John Roberts joined the fray. The justices wanted to know if US courts had any role in adjudicating events that took place overseas. Hoffman was under assault and struggled to get back to the question of corporate liability.
Bellinger, sitting two rows back in the public gallery, smiled. The justices were interested in his argument.
Just how interested became clear a few days later. The following Monday, Bellinger got a message on his BlackBerry. The court had asked the parties to come back and argue a new question: whether, and under what circumstances, the Alien Tort Statute applied to events on foreign soil. “It was a stunner,” he said.
Clement was similarly surprised. “We didn’t file the brief imagining that they were going to ask for reargument,” he said. “We filed the brief thinking if the court said something favorable it would help our clients in lower courts.”
When the Supreme court seeks a second round of oral arguments, it can portend a significant ruling. Brown v. Board of Education, the landmark 1954 case that ended segregation in public schools, was decided after reargument. In 2009 a second round of arguments in Citizens United v. Federal Election Commission was followed by a major decision on political spending by corporations and unions.
The court’s decision to consider the wider question could have a major impact. As of August this year, there were 36 claims against corporations under the Alien Tort Statute. If the court had ruled for Shell on the narrower question — that the statute does not apply to corporations — 20 of those cases could be dismissed. However, those 20 cases could be changed to name individual corporate officers rather than the corporations as defendants. This would mean the cases could go forward. And while they would be harder to win, they would still create negative publicity.
“It wouldn’t stop the next wave of litigation,” said Bellinger.
If, on the other hand, the court rules broadly for Shell, deciding that the statute does not apply to events on foreign soil, 29 of the current cases would likely be dismissed. The only cases that would remain are seven in which the alleged abuses took place on US soil.
Earlier this month, Hoffman held a final strategy meeting at New York University Law School. His casual chinos and sneakers belied the seriousness of Monday’s reargument for the survivors of human rights abuses. A ruling against the plaintiffs on the grounds that the events happened overseas would, he said, “rip the guts” out of the Alien Tort Statute.
Reuters
Subscribe to:
Comments (Atom)