Monthly Archives: March 2012

An inconvenient forum: Thoughts on the Chevron-Ecuador Case

by Nicholas A. Fromherz

As a student of environmental law, resident of the Andes, and former clerk for two federal judges, I have followed the Chevron-Ecuador case with increasing interest—and, of late, increasing concern.  No matter which side we believe, it is clear that the people and ecology of Ecuador’s Lago Agrio region have been affected by the operations of Chevron (or, perhaps more accurately, those of predecessor Texaco and the state-owned Ecuadorian firm Petroecuador).

But that will always be the case with extractive industry—more important factors for purposes of litigation are to what extent and what, if anything, was done in the way of prevention and/or mitigation. This post will not attempt to answer those questions.  More informed individuals and groups have offered a range of answers as to these very points (see here and here), and my own speculation on the matter would only add to what has become a morass of conflicting information.

Instead of analyzing the merits of the case, I would like to discuss two issues that have received less than complete coverage: (1) the unintended and unlikely consequences of Chevron’s effort to remove the case from U.S. federal court on grounds of forum non conveniens; and (2) the institutional and socio-political factors that must be considered when analyzing Chevron’s claims of judicial corruption by the Ecuadorian courts.

Continue reading

Nicholas Fromherz to guest-post on the Chevron-Ecuador case

by Rhodri C. Williams

This being a blog on the legal aspect of conflicts over land and natural resources, it has become increasingly untenable to continue ignoring one of the most bitter and protracted such disputes of all time, namely the Chevron-Ecuador case. At the same time, given the numerous twists and turns this litigation has taken in its various phases, trying to catch up with it, let alone say something meaningful on it, seemed well beyond my faculties.

Based on the reading I have been able to do, I was also aware of the strong passions the case has raised. For instance, this overview in the New Yorker portrays the conflict as a battle of wills between two highly willful lawyers – in effect, the unstoppable victims’ advocate meets the immovable corporate defense attorney. Recent exchanges on Opinio Juris between contributor Kevin Jon Heller, on one hand, and Notre Dame professor Doug Cassell have similarly struggled to keep to the genteel conventions of non-dittohead neighborhoods of the blogosphere (see in particular this exchange in comments).

For all these reasons, I have been cautious in approaching the toxic debate about the toxic lawsuit over the toxic sludge of Lago Agrio. However, I am now all the more happy to be able to provide a forum to repeat TN guest and South American Law & Policy blog author Nicholas Fromherz, who will focus on the broader implications revealed by the case for parties to transnational litigation of all stripes.

Nick’s post has now been published as:
An inconvenient forum: Thoughts on the Chevron-Ecuador Case (30 March 2012)

Costing stability against freedom: The minority dilemma in Syria and Iraq

by Rhodri C. Williams

In a recent discussion with a member of Syria’s Christian minority here in Sweden, I found myself conceding the point that a majority of the population may still support the al Assad regime and that many of its opponents in the region clearly have a political axe to grind alongside their professed humanitarian motivations. It was easy enough to dismiss the notion that Assad had been seriously interested in reform, but my interlocutor’s most troubling argument was that the regime had been – and remained – the sole guarantee of her and her communities’ physical safety.

In a media world almost saturated with analysis of the Arab Spring, an increasingly historically oriented strain of thinking has begun to revive the arguments that had become too threadbare to save Mubarak and Ghaddafi – après moi le déluge: Continue reading

Addressing systemic obstacles to restitution in Kosovo: Legal aid as a fact finding tool

by Massimo Moratti

In post conflict settings in which internally displaced persons (IDPs) seek to regain possession of their properties, the provision of legal aid becomes an essential service for the protection of their rights in the place of origin. The importance of such services is even greater when significant barriers arise between the place of origin of the IDPs and the place where they are actually displaced. These barriers may not only consist in the physical distance between the two places, but also in the fact that the place of origin of IDPs (in this case, Kosovo), and the place of displacement of IDPs (Serbia) hold diametrically opposed views on the future of Kosovo and are evolving into two separate legal systems with little or no institutional communication. Phone lines, mail and official communication are interrupted and, pending reciprocal recognition or an overall settlement of the issue, their resumption cannot be envisaged in the immediate future.

For these reasons, the Delegation of the European Union to Serbia has partnered with the Serbian authorities to provide legal aid services to IDPs from Kosovo as well as refugees from Bosnia and Croatia through Instrument for Pre-Accession Assistance (IPA) funding. Continue reading

Back to the Balkans – upcoming guest postings on restitution issues in Bosnia, Serbia and Kosovo

by Rhodri C. Williams

It is a special pleasure for me to announce upcoming guest postings by two old friends and colleagues from the early 2000s, when we were spending all our time monitoring property restitution for the OSCE Mission to Bosnia (including many quality hours in our adjunct office at Sarajevo’s finest čevabdžinica).

First out is repeat TN guest-author Massimo Moratti, who in earlier incarnations brought property restitution to Prijedor and helped to found one of Bosnia’s first extreme sports clubs, but is now engaged as the Team Leader for a legal advising project assisting IDPs from Kosovo in Serbia (full disclosure: I have been brought on as a consultant to the project to provide occasional help with training and legal strategy). Massimo will begin with a piece describing his team’s efforts to build on their individual casework in generating findings indicating which systemic problems still continue to block property restitution and return. This piece is meant to be the first in a series of guest-postings that will highlight new reports generated by the project as they are published.

The issue of durable solutions for Kosovo IDPs is one of the legacies of the 1990s conflicts in the Western Balkans that has slipped so far from the limelight that many people may assume it no longer exists. I wrote about the issue for Brookings last year, focusing on the steps that the Serbian authorities were taking to facilitate integration of IDPs without precluding their eventual right to return. However, Massimo’s pieces will focus on the responsibility of the (de facto, depending on your viewpoint) authorities in Kosovo, as well as their international partners, to respect IDPs’ property rights and create conditions for their voluntary return.

In addition, my mentor in all things Bosnian, Halisa Skopljak, will provide a first time guest posting highlighting emerging judicial practice in Bosnia that threatens to roll back many of the gains made by a post-conflict property restitution process formally deemed complete nearly a decade ago. Halisa, who monitors implementation of the Bosnian criminal codes at the OSCE and graduated in 2010 from Law School in Travnik, will provide an overview of recent jurisprudence in the Serb entity of Bosnia requiring reinstated property claimants to pay exorbitant costs to wartime occupants for alleged improvements.

The following guest-postings have now been published:

Milica Matijevic and Massimo Moratti, Mainstreaming IDP principles in capacity building efforts: A chance missed in Kosovo (13 July 2012)

-Milica Matijevic and Massimo Moratti, In search of a duty-bearer: No remedy for destruction of property during Kosovo’s international supervision (15 May 2012)

-Halisa Skopljak, Unfinished business: Why return issues remain relevant in the process of European integration (03 April 2012)

-Massimo Moratti, Addressing systemic obstacles to restitution in Kosovo: Legal aid as a fact finding tool (23 March 2012)

Gallery

Musicians abused in Eurovision host-city

For most of us, the word ‘torture’ has been associated with the Eurovision song contest only in a figurative sense. The relationship may now be more concrete for activist musicians in Azerbaijan who are currently being held in incommunicado detention … Continue reading

The World Bank on ‘sleaze timber’

by Rhodri C. Williams

The BBC reported today on a new World Bank analysis of the scope and detrimental effects of illegal logging worldwide. There is of course no shortage of commentary on the challenges facing global forestry management and the consequences of failure to improve our performance. Just last month for instance, TN covered the latest report on the topic by Rights and Resources Initiative, which linked the failure to protect local forestry rights to the broader vulnerability of marginal communities to global patterns of large-scale investment in land and natural resources.

Nevertheless, the World Bank report does a neat job emphasizing the ties between illegal logging, corruption and chronic patterns of weak governance. In other words, the analysis supports a broadening in focus from the ‘blood diamond’ problem of natural resources supporting active conflict to a ‘sleaze timber’ (you read it first here!) emphasis on how natural resources can undermine the conditions for sustainable and equitable development. The report also does a good job foregrounding some fairly shocking statistics:

Every two seconds, an area of forest the size of a football field is clear-cut by illegal loggers around the globe.

The World Bank estimates that illegal logging in some countries accounts for as much as 90 percent of all logging and generates approximately US$10–15 billion annually in criminal proceeds.

Mostly controlled by organized crime, this money is untaxed and is used to pay corrupt government officials at all levels.

The report focuses on criminal justice means to track the income generated by illegal logging and prosecute those responsible. While such approaches are important in terms of both returning ill-gotten revenues and preventing further cutting, they are unlikely in the short term to be able to address the social and cultural devastation wrought where past cutting has erased the spiritual homes and economic resource base of indigenous peoples and subsistence farmers. While it would be good to see more serious efforts to end the enormous damage caused by illegal logging, it is not at all clear how much of it can actually be undone.

Eurovision in Baku: Should the European Broadcasting Union care about human rights?

by Rhodri C. Williams

Last week, TN reported on a wave of forced evictions of Baku residents unfortunate enough to live in the path of a grandiose development scheme meant to beautify the Azerbaijani capital for its hosting of the Eurovision song contest next May. Quite coincidentally, TN also carried an update on the progress of voluntary guidelines meant to ensure that respect for human rights standards was ingrained into the practices of even private, non-political actors. A closer look at the situation in Baku indicates that the latter story might perhaps make salutary reading for the European Broadcasting Union (EBU), which organizes the ‘non-political’ Eurovision contest.

The latest twist in the EBU’s clammy relationship with its current interlocutors in Baku comes from a recent Guardian article that begins with an airing of the debate on the merits of a boycott of this year’s Eurovision contest. The piece quotes Emin Milli, a blogger beaten and jailed in 2009 over critical YouTube videos, on the importance of the event as a chance to focus the international spotlight on Azerbaijan and its poor record in human rights and democracy. However, this courageous assertion is followed by the EBU’s rather less obviously noble views on the issue of boycott:

Azerbaijan, which won the right to host Eurovision after winning the contest in 2011, has given the organisers, the European Broadcasting Union, a guarantee that foreign delegates will be secure and free from any censorship during their stay.

“We would be very disappointed to have any boycotting,” said an EBU spokesman on Saturday. “We believe strongly that Eurovision is not political. In real life, politics do come up at Eurovision. There was some talk of boycotting England in the 1970s over what was happening in Northern Ireland. But Eurovision can act as an agent of change. It is an event to unite countries and communities and bring understanding. It’s important to know that Azerbaijan’s prime minister has given a guarantee of press freedom during the contest, although we cannot ask for a guarantee for the next 10 years also.”

“It is an astonishing guarantee to have to give,” said Milli. “What does it say about Azerbaijan for the rest of the time?”

This is indeed a fascinating wrinkle. First and most obviously, of course, with regard to the Azerbaijani government, which, as Milli notes, has just conceded that it is not prepared to guarantee media freedom or refrain from censorship at any time other than during the scattering of days when the Eurovision contest is in full swing. How, one wonders, does this apparent policy of default media un-freedom comport with Azerbaijan’s longstanding human rights commitments as a member of the Council of Europe and a signatory to numerous UN rights treaties?

However, even more interesting is what this quote implies about the EBU’s role in affirming (or ignoring) respect for human rights. In the long quote above, the EBU spokesperson begins by denying that the song contest is political, then goes on to defend it as a means of bringing about positive political change, and then brandishes a one-week suspension of Azerbaijan’s media clampdown as an example of such positive change. Should we be impressed?

First, one might take a substantive rights approach. Is a temporary suspension of human rights violations involving censorship sufficient? The US Department of State human rights report indicates a number of other systemic issues in Azerbaijan as recently as 2010. Perhaps EBU might have flexed its muscles a bit. How about extending the one week suspension to cover torture and killing in official custody, for instance? Arbitrary arrest and detention of political activists? Restrictions on political participation and religious freedom? TN readers might suggested forced evictions as well, of course … ?

The absurdity of the situation quickly becomes evident. What would a ban on police torture be worth if it ended as soon as the disco balls came down? Is a temporary ban on media repression worth more? However, at a deeper level, the absurdity of the situation reflects a lack of engagement with what human rights actually mean. Azerbaijan has already committed itself to European institutions and its fellow UN member-states to suspend all such violations for all time. It has acceded to or ratified numerous human rights conventions and is, by all accounts, manifestly failing to comply with these commitments.

In this context, the EBU misunderstands both its role and its power. Its job is not to induce promises of good behavior from Baku. That has already been done and in a legally binding manner. The EBU is no more required to act as a judge of Baku’s compliance. Human rights NGOs, UN treaty-bodies and mechanisms and the European Court of Human Rights have done all the heavy lifting there. But in the face of such overwhelming evidence of skeletons in the closet of the next Eurovision host, the EBU should have anticipated that its ostensibly non-political role would be politicized – both by a regime craving international prestige as a substitute for clear democratic legitimacy and a population craving political rights.

As Europe expands eastward, it bears both carrots and sticks. The Eurovision contest, however silly it might appear to jaded western Europeans, is still seen as a juicy carrot in some quarters. While its administrators are not required to take over the role of wielding the stick of human rights, they should be aware that failure to ensure a minimum degree of coordination and policy coherence between these two approaches will undermine both. This is particularly evident where, as in the case of Baku’s recent evictions, violations of European human rights standards are undertaken in direct connection with hosting the Eurovision contest.

It is high time for the EBU to go beyond the mantra of being non-political and explore how it can complement, rather than contradict, the effort to build a democratic Europe founded on respect for human rights.

FAO Voluntary Guidelines on land, fisheries and forestry governance near approval

by Rhodri C. Williams

The Food and Agricultural Organization (FAO) has announced the recent conclusion of a lengthy negotiation process to shape a set of Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security. The resulting final draft will soon be published and is meant to be adopted at a special session of the body’s Committee on World Food Security (CFS) in mid-May. Afterwards, it is expected that the document will provide authoritative guidance to governments in drafting laws and policies in this area, with its legitimacy derived from the inclusiveness and extensiveness of the three year drafting process.

The scope of the voluntary guidelines is broad, and includes “promoting equal rights for women in securing title to land, creating transparent record-keeping systems that are accessible to the rural poor, and how to recognize and protect informal, traditional rights to land, forests and fisheries.” While numerous recent cases of abuse of state prerogatives over customarily held land demonstrate the needs for such guidelines, the experience of actors such as the International Development Law Organization (IDLO) counsels a degree of caution. As noted by the IDLO’s Erica Harper in these pages, prescriptive approaches to customary systems have tended to be counterproductive in the absence of an intimate understanding of local context:

…what works in a given country context is situation-specific and contingent upon a variety of factors, including inter alia, social norms, the presence and strength of a rule of law culture, socio-economic realities, and national and regional geopolitics. In order to make strategic decisions on what is likely to yield sustainable and positive impact, development practitioners need to possess in-depth knowledge of the target country, its people and its customary legal systems, as well as the theories and practicalities pertaining to legal development and customary justice programming.

At the same time, the scope of the new guidelines is limited in certain interesting respects. For instance, the FAO PR notes that they “come within the context of intensifying competition for land and other natural resources resulting from a variety of factors, including population growth, urbanization and large-scale purchases of farmland in the developing world by both overseas interests and domestic investors.” However, unlike the FAO, IFAD, UNCTAD and World Bank Principles for Agricultural Investment, the new guidelines provide only indirect guidance on addressing the ‘global land-rush‘.

In fact, the FAO has a separate drafting process underway to address large-scale land investment. As reported in TN last January, the FAO commissioned a project team to examine the issue of land tenure in the context of international investments in agriculture, developing recommendations for the High Level Panel of Experts on Food Security and Nutrition (HLPE) of the CFS. The issue had been discussed at a policy roundtable at the CFS’ 2010 session (contrast the erudite overview provided by ILC with the Quatar National Food Security Program’s impenetrable defense of responsible investment). With the issuance of a July 2011 report and further side-event discussion at the October 2011 CFS session, the process seems to be underway.

However, the foreword to the July 2011 report clarifies that the issue is to be handled in a separate standard-setting process, resulting in “the elaboration of principles for responsible investments in agriculture with due consideration to the framework of the Voluntary guidelines on the tenure of land, fisheries and forests.” Muddying the waters slightly, the FAO also cooperated with Transparency International to develop a December 2011 working paper on how corruption in the context of weak governance undermines both land access and development. As reported here in TN, pervasive corruption in transnational land investment may be the crucial damning factor that has swung development opinion against the practice in recent months. In its press release, however, FAO referenced the forthcoming voluntary guidelines as its response to bad governance practices without mentioning the expert group on international investments.

More broadly, the new FAO guidelines will provide new material for the ongoing debate over corporate social responsibility approaches to land and natural resource exploitation, as well as non-state actor abuses more broadly. Two years ago, Chris Huggins posed the basic question of whether the lengthy and uncertain route of punitive enforcement measures should be chosen over the more forthcoming but less tested route of voluntary compliance. This question arguably remains as debated today as it was then. However, it is worth noting that Peter Spiro recently waxed optimistic in Opinio Juris, raising the possibility that Apple’s recent accession to the Fair Labor Association standards and auditing process could be “the biggest thing ever to happen in the world of private, rights-related codes of conduct” and “a major test case for the efficacy and legitimacy of non-governmental rights regimes.” So, onward FAO, and let a thousand voluntary standards bloom!

Euroviction: Azerbaijan demolishes homes for a song (contest)

by Rhodri C. Williams

Hat-tip to TN guest-author Anneke Smit for pointing out Azerbaijan’s most recent contributions to the busy field of forced evictions. (And apologies to ToL for partially appropriating their pun. I only realized later – proof, one hopes, that great minds do think alike…)

In many respects, recent rounds of ‘urban renewal’ in the Azerbaijani capital, Baku have followed an all too familiar forced evictions playbook. For instance, according to a February report by Human Rights Watch, the authorities in the oil-flush country have violated their own laws and constitution as well as their international obligations through a well-known litany of omissions including failure to provide notice of evictions, no meaningful consultation or recourse, no protection of residents’ health or safety and inadequate compensation and resettlement assistance.

Moreover, in a manner befitting one of the remaining outposts of the former Soviet Union that has made few concessions to even managed democracy (and may not need to as long as the petrodollars keep flowing), the Azerbaijani authorities also appear to have carried off the evictions with a certain panache. For instance, Zulfali Ismayilov, the senior municipal official in charge, described displaced residents as “greedy” in a press conference covered by ToL, and then went on to make one of those off-the-cuff statements that speak more loudly than volumes of best-practice guidelines and workshop conclusions:

Ismayilov would not answer any additional questions from a reporter. But when a member of one of the last families in the building said she would immolate herself if police came to forcibly remove her, Ismayilov offered to help her do so.

Such an offer can only with some difficulty be reconciled with the embrace of human rights values professed by the Ministry of Foreign Affairs of Azerbaijan. In fact, the gap between the MFA’s windy declaration of Azerbaijan’s official aspirations and Mr. Ismayilov’s terse expression of its actual governance approach is precisely what makes these evictions shocking. In a country with current membership in the Council of Europe and long-term aspirations to European integration, forced evictions are clearly counterproductive as well as wrong.

However, the irony of Baku’s most recent demolitions is that they have been undertaken for the express purpose of beautifying the site of next May’s Eurovision song contest, an annual event dedicated to promoting “the cultural union of Europe”. In explaining the historical paths along which Azerbaijan has converged with Europe and its annual glam pop extravaganza, the official Eurovision website highlights both Azerbaijan’s own painful experience of conflict-based internal displacement and its aspirations to democratic rule of law:

In spite of the sad results of Armenia’s aggression against Azerbaijan (Armenia occupied the territory of Nagorny Karabakh and 7 neighboring districts. One million out of total population of eight million are refugees), our country mobilized its potential and had great successes in building democracy. Azerbaijan manages to successfully overcome the difficulties and continues making important and firm steps towards the establishment of a democratic and lawful country with civil society.

While it is true that Azerbaijan has struggled to cope with the effects of conflict and internal displacement, the current imbroglio over the Eurovision contest demonstrates a failure to learn from these experiences. As reported recently by the Brookings Institution, for instance, the fact that the Azerbaijani authorities initially allocated private homes to internally displaced persons on an ad hoc basis and then failed to build alternative housing that would allow the quick return of the occupied properties to their owners led to findings of violations by the European Court of Human Rights. In a country virtually sloshing with oil revenues, such an eventuality was not only unfortunate but also unnecessary.

Similarly, the current botched and abusive nature of the evictions of residents of the nascent Eurovision zone appears to result almost entirely from poor planning and disdain for legal niceties. On one hand, Human Rights Watch notes (Section II) that respect for the procedural requirements for resettlement under Azerbaijani law was nearly impossible in light of the narrow window between the country’s victory in last May’s contest and its hosting of the 2012 contest in two months. However, this would seem to be a rationale for at least minimizing the scope of resettlement necessary, e.g. by refraining from demolishing a nine-story building housing 72 families simply because it “blocks the view from the Crystal Hall.” Moreover, while Azerbaijan may not have had time, it certainly has money, suggesting that any deficit behind the failure to pay adequate compensation to victims (HRW, Section V) may have been of a democratic rather than a fiscal nature.

It is undoubtedly difficult to keep politics out of Europe’s premier kitsch culture event. In the case of Azerbaijan, this is most clearly indicated by the tersely worded notifications on both Azerbaijan and Armenia’s official Eurovision sites that the latter has sent its regrets and will not be attending. While the failure of the authorities in these neighboring countries to resolve their territorial conflict is unfortunate, it reflects poorly on them and not the Eurovision contest itself. However, the new evictions in Baku raise the question of whether the Eurovision contest risks damaging its own standing. When pressed by HRW (Section VII), the European Broadcasting Union disowned the evictions on the grounds that the ‘improvements’ behind them were planned long before Azerbaijan won the right to host Eurovision:

[Joergen Franck, director of television for the EBU] reiterated the EBU’s position that there is no connection between the expropriations and the Eurovision Song Contest, and said the people in the area would have been evicted even if the 2012 Eurovision Song Contest were to be held elsewhere. “The EBU does not believe its brand has been tainted by government actions or by articles in the press,” he told Human Rights Watch. Franck said that although the EBU is seeking explanations from the Azerbaijani government about development plans in the area, the EBU would not be seeking assurances from the government about addressing eviction-related abuses. Doing so, he said, would interfere with the non-political character of the Eurovision Song Contest. Franck also said that organizations could take advantage of the “bright spotlight” the Eurovision contest was throwing on Azerbaijan in order to highlight human rights violations, and that this was “a good thing.”

While HRW dispensed with these arguments by noting that the current rationale and the timing of the evictions is clearly linked to Baku’s impending boy band invasion, there may be a deeper question involved. Eurovision celebrates European culture in the spirit of unity through respect for diversity. As a result, the winning formula typically involves spicing up a generically catchy piece of synth-pop with some pan pipes or dancers in rustic smocks or terrifying Nordic monster outfits in order to reinforce the idea that Europe is not a bureaucratic steamroller of the things that distinguish member states in inoffensive and enjoyable ways. However, if there is any type of culture that truly distinguishes ‘Europe’ as a post-World War II project and a sum that is greater than its parts, it may well be the culture of respect for democracy and human rights. Be prepared for a clash of cultures in Baku.