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.

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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.