News

Huff Post BHR Blog Series Complete

The fifth and final installment of The Huffington Post blog series on Business & Human Rights is now live here. A page describing the series and linking to each part is here. I have been getting great feedback about it, and it is clearly spurring important discussion — including a formal review process established by the Business & Human Rights Resource Centre to gather a wider range of opinions about some of the issues I raised about its Company Response mechanism in Part IV of the series.

The whole series should get more play in the coming days and weeks as we approach the five-year anniversary of the UN Human Rights Council’s historic endorsement of the UN Guiding Principles on Business & Human Rights, which really started things going in the field.

The writing process has certainly been enlivening for me — at the end of it I have 10x as many things I want to look into as when I started. But time to consider other forums and formats, plus take a little break for summer!


New installments to Huff Post BHR blog series

[New Parts III and IV added. Probably one more part on its way to finish it up.]

“Business & Human Rights” (BHR) is an international legal and political framework, arising from the UN Guiding Principles on Business and Human Rights(UNGPs), that just in the last few years has revolutionized how the world’s leading multinational corporations are talking about and engaging with human rights. As part of BHR, states are drafting National Action Plans, companies are drafting Human Rights Policies and conducting Human Rights Due Diligence (of both their own conduct and the conduct of companies in their supply chains), and civil society groups are both celebrating these efforts and scrutinizing the results.

In this blog series, Aaron Marr Page, a law professor and human rights lawyer with over a decade of on-the-ground experience with indigenous and other affected communities around the world, takes an appreciative but critical tour of core BHR concepts, debates, practices, and institutions, digging into the mysterious alchemy — the magic “&” — that has so quickly and forcefully brought the business and human rights communities together, and asking important questions about whether and how this bond will endure.

Part I: The BHR Boom Years
Setting aside old animosities creates a dynamic new space; but does it have the tools and fortitude to achieve real results?

Part II: A Pendulum Swing?
As the business community starts using the BHR discourse to reframe what human rights success and progress looks like, some leading BHR voices express concern.

Part III: The Missing Institution
Questions about the almost built-in lack of leadership behind the “Third Pillar” of BHR that was supposed to demand real remedies for human rights victims.

Part IV: The Rules of the Game
Allegations of corporate human rights abuse are raised — and responded to — in an important weekly dialogue that looks like a “level playing field,” but doesn’t always work out that way.

Part V: [Forthcoming]


New blog series on Business & Human Rights

I am in the process of rolling out a Huffington Post blog series on the topic of Business & Human Rights (BHR). The first two blogs introduce the topic and lay the foundation for a series of slightly more challenging analyses and criticisms that will be forthcoming in the next few weeks. Always happy to hear feedback by email or Twitter.

 


Response re the Challenges of Defending Human Rights Defenders

Ted Folkman at Letters Blogatory posted a rather dismissive take on a recent letter I signed to the UN Special Rapporteur for Human Rights Defenders (now on Twitter!) on the situations facing the human rights defenders in the Chevron/Ecuador case. My response below (also published by Ted).

I’ll briefly respond to one point and add one observation.

As someone who watched things unfold, I can say that Ted’s speculative claim that “the reason Chevron’s threats were so potent was because there was some underlying wrongdoing that made Patton Boggs and the others perceive a serious risk of liability” is wrong. It is true, as he says, that some “allies” like Burford were “spooked,” in the sense that as soon as they heard Chevron’s allegations they starting looking for the exit (including, in Burford’s case, by coordinating with Chevron behind their own clients’ backs). Others were the victims of flat-out, unapologetic economic extortion campaigns, such as folks from Stratus Consulting, the company that Chevron brought to its knees by crushing it with litigation, intervening in a dispute with its litigation insurer to make sure the insurer would not cover the litigation expenses, and sending smear-campaign letters to Stratus’ other clients. (How we all tolerate this kind of conduct as just “part of the game” is beyond me.) But allies who took the time to unpack Chevron’s allegations and really understand the facts did not end up abandoning ship.

Ted thinks Patton Boggs is an example of someone “spooked” on the facts, like Burford, or a victim of extortion, like Stratus. Not so. In reality, there were two Patton Boggs—the team that actually worked on the case and understood it, and the rest of the firm that couldn’t care less (and was reportedly mystified at how the firm ended up going up against a wealthy corporation like Chevron in the first place). A great untold story in this case is the heroism of the Patton Boggs team on the case. These men and women worked like dogs, for years, long past when there was any money coming in or any prospect of money. They faced constant attacks not just from Chevron but from corporate apologists in their own firm. And they never gave up on their clients. The larger firm settled with Chevron without telling them, to salvage a merger that was driven by economic considerations far beyond the Chevron case. The team that worked on the case was forced out of the firm in the process. Yet to this day they are proud of what they did and they should be.

Now my observation. Ted’s approach to the human rights perspective here—basically, encouraging “askance” as to whether the Ecuadorian case defenders should really be defended in light of the charges made against them by the very opponent the defenders are resisting—is exactly why the whole “human rights defender” and “environmental defender” movement, despite overflowing attention in the last few decades, is often considered weak at best. A recent report tallied 156 human rights defenders killed in 2015, with numbers of killings and harassment increasing year by year. Members of our team in Ecuador have braved anonymous death threats and other forms of harassment for literally decades. Continue reading


Endless Litigation Dept. (cont.)

As has been recently reported (Vice, Courthouse News) the arbitral tribunal hearing Chevron’s baseless “denial of justice” claim against the Republic of Ecuador (through which Chevron hopes to put Ecuador “on the hook” for the environmental judgment that private Ecuadorian plaintiffs won against Chevron in Ecuador’s courts) conducted a series of “judicial site inspections” of the abandoned waste pits and other contamination at Chevron’s former oil operations sites in the Ecuadorian Amazon. The transcripts of the inspection proceedings are available here.

For someone who was intimately involved in the judicial inspections process in the original case back in 2005-2006, reading the transcripts is an experience thick with déjà vu. The same scene: roosters crowing, sudden torrential rains, heat and insects, strained jokes about trying to hold it all together in a jungle setting. The same arguments: the open pits, the hidden pits, the produced water dumping system, the bogus remediation; and from Chevron: the RAP, the RAP, the RAP (i.e., the settlement which Chevron pretends released it from taking responsibility for the majority of the contamination, except that the private claimants in the Ecuador case were not party to it and in fact it expressly stated that it did not apply to their claims).

In between now and then, the same sites — ridiculously obviously contaminated sites — have been examined again and again and again and again, by government investigators, expert teams for various parties in various litigations, various human rights delegations, and countless celebrity and other observers. How long can Chevron continue to drag the world through this charade?

After enough people visit, will we at some point reach a critical mass? As Ted Folkman at Letters Blogatory astutely writes, “there is a bit of res ipsa loquitur that works in favor of the Ecuadoran position” when a person leaves the safe confines of the United States (where Chevron has successfully tainted the story of the Ecuador case with a blizzard of false allegations of fraud and wrongdoing) and arrives to see the pits themselves in all their horrible glory. “There are, of course, experts on both sides of the case, but when you are at the pit, you can see the oil, and a layman can simply look at the topography of the site and see how the oil would likely migrate.”

In fact, with all respect to Ted, what most people see is not migration of contaminants, but toxicity, sickness, and death, especially if their visit is combined to any degree with discussions with local residents about their invariably tragic family histories. To the extent most peoples’ thoughts stray into the legal realm, they typically start with questions of criminality, recklessness, negligence, and a commensurate call for justice.

A decade ago, shortly after I left full-time work on the case, Chevron made a public promise that it would inflict “a lifetime of appellate and collateral litigation” on the plaintiff communities if they dared to continue with their case and push it through to judgment. One cannot argue that an oil company like Chevron is not wise in the ways of the world and the halls of power; it knew it could inflict just such a fate, and it has.

Chevron has laid its cards on the table. It knows what it is doing. Now it’s our turn — “our” most broadly, basically everyone in society who is not Chevron or a reflection of its bottomless self-interest. What are we doing? The world will have to change if this company is going to change course. Maybe it is changing already.

Just clean it up, for f***s sake