Transnational Litigation Network Fails in Attempt to Undermine Democratic Development of Human Rights Norms in Developing Countries
Tuesday, June 9, 2009
At the 2009 annual meeting of the shareholders of Chevron, trial lawyers and environmental activists who are members of what has been described as a transnational litigation network failed in their attempt to secure passage of a resolution that would have required Chevron to assess the laws of each country in which it does business to determine whether they adequately protect human health, the environment, and the company’s reputation. With only eight percent of the shareholders supporting the resolution, the failure of these transnational litigation network partners to force Chevron to conduct human rights impact assessments eliminates an instrument that these parties could have used to coerce Chevron to comply with countless laws, regulations, and treaties relating to ambiguous and evolving human rights. Instead, in the developing countries in which they do business, Chevron and other transnational corporate officials can engage in meaningful dialogue and human rights reform efforts with government officials and civil society organizations without the outside interference of U.S. trial attorneys and international NGOs.
In part, the impetus for the proposed shareholder resolution, contained on page 82-83 of the Chevron Notice of the 2009 Annual Meeting and the 2009 Proxy Statement, is a lawsuit that is pending against Chevron for the role Texaco’s Ecuadorian affiliate, Texaco Petroleum (Texpet) (acquired by Chevron in a merger with one of its subsidiaries), played in causing environmental damage in the northern Ecuadorian rain forest. By forcing Chevron to submit a report in November 2009 “on the policies and procedures that guide Chevron’s assessment of host country laws pertaining to the protection of human health, the environment and the company’s reputation,” the sponsors of the resolution had hoped to create an incentive for Chevron to settle the Ecuadorian litigation. Of course, by conducting such an expansive assessment of Ecuadorian human rights laws, Chevron would have been implicitly acknowledging that it should not be conducting any business activities that violate those laws. In the eyes of the transnational litigation network, this is the ideal situation—forcing transnational businesses to assess a local country’s human rights laws and thereby render the businesses unable to conduct any business not in exact compliance with such laws. This assessment would include relevant international treaties pertaining to such ambiguous and evolving human rights as the right to health, the right to a clean and safe environment, and the right to share in the benefits of company research.
In short, by forcing transnational companies to conduct human rights impact assessments, the trial lawyers, NGOs, and local government officials comprising the transnational litigation network seek to control all business decisions relating to investments made by transnational businesses in developing countries. The transnational litigation network partners will design the human rights impact assessment instrument; determine whether a company’s proposed business activities comply with international human rights treaty obligations; dictate the remedial actions necessary for the company to comply; and, through government fines, litigation, shareholder activism, or organized boycotts, attempt to hold the company legally accountable for failing to comply in the hope of securing a compromise, financial settlement, or large jury award.
If it is able to impose human rights impact assessments on corporations, the transnational litigation network will increase the likelihood of securing large settlements or verdicts, which it has been unable to obtain through lawsuits. For instance, in Nicaragua, Dole was sued over claims that workers in their fields were becoming sterile from exposure to chemicals. After success in Nicaraguan courts, a U.S. court threw out the case and criticized the lawyers for trying to perpetrate a fraud. In another case, Occidental Petroleum is being sued by indigenous Peruvians in a case being handled by U.S. trial lawyers and supportive NGOs, some of which are involved in the Chevron case. If, in cases such as these, human rights impact assessments are imposed, instead of engaging in meaningful dialogue and human rights reform efforts in the developing countries in which they do business, to avoid excessive litigation emanating from unrealistic or unattainable human rights standards designed and enforced by outside U.S. trial lawyers and international NGOs, transnational businesses will be faced with difficult decisions to reduce or eliminate their presence in such countries. In the end, instead of empowering local civil society organizations for practical and sustainable human rights activity, the transnational litigation network will shortchange democratic discourse and negatively impact the livelihoods of the affected indigenous peoples.
Jim Kelly is the President of Solidarity Center for Law and Justice, P.C., a public interest civil and human rights law firm based in Atlanta, Georgia. The opinions expressed herein are his own.
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