Practitioner's Corner

• Author: Roxanne Sher-Skelton
• Pages: 05

A Conversation With Earth Rights International's Rick Herz

Page 14

Rick Herz is an international environmental and human rights advocate and the author of the widely read and much acclaimed article "Litigating Environmental Abuses Under the Alien Tort Claims Act: A Practical Assessment" (40 Va. J. Int'l L. 545). He is the Litigation Director of Earth Rights International (ERI) where he divides his time between groundbreaking litigation and providing advice to human rights and environmental activists on international law. He is an expert on using the Alien Torts Claim Act to bring cases in United States' courts when transnational corporations abuse the environment abroad.

SDLP: Who founded ERI?

Herz: ERI was founded by Tyler Giannini, Ka Hsaw Wa, and Katie Redford. Tyler and Katie went to the University of Virginia School of Law with me and focused on human rights law. Katie had spent some time teaching in Burmese refugee camps in Thailand before attending law school. Ka Hsaw Wa is a member of the Karen ethnic nationality in Burma, and has been a human rights activist since he fled Burma in 1988. He is a recipient of the highly esteemed Goldman Environmental Prize. He has also won both the Reebok Human Rights Award and the Conde Nast Environmental Award.

SDLP: What are the goals of ERI?

Herz: ERI is committed to the idea that human rights and environmental protection are fundamentally interrelated and works to promote links between both fields. Repression of indigenous people during development projects has allowed polluters to harm the environment without dissent and the resulting environmental degradation has caused terrible human suffering.

SDLP: Do you think that there is a human right to a healthy environment?

Herz: Yes. International law has come to recognize a right to a minimally adequate environment. When environmental degradation is so severe that the environment can no longer sustain the people who live in the area, their resulting loss of health and life amounts to human rights abuse.

SDLP: Tell us about what ERI is doing to advocate for the environment and human rights.

Herz: ERI has a multifaceted and creative plan of attack. For example, we are co-counsel in several major lawsuits, we do human rights monitoring of development projects in Burma, we run a school in Thailand where we train indigenous people to be human rights and environmental activists and we have replicated the school in the Amazon.

SDLP: What lawsuits are you involved with?

Herz: Currently, ERI is co-counsel in four lawsuits. In Doe v. Unocal Corp., ERI represents Burmese peasants who suffered human rights abuses by Burmese army units that were securing a Unocal gas pipeline. The abuses were egregious, including forced relocation, forced labor, rape, torture, and murder. In September of this year, we received a landmark ruling from the U.S. Court of Appeals for the Ninth Circuit. The Court concluded that corporations can be held legally responsible under the Alien Tort Claims Act if they aid and abet violations of international human rights norms in foreign countries. The Court also found that we had presented enough evidence that Unocal aided and abetted the Burmese military's abuses to survive summary judgment.

This ruling follows on the heels of a June 11, 2002 ruling in our companion state case against Unocal, in which a California Superior Court held that we had submitted enough evidence that Unocal's project hired the military to survive summary judgment. The state case is now headed for trial in February 2003. The state court's decision makes the case against Unocal the first in U.S. history in which a corporation will stand trial for human rights abuses committed abroad.

SDLP: Tell us about the other three cases.

Herz: In Wiwa v. Royal Dutch Petroleum Co., the plaintiffs are charging that Royal Dutch/Shell oil group was complicit in human rights abuses in Nigeria. The particular abuses at issue are the November 10, 1995 hangings of environmental and community leaders Ken Saro-Wiwa and John Kpuinen, the arbitrary detention of Owens Wiwa, and the shooting of a woman who was peacefully protesting the bulldozing of her crops in preparation for a Shell pipeline by Nigerian troops called in by Shell.

In Bowoto v. ChevronTexaco Corp. the plaintiffs are also indigenous to the Niger Delta region of Nigeria. They seek redress for the shooting of peaceful protestors at Chevron's Page 15 Parabe offshore platform and the destruction of two villages by soldiers in Chevron helicopters and boats. Bowoto and Wiwa are good examples of one particular way in which human rights and environmental protection are inextricably intertwined. In both cases, the Nigerian military committed abuses specifically to suppress peaceful protests against Chevron and Shell's destruction of the environment.

In Bano v. Union Carbide Corp., residents of Bhopal, India, have filed suit against Union Carbide for toxic pollution and contamination from a Union Carbide pesticide plant. This is the same infamous plant that leaked poisonous gas, killing over 5,000 people in 1984.

ERI has also submitted amicus briefs in several cases including Beanal v. Freeport-McMoRan, in which victims of human rights and environmental abuses associated with a massive mine in Indonesia filed suit against the U.S. company that operated the mines; Arias v. DynCorp, in which thousands of Ecuadorian villagers harmed by the spraying of toxic herbicides by a contractor for the U.S. government's anti-narcotics program in Colombia sued the contractor; and Jota v. Texaco and Aguinda v. Texaco, a suit filed by residents of the Ecuadorian and Peruvian Amazon who were harmed by massive pollution from Texaco's oil operations.

SDLP: Your article, "Litigating Environmental Abuses Under the Alien Tort Claims Act: A Practical Assessment" maps out how to bring these types of cases, can you give a quick summary for our readers?

Herz: This article demonstrates that some victims of environmental abuses caused by transnational corporations may have strong claims in U.S. courts under the Alien Tort Claims Act. The article reviews voluminous sources of international law and shows how they establish norms of customary international law that plaintiffs can rely on to bring ATCA claims for redress of egregious environmental devastation. It explains that plaintiffs in appropriate circumstances may have claims asserting the right to life, the right to a healthy environment, crimes against humanity, race discrimination, genocide and cultural genocide. The article also discusses many of the arguments corporate defendants have used to try to dismiss ATCA environmental and human rights cases.

SDLP: Almost every case you mentioned involves an oil company. Are they all bad?

Herz: I don't know if they are ALL bad, but it is unfortunately, true that here are lots of examples of oil companies being complicit in human rights abuses and harming the environment and a number of lawsuits have been filed.

SDLP: What effects are these cases having on corporate behavior?

Herz: It is difficult to know what effect these lawsuits are having in boardrooms. We know corporations follow these cases closely, but will it affect their actions? We don't know if they are passing up opportunities or being more careful about the way they implement projects because of human rights and environmental concerns. But I would have to believe there is a strong deterrent effect. It is important to note though that litigation, is not the only tool for pressuring corporations. Public pressure, both here and abroad, plays an important role. Shell and Chevron for example are facing serious protests from the ethnic groups in the regions that they have chosen to develop.

SDLP: What is the biggest problem you face in your work?

Herz: I think the biggest problem is aa corporate culture that assumes the corporation can act with impunity, and that is willing to give a higher priority to its project than the lives of local people.

SDLP: Tell us about ERI's work in Burma.

Herz: ERI has an incredible program on the Thai-Burma border monitoring abuses and training human rights and environmental activists. For years, he military regime in Burma has used the forced labor of its indigenous people to help build development projects that destroy Burma's natural resources. Citizens are also often forced to relocate without compensation, and they have suffered rape, torture and death at the hands of the soldiers forcing them to work or relocate. ERI trains local activists to go into Burma and monitor human rights and environmental abuses. ERI distributes the information that activists gather around the world. Hopefully international attention will someday bring democracy to Burma. SDLP: What are your thoughts on the recent World Summit on Sustainable Development? Do you think it was an effective conference?

Herz: I really don't know.

SDLP: Many of the corporations being sued by ERI and others for human rights and environmental abuses abroad are household names in the U.S. Why do so few Americans seem outraged about the things that some of our most familiar corporations are doing to people throughout the world?

Herz: Largely because I think most Americans simply don't know about the kind of human rights abuses and environmental devastation these companies are inflicting. If they did, I have no doubt they would be appalled. I don't think most Americans want their gasoline to be produced from the blood and tears of villagers in the developing world.

SDLP: How can students get involved?

Herz: Here in Washington we have law student interns every semester and in the summer. We also have legal interns in our Thailand office.