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8 Mar 2016

Marco Simons, Zamira Djabarova, and Tamara Morgenthau, EarthRights International

Innovative Strategies for Supporting Communities’ Demands for Accountability

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Though the overall trend is positive, we’ve become accustomed to significant setbacks in the fight for global corporate accountability. But setbacks also lead to innovation, and Business & Human Rights Resource Centre’s latest annual briefing on corporate legal accountability spotlights several innovative strategies to fight corporate power, including some EarthRights International (ERI) strategies.

ERI focuses on working directly with vulnerable communities and finding the most effective legal and advocacy strategies to defend their rights. We’re always seeking to expand our toolkit, and to make our tools available more broadly. Two of our recent efforts focus on trying to put more power directly into the hands of communities and their local advocates.

Foreign Legal Assistance

Foreign Legal Assistance (FLA) actions enable local lawyers and advocates to more effectively challenge corporate abuses in their own legal system.

The FLA is a U.S. statute that allows advocates from other countries to obtain documents and testimony to use in their cases. Any “interested person” in a foreign lawsuit or other legal process can ask a U.S. court to order U.S. corporations to turn over relevant documents and testimony. Ironically, the FLA has been used most frequently by corporations, including Chevron which tried to obtain evidence from many sources for use in the long-running environmental litigation in Ecuador. So we pioneered the use of the FLA for public interest cases, and we’ve filed three FLA actions so far – all of which have been successful in obtaining evidence. (Read more about those here.)

In many countries, lack of access to evidence is a significant barrier to accountability, and FLA actions can help remove that barrier. Communities can seek information from corporations present in the U.S., including parent companies that local courts may have difficulty reaching. This can send a powerful message to corporations that operating through subsidiaries does not shield them from disclosure and scrutiny. And, from our experience, the information obtained can be useful in helping establish the facts alleged in the action. FLA actions complement domestic proceedings and support actions for liability of subsidiaries; however, it is important to remember that these actions do not remove the need for accountability of parent corporations.

FLA actions can also help shed light on the relationship between corporations and governments, which can clarify who should be responsible for abuses. In one instance, Elmer Eduardo Campos Alvarez, a Peruvian campesino farmer, was shot and paralyzed while protesting Newmont Mining’s Conga mine project in the Peruvian highlands. Elmer filed a criminal complaint against the Peruvian police, and then brought an FLA action to obtain documents from Newmont in the U.S. to assist his lawsuit. The action requested information on the level of coordination between the police and the mining company. Mr. Campos then submitted the evidence obtained from Newmont in the U.S. to the court in Peru and asked the Court to add Newmont’s local subsidiary, Minera Yanacocha, as a defendant in the criminal case.

From a broader standpoint, FLA’s build international partnerships and networks in the fight for redress and accountability. They enable lawyers in different countries to work together, and they enable local advocates to more effectively represent vulnerable communities.

In order to amplify this strategy, ERI is working to launch a Foreign Legal Assistance Network, a group of U.S. lawyers who will work pro bono to assist communities and lawyers around the world with FLA actions. We hope that others who share our excitement about this tool’s potential to contribute to justice and accountability will join the network and volunteer on these cases, giving more power to community legal advocates in other countries.

Community-Driven Operational Grievance Mechanisms

Another strategy that aims to put the power of accountability in the hands of local communities is by using non-judicial, operational-level grievance mechanisms (OGMs) – a concept that has been endorsed by the UN Human Rights Council. Although OGMs are becoming more and more prevalent, many of these mechanisms replicate or exacerbate the existing power imbalance, with companies designing, operating, and controlling the mechanisms, which typically do not provide effective remedies. That’s why ERI is trying to develop an alternative, community-driven approach. (Learn more about some of the concerns about the use of OGMs here).

Working with communities of farmers displaced for an industrial development known as the Thilawa Special Economic Zone in Myanmar, ERI has embarked on a process to design a community-driven OGM (CD-OGM). The idea is to shift the power paradigm from the outset, where the communities design an OGM and invite company participation, rather than vice-versa.

A few disclaimers here: while ERI believes that a truly community-driven OGM can provide effective remedies in appropriate circumstances, we do not endorse the use of OGMs as an alternative to legal action in all cases. The possibility of a CD-OGM does not take away communities’ right to reject a company project altogether. Further, while CD-OGM is an additional process that communities can use to seek remedies for harms caused by companies and to hold companies to their promises, the mechanism does not replace any judicial mechanisms that should be in place.

We challenge companies that embark on projects in developing countries to respect the people who live there. We are developing a model that can be adapted by communities in different contexts. To companies and governments who claim to be committed to community economic development, we will be able to say, “Here is a model developed by communities and for communities, which should be the basis for negotiation with the communities.”

One factor that complicates CD-OGMs and other forms of community representation is the reality that communities rarely speak with a single voice. Any group of people will be made up of differing interests and internal disagreements. Companies often exploit these differences to create and deepen a divide within a community. In the Thilawa example, the project itself – by relocating the people – has already disrupted the community and its decision-making structures. 

Innovative work comes with new challenges. When demanding that corporations respect communities, it is important for NGOs to do the same, and to commit to the necessary process and time it takes for communities to develop their position. The design and implementation of CD-OGMs offers organizations like ERI a different role – that of a facilitator, providing resources on best practices, drawing from past examples, and following communities on their decisions. At the same time, our role as lawyers remains important because CD-OGMs should be seen within the wider context of all available remedies, so that the full array of legal options informs the communities’ choices.

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The FLA and CD-OGM strategies are only two of many ways to support communities in their demand for corporate accountability. They are an example of what can be achieved when groups work together across borders. We are excited about their potential and hope that they can be developed and used by our partners and communities across the globe, working towards the same goals.

The Community-Driven Operational Grievance Mechanism Project is a project of EarthRights International and the Centre for Research on Multinational Corporations (SOMO).

If you are interested in volunteering with the Foreign Legal Assistance Network please send an email to [email protected] with “Foreign Legal Assistance” in the subject header.