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	An elusive justice - holding parent companies accountable for human rights abuse by Joe Westby Amnesty, Open Democracy, Business & Human Rights Resource Centre   A UK judgement on Shell’s operations in Nigeria yet again shows the need to prevent powerful multinationals hiding behind their subsidiaries to dodge accountability for human rights abuses.   Recently, the UK High Court threw out a case brought against oil giant Shell by two impoverished communities in the Niger Delta. It is a blow to the communities in their struggle for justice after suffering years of devastating oil spills.   But the judgement also has wider implications for corporate accountability, making it more difficult to bring future legal cases against UK companies that abuse human rights abroad. As such, the ruling goes to the heart of a situation in which multinational corporations enjoy an impunity that is sharply at odds with their enormous profits and power.   It further demonstrates the need for legal reforms that actually improve access of victims of corporate abuse to courts in jurisdictions where large corporations are based (the ‘home’ state).   The reality is that people continue to suffer abuses at the hands of companies operating across borders—particularly in the developing world—but rarely receive any meaningful remedy.   Picture the Nigerian woman who wakes up one morning to find that the riverbank where she used to collect shellfish has been covered in sticky black oil. Oil that is never properly cleaned up, and continues to leech into the water and soil for years, sometimes decades, destroying her livelihood and source of food, and putting her health at risk.   This is a familiar experience in the Niger Delta, where hundreds of oil spills take place every year. Decades of massive environmental destruction and its profound impacts on the rights of people living there have been well documented. Shell is the largest operator on land, and has been in the region since it first discovered oil there in 1956.   In 2011, the United Nations Environment Programme found that Shell’s procedure for cleaning up oil spills “does not achieve environmental standards according with Nigerian legislation, or indeed with [Shell Nigeria’s] own standards”. The flawed clean-up procedure was endorsed by, and based on guidance from, Shell’s headquarters.   The UK court ruled that Shell’s parent company cannot be held responsible for its 100%-owned Nigerian subsidiary’s role in oil pollution and human rights abuses. The disappointing decision is based on a strict interpretation of corporate law whereby a parent company is considered to be legally separate from its subsidiary. But this is an artificial distinction when it comes to responsibility for human rights abuses, including across borders.   Shell argues that the case concerned Nigerian plaintiffs and a Nigerian company. But our experience working on the issue has shown that Shell’s parent company is deeply involved in Nigeria, and all our interactions have been led by Shell staff in London and The Hague.   Shell’s efforts to distance itself from its Nigerian subsidiary follows an established strategy by corporate actors defending allegations of abuse brought in their home state courts. The result is that all too frequently, such cases are thrown out on the basis of preliminary procedural issues before the merits of the case are ever even heard.   US courts dismissed claims against Union Carbide Corporation (UCC) over the 1984 Bhopal industrial disaster, in which more than 22,000 people died after UCC argued that its Indian subsidiary was responsible. This is despite internal documents showing UCC itself was responsible for the design, and technical and operational control of the Bhopal factory, and had been aware of safety problems.   Victims often pursue cases in the company’s home state because legal action is either very difficult or simply not possible in their own state. It is long overdue for policymakers to challenge the ways in which the current framework of corporate law can be used to undermine human rights and victims’ right to access a legal remedy in home states.   There is now a significant body of work by academics, the UN and others to identify ways to make parent companies legally responsible for human rights abuses by their foreign subsidiaries.   Amnesty International has put forward proposals for specific legal reforms—for example, reversing the burden of proof in certain situations of wide-spread harm or systemic human rights abuse, like the Niger Delta—so that the parent company must prove it is not legally responsible.   Unfortunately, there seems little appetite from governments in really closing these “governance gaps” created by globalisation that Professor John Ruggie identified as the “root cause of the business and human rights predicament”. Government ‘National Action Plans’ on business and human rights have been timid in ambition, failing to address these systemic issues, focusing instead on out-sourcing the problem to corporate-level grievance mechanisms.   Governments are also unwilling to confront the elephant in the room: the hugely unequal balance of power between global corporations and the people, often poor, whose lives are affected by their activities. Individuals and communities on the receiving end of corporate abuses face an uphill struggle to get their case before a home state court, with only a handful of lawyers around the world able and willing to bring such cases, only to then face procedural difficulties and delays. They are up against powerful companies that for all their lip service to human rights fight tooth and nail to avoid liability for abuses, and have deep pockets to do so.   But there have been some positive signals. On the same day as the UK court ruling, a Canadian court ruled that a lawsuit against Tahoe Resources for the violent repression of a peaceful protest in Guatemala in 2013 may advance in Canada. In 2015, a court in the Netherlands took the opposite approach to the UK court, deciding that a case by another oil-affected Nigerian community could proceed against Shell’s parent company. These courts are willing to consider these cases based on their merit, not a mere technicality.   In the UK, the two Niger Delta communities have already indicated that they will appeal the recent court decision. We hope and expect that Court of Appeal will overturn the ruling to show that the UK justice system is willing to hold UK companies to account for human rights abuse when this is justified based on the substantive facts of that case.   Finally, to take a step back from legal technicalities, the bottom line is this: How can the headquarters of a multinational company knowingly profit from ongoing abuses in their global operations, while at the same time denying it has any responsibility? The question we should be asking is, if the parent company did not have oversight of the actions of its subsidiary, why not? http://bit.ly/2lfUb3B   * Joe Westby is the lead Business and Human Rights Campaigner with Amnesty International. Access the link below for more news from the Business & Human Rights Resource Centre. Visit the related web page
	Locked up for simply being poor by American Civil Liberties Union, agencies USA   Last week, state court leaders from across the nation took critically important action against debtors’ prisons to ensure that people are not locked up simply because they are poor.   Following reports of the devastating effects of debtors’ prisons across the country — including in Ferguson, Georgia, Washington, Michigan, Mississippi, and Colorado — the top national organizations of state court leaders formed the National Task Force on Fines, Fees, and Bail Practices in 2016.   This task force has now issued a bench card on the Lawful Collection of Legal Financial Obligations — a step-by-step guide for state and local judges to use to protect the rights of poor people who cannot afford to pay court fines and fees.   The principle of fairness enshrined in the Constitution and the way courts treat the poor are too often separate things in America. The Supreme Court ruled more than 30 years ago that people should never be locked up behind bars solely because they are unable to pay court fines and fees they cannot afford. But we have seen time and again that despite this ruling debtors’ prisons are a reality, with devastating impact on low-income people and their communities.   In 2014, Kevin Thompson, an unemployed teenager, was jailed for five nights because he could not pay $838 in traffic fines and fees in the allotted 30-day period. Kevin explained:   I spent five days in the DeKalb County Jail where it was cold and dirty, and I didn''t get enough food. I felt ashamed, scared, and sad during those five days. It hurt to be separated from my family. And even after I was released, I felt scared that police might arrest me and jail me again for no good reason. After all DeKalb County and JCS essentially jailed me for being poor.   In 2016, Qumotria Kennedy, a single mother of three living in poverty, was arrested and jailed when she could not pay $1001 in cash for unpaid traffic fines and fees. Kennedy lost her part-time job cleaning a motel and was separated from her teenage daughter. Neither Thompson nor Kennedy should have been punished because of their poverty.   Had the judges who handled Thompson and Kennedy’s traffic cases been trained on the task force’s bench card, they would have known that debtors’ prisons are unconstitutional. The bench card would have guided them to hold an ability-to-pay hearing and to consider readily available alternatives before punishing a person with jail for nonpayment of a fine or a fee.   It also would have helped them evaluate critical factors like income relative to the federal poverty guidelines and receipt of public assistance when determining a person’s ability to pay.   Maureen O’Conner, the task force co-chair and chief justice of the Ohio Supreme Court, explained the purpose of the bench card succinctly: “In too many instances, judges are ignoring fundamental rights guaranteed by the Constitution, while local politicians treat the court system as an ATM for their spending priorities.”   The task force’s action is the latest in a growing wave of reform by federal, state, and local leaders across the country to address the illegalities and ills of debtors’ prisons.   In 2016, the U.S. Department of Justice issued a strong letter calling on state chief justices and court administrators to ensure that court rules and procedures on fine and fee collection afford due process and equal protection of the law and align with sound public policy. State high courts in Ohio and Washington had already done that by adopting bench cards to train and guide judges on fine and fee collection. The Michigan Supreme Court followed suit by amending its state court rules to enact guidelines for judges.   And cities like Biloxi, Mississippi, adopted sweeping reforms as a result of litigation by the ACLU and others, including a bench card and the creation of a full-time public defender’s office to represent indigent people.   The tide is turning. State and local court leaders should act now. If they don’t comply with the law and the Constitution, they’ll be sued.   Judges and court staff should be trained on the task force’s bench card immediately to ensure that fair and equal treatment in our justice system does not wait another day.   July 2016   City that ran debtors prison will have to pay millions to the poor people it jailed, writes Bryce Covert.   Jennings, Missouri, which borders the city of Ferguson, where Michael Brown was shot by police, has agreed to pay $4.75 million to nearly 2,000 people who were put in jail because they couldn’t afford to pay the court fines and fees that they owed.   The death of Michael Brown shed a light on a region-wide moneymaking scheme to issue thousands of warrants for minor violations and traffic tickets, routinely throwing people in jail for not paying.   In what one of the lawyers who brought a lawsuit over the practice is calling “the first of its kind and truly historic,” the deal will end the city’s ability to jail people who can’t pay court debts as well as money bail, or allowing people to leave jail only on the condition they come up with a certain amount of money.   “The really unprecedented component of this is that thousands of people who were thrown in jail because they were poor are going to receive compensation,” explained Alec Karakatsanis, a lawyer with Equal Justice Under Law, one of the groups who brought the original lawsuit. “No amount of money can really make up for it, but it’s really important.”   Meanwhile, he added, “The settlement agreement ensures that people won’t be jailed in any way because of their poverty going forward.”   The people who will be compensated for jail time collectively spent about 8,300 days in jail over the course of five years for an inability to afford court fines and fees.   The original lawsuit brought by the groups Equal Justice Under Law and ArchCity Defenders along with the St. Louis University Law School against the city of Jennings alleged that it jailed poor people who couldn’t afford what they owed for traffic tickets and other minor offenses without looking into whether they had the ability to pay, considering other options besides jail, or offering them counsel as required by law. Instead, they were put in jail indefinitely, the lawsuit claimed, until their friends and families could find the money they owed or they were arbitrarily let out for free.   Once in jail, the conditions they endured were “grotesque,” as the lawsuit described. Plaintiffs reported the cells were covered with feces, blood, mold, mucus, and trash and the single toilet was not kept clean by the city. The lawsuit claimed the detainees were kept in the same clothes for days and weeks without access to laundry and were also denied toothbrushes, toothpaste, and soap. Women were allegedly not given adequate menstrual hygiene products and the lack of trash removal sometimes forced them to leave used napkins on the cell floor. Inmates were denied medical care and prescription medication, and were also provided food lacking in adequate nutrition.   The attorneys also alleged that inmates who were jailed for their inability to pay debts had committed suicide in the Jennings jail and others had attempted it over the past two years.   And much like Ferguson, where government reports found that each resident had multiple warrants for minor violations, Jennings issued an average of more than 2.1 arrest warrants per household in 2014, most of which were for unpaid tickets, according to the lawsuit.   The city allegedly earned “millions of dollars” over the last several years through issuing court fines and fees and then jailing those who couldn’t pay. A report found that St. Louis County, home to Jennings and Ferguson, has the country’s second-highest rate of traffic cases per person, and the revenue from tickets and warrants generates an enormous amount of revenue for cities.   Karakatsanis said the settlement deal with Jennings “appears to be the most significant ever debtors’ prison settlement.” It received preliminary court approval on Wednesday.   But debtors prisons are an unfortunately common phenomenon in many jurisdictions. The lawsuit Karakatsanis''s group brought against Ferguson at the same time it brought the lawsuit against Jennings is still ongoing, given that the practices it alleges are still contested and the issue of compensation for the plaintiffs hasn''t been resolved. "Unlike Jennings, Ferguson has fought us every step of the way," Karakatsanis said, but he''s hopeful the settlement with Jennings will have an impact on that case.   The lawsuit against the city alleged very similar practices of jailing poor people for an inability to pay debts without inquiry into their ability to pay or the offer of a lawyer. It similarly claimed that inmates were subjected to unsanitary and harmful conditions. A trial has been set for next July.   A number of Supreme Court cases have found that jailing people because they can''t pay debts without assessing whether they can afford to pay violates the Constitution. Yet the practice has still seen a revival, particularly in municipalities that are strapped for cash. They levy fines and fees against defendants and then threaten the defendants with jail until they pay. Others turn the defendants over to private probation companies, which have full discretion to add fines and fees to what they already owed and still threaten clients with jail time to get them to pay.   But there have been some victories against these debtors prison practices. A number of lawsuits have resulted in the abolishment of these schemes, potentially with compensation for those who were jailed. After a Department of Justice report on police practices in Ferguson, Missouri Gov. Jay Nixon (D) signed reforms into law that cap the revenue courts can reap from defendants. The Department of Justice itself has taken a stance on the practice, sending a letter in March to chief justices and court administrators across the country that warned them against operating debtors prisons and other practices that prey on the poor to gain revenue for the courts.   Karakatsanis is optimistic that the settlement with Jennings will only further his fight against debtors prisons. "For many, many years, our society and our legal system were really indifferent to how poor people were being treated in the municipal courts and lower-level courts," he said. This deal "sends a message to other jurisdictions that this trend we''ve seen over the last several years of throwing poor people in cages just because they can''''t make monetary payments is not something the federal courts are going to tolerate." http://bit.ly/2Mg9HdZ   http://www.aclu.org/feature/ending-modern-day-debtors-prisons http://equaljusticeunderlaw.org/wp/current-cases/ending-debtors-prisons/ http://www.schr.org/our-work/criminilization-of-poverty http://equaljusticeunderlaw.org/wp/current-cases/ending-the-american-money-bail-system/ http://www.pretrial.org Visit the related web page
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