Pitfalls and Pipelines - Philippine Indigenous Peoples Links

260 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries
Practically, however, there remain many serious obstacles
to such a course of action. These include:
• Finding the necessary legal advice and support;
• Having to prove that the parent company is responsible
and that the courts in the home country have
jurisdiction;
• Producing evidence and witnesses; and
• Finding the necessary legal arguments.
It also requires patience, given that most of the cases
quoted below have been ongoing for 10 years or more. The
assertion that justice delayed is justice denied is particularly
true in the extractive industries sector, as litigants may die of
mine-related disease or companies may cease to exist before
claims are considered. Projects can advance causing irreparable
social and environmental damage despite ongoing legal
action.
Since the Second World War and the Nuremberg war
crimes trials, international law has held that human rights
abuses can be prosecuted around the globe, but practically
litigants tend to use civil, rather than criminal law, to bring
cases, for instance under the Alien Tort Claims Act (ACTA) of
1789, which gives United States courts the jurisdiction to rule
on human rights abuses perpetrated against foreign citizens
outside the US. This complete extraterritoriality is its big advantage,
as it opens up all sorts of possibilities.
In addition to the ACTA, the Torture Victim Protection
Act of 1991 is another tool which allows US courts to hear
cases involving violations of international law committed
against private persons, regardless of nationality, focussing on
cases of torture or extrajudicial executions. 26
Previous ACTA cases include Beanal v Freeport-McMoran,
which focused on environmental impacts, human rights abuses
and cultural genocide at Freeport McMoran’s Grasberg mine
in West Papau/Indonesia, and Doe v Unocal where Burmese villagers
sued the oil company Unocal for alleged human rights
violations, including forced labor, in the construction of the
Yadana gas pipeline project. 27 Well-known current cases include
Alexis Holyweek Sarei v Rio Tinto PLC over alleged human