By Kinda Mohamadieh
GENEVA, Apr 6 2015 (IPS)

The world’s attention turned to the practices of vulture funds after the U.S. Supreme Court affirmed a lower court opinion in the NML Capital vs Argentina case, which forbids the country from making payments on its restructured debt.

Argentina had defaulted in 2001 and went through two rounds of negotiations to restructure its debt, both in 2005 and 2010. In June 2014, the court ordered Argentina to pay the ‘vulture funds’ that held out and did not accept the terms of the debt swaps.

Kinda Mohamadieh

The vulture funds had held out with the aim of achieving what amounts to a 1,600 percent return on their original investment. The funds concerned had purchased the Argentinian bonds in 2008 at 48 million dollars and the court ruling ordered Argentina to pay them 832 million dollars.

Nobel laureate Joseph Stiglitz noted that this was “the first time in history that a country was willing and able to pay its creditors, but was blocked by a judge from doing so”.

While this case brought the term ‘vulture funds’ into the public sphere, the predatory practices of these entities did not start with Argentina.

According to a former U.N. independent expert on the effects of foreign debt and other related financial obligations of states on the full enjoyment of all human rights, the term ‘vulture funds’ describes “private commercial entities that acquire, either by purchase, assignments or some other form of transaction, defaulted or distressed debts, and sometimes actual court judgments, with the aim of achieving higher returns.”

Basically, vulture funds are hedge funds whose modus operandi focuses on three main steps including: (1) purchasing distressed debt on the secondary market at deep discounts far less than its face value; (2) refusing to participate in restructuring agreements with the indebted state; and (3) pursuing full value of the debt often at face value plus interest, arrears and penalties, including through litigation, seizure of assets or penalties.“The African Development Bank has reported that at least twenty heavily indebted poor countries have been threatened with or have been subjected to legal actions by commercial creditors and vulture funds since 1999”

Many developing countries have been exposed to the predatory practices of vulture funds, especially African and Latin American countries.

The African Development Bank has reported that at least twenty heavily indebted poor countries have been threatened with or have been subjected to legal actions by commercial creditors and vulture funds since 1999. These countries include Sierra Leone, Cote d’Ivoire, Burkina Faso, as well as Angola, Cameroon, Congo, Democratic Republic of the Congo, Ethiopia, Liberia, Madagascar, Mozambique, Niger, Sao Tome and Principe, Tanzania, and Uganda.

Peru was targeted by NML Capital in the year 2000. According to media reports, the fund spent almost four years in the courts to win a ruling that forced Peru to settle for almost 56 million dollars on distressed debt, which the fund had initially bought for 11.8 million dollars.

The African Development Bank has documented that up until the year 2007, 25 judgments in favour of vulture funds had yielded nearly one billion dollars. Out of this amount, 72 percent of the judgments have been against African countries. The reported number of outstanding cases against debtor countries has doubled since 2004.

According to the World Bank and the International Monetary Fund (IMF), 54 court cases were instituted against 12 heavily indebted poor countries between 1998 and 2008. The IMF estimates that in some cases claims by vulture funds constitute as much as 12 to 13 percent of a country’s gross domestic product.  The World Bank estimates that nearly one-third of countries that are eligible for debt relief and other poverty alleviation programmes are the targets of nearly 26 vulture funds.

Concerned about the extent of the threat posed by such predatory practices and their systemic implications, several international authorities and multilateral institutions have voiced their concern about the matter.

The African Development Bank has warned that by precluding debt relief and costing millions in legal expenses, these vulture funds undermine the development of the most vulnerable African countries.

In June 2014, the heads of state and government of the Group of 77 and China, in their declaration issued on the occasion of the ‘For a New World Order for Living Well’ summit held in Santa Cruz de la Sierra, Bolivia, reiterated the importance of “not allowing vulture funds to paralyse the debt restructuring efforts of developing countries” and stressed that “these funds should not supersede the state’s right to protect its people under international law.”

The IMF had cautioned that upholding the decision against Argentina would harm future sovereign debt restructuring attempts. In 2013, the IMF stated that “if upheld, [the Court of Appeals decision] would likely give hold-out creditors greater leverage and make the debt restructuring process more complicated”.

In 2007, G8 finance ministers had expressed concern about actions of some litigating creditors against heavily indebted poor countries, and agreed to work together to identify measures to tackle this problem based on the work of the Paris Club.

In September 2014, a resolution on the activities of vulture funds and the effects of foreign debt and other related international financial obligations of states on the full enjoyment of all human rights, particularly economic, social and cultural rights, was presented by Argentina and adopted at the 27^th session of the U.N. Human Rights Council which took place in Geneva.

It is also worth noting that the 26^th session of the Human Rights Council in June 2014 had adopted a resolution titled ‘Elaboration of an international legally binding instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights’.

This resolution sets in place a process of negotiations towards an international legally binding instrument on transnational corporations and their liability in the area of human rights. (END/IPS COLUMNIST SERVICE)

Edited by Phil Harris   

The views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to, IPS – Inter Press Service. 

* This column is based on a longer version published in published in the South Centre’s South Bulletin 83 of 12 February 2015.

Excerpt:

The Supreme Court ruling is almost certain to fuel the growing debate over increasing economic inequality in the U.S. CC-BY-SA-3.0/Matt H. Wade, http://en.wikipedia.org/wiki/User:UpstateNYer, http://creativecommons.org/licenses/by-sa/3.0/

By Jim Lobe
WASHINGTON, Apr 2 2014 (IPS)

In a decision with major implications for the U.S. political system, a bare majority of the Supreme Wednesday ruled that the government cannot limit total spending by individuals on federal elections.

The highly anticipated judgement, rendered by the Court’s five right-wing justices, declared unconstitutional the legal cap on aggregate contributions individual donors can make to political candidates and party committees during the two-year election campaign cycle.“If the court in Citizens United opened a door, today’s decision may well open a floodgate.” -- Justice Stephen Breyer, writing for the minority.

That limit, which was 123,200 dollars for the current cycle, was enacted by Congress and signed into law by former President George W. Bush in 2002 as part of a larger effort to reform campaign finance laws.

The ruling in the case, McCutcheon v. Federal Election Commission (FEC), was strongly denounced by civic groups that have argued that the rich already exert far too much influence on elected officials.

“The Supreme Court majority overrode the Legislative and Executive branches to empower a miniscule number of millionaires and billionaires to use their wealth to exercise extraordinary distortive influence over federal officeholders, government decisions and elections,” said Fred Wertheimer, the president of Democracy 21 and a leading voice for taking money out of politics since the 1970s.

“The Supreme Court majority has refused to learn the lessons of history from our past corruption scandals and from decades of actions taken to protect citizens against government corruption,” he noted.

The ruling, which comes just as the 2014 Congressional campaigns are getting underway, is almost certain to fuel the growing debate over increasing economic inequality – ignited two-and-a-half years ago by the Occupy Movement – and its effects on the political system.

In just the past week, for example, op-eds decrying influence of money on government appeared in several of the nation’s most influential newspapers.

In the Washington Post, for example, Stein Ringen, an emeritus professor at Oxford University, compared the current U.S. system to that of ancient Athens where, he noted, “democracy disintegrated when the rich grew super-rich, refused to play by the rules and undermined the established system of government.”

Similar concerns surfaced when four potential Republican 2016 presidential candidates, including New Jersey Governor Chris Christie and former Florida Governor Jeb Bush (George W.’s brother), trooped to Las Vegas last weekend for a convention of the Republican Jewish Coalition (RJC), a right-wing, strongly pro-Israel group chaired by casino mogul Sheldon Adelson.

Adelson contributed nearly 100 million dollars of his 39-billion-dollar fortune to so-called super-PACS (political action committees) during the last political cycle in an ultimately vain effort to defeat President Barack Obama re-election bid in 2012.

Noting that, along with Adelson, two of the world’s other top-10 billionaires, David and Charles Koch, are already “pouring tens of millions [of dollars] into the 2014 midterm elections in an effort to swing the Senate to Republican control,” Post columnist Dana Milbank wrote Wednesday that “These and other wealthy people …are buying the U.S. political system in much the same way Russian oligarchs have acquired theirs.”

The McCutcheon decision, which drew a strong dissent from four of the justices on the nine-member court, complements the equally controversial “Citizens United” decision which the same majority handed down in 2010.

That decision found that limits to political contributions by corporations and unions violated the free speech rights guaranteed by the Constitution’s First Amendment. So long as those contributions were made to an entity that was not directly co-ordinating its advocacy work with a specific candidate’s political campaign or party, they were permissible, according to the majority.

As a substantial result of that decision, the 2012 election was the most expensive in U.S. history by far – most estimates place the amount at well over six billion dollars. In the 1960 election, by contrast, the comparable total was just over 100 million dollars adjusted for inflation.

While Citizens United applied to corporations and unions and permitted the creation of super-PACs to which anyone, such as Adelson and the Koch brothers, could contribute, it did not address the issue of direct donations by individuals to specific candidates or party organisations.

The McCutcheon case, which was based on a wealthy businessman who wanted to exceed the FEC’s 2012 aggregate limit by donating to dozens of Congressional campaigns, essentially fills that gap.

While the majority upheld FEC limits on individual contributions to specific candidates (2,600 dollars) and party organisations (5,000 dollars), it declared that the FEC’s aggregate limit (currently123,200 dollars) on any one individual’s contributions to political campaigns and parties during an election cycle violated the First Amendment.

“There is no right more basic than the right to participate in electing our political leaders,” wrote Chief Justice John Roberts in the majority opinion that drew heavily on the four-year-old Citizens United decision to establish precedent for its ruling.

“An aggregate limit on how many candidates and committees an individual may support through contributions is not a modest restraint at all,” Roberts wrote. “The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”

The majority opinion provoked a strong retort by the four more-liberal justices. “If the court in Citizens United opened a door, today’s decision may well open a floodgate,” wrote Justice Stephen Breyer for the minority.

“The result… is a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform,” he argued.

His arguments were echoed by democracy advocates. “The First Amendment was intended to facilitate the exchange of ideas and information among all of us and thereby encourage our informed participation in our government,” said J. Gerald Hebert, director of the Legal Center here.

“This decision turns the First Amendment on its head by enabling those with the biggest chequebooks to gain even more influence and access to our elected officials,” he added.

The head of Public Citizen, another Washington-based civic group, called the ruling a victory for “plutocrat rights.” “There are literally only a few hundred people who can and will take advantage of this horrendous ruling. But those are exactly the people our elected officials will now be answering to,” said Robert Weissman.

“That is not democracy. It is plutocracy,” he said.

With the notable exception of Sen. John McCain, the 2008 Republican presidential candidate who had co-sponsored the 2002 campaign finance reform law, Republicans expressed satisfaction with the ruling.

“What I think this means is that freedom of speech is being upheld,” House Speaker John Boehner told reporters. “You all have the freedom to write what you want to write. Donors ought to have the freedom to give what they want to give.”

For his part, McCain denounced the ruling. “I predict as a result of recent Court decisions, there will be scandals involving corrupt public officials and unlimited, anonymous campaign contributions that will force the system to be reformed once again,” he said in a statement.

Jim Lobe’s blog on U.S. foreign policy can be read at Lobelog.com.

Occupy Wall Street joined the NAACP as thousands marched in midtown Manhattan on Dec. 10, 2011 to defend voting rights. Credit: Michael Fleshman/cc by 2.0

By Cydney Hargis
WASHINGTON, Jul 4 2013 (IPS)

Advocacy groups here are reacting with frustration as several southern U.S. states have moved to enact stricter voting requirements in the wake of a recent Supreme Court decision that rolled back key legislation that had safeguarded minority voters for decades.

Following last week’s five-to-four Supreme Court decision overturning a key part of the Voting Rights Act, nine southern states with a history of discriminatory voting requirements are now able to change their election laws without approval from the federal government.“Basically the voter [photo] ID is a solution looking for a problem." -- Kathy Culliton-Gonzalez of the Advancement Project

Chief Justice John Roberts wrote the majority opinion, stating: “Our country has changed. While any racial discrimination in voting is too much, Congress must ensure that the legislation is passes to remedy that problem speaks to current conditions.”

Yet just 48 hours after the decision, Texas, Mississippi, Alabama and South Carolina announced plans to push through together voting restrictions that critics are warning could disenfranchise minority voters.

“Limiting the voices that can be heard is repugnant to what the country stands for,” Andrew Blotky, director of legal progress the Center for American Progress, a liberal think tank, told IPS. “We have always expanded the ability of people able to participate fully in our society, not restrict it.”

Just two hours after the Supreme Court decision came out, Texas announced that its voter identification law, requiring the presentation of a government-issued photo ID, would go into immediate effect.

Texas Governor Rick Perry also signed into law a new congressional voting map that is almost identical to the map that was ruled discriminatory last year, according to Kathy Culliton-Gonzalez, director of voter protection at the Advancement Project, an advocacy group.

“It’s not really that [southern states] weren’t treated equally; it’s about the fact that they earned this reputation to not be trusted,” Culliton-Gonzalez told IPS. “There is a reason that Texas, Mississippi, Florida and North Carolina were all covered in Section 4 [of the Voting Rights Act].”

Texas does offer free identification certificates for residents who lack other forms of photo ID, but the documents required to obtain these certificates are costly. According to Culliton-Gonzalez, some residents can be forced to drive up to 400 kilometres to apply for the free certificates, which is impractical for many voters, particularly those who are poor.

In North Carolina, meanwhile, another state impacted by the Supreme Court decision, lawmakers are now attempting to eliminate early voting, same-day registration and Sunday voting hours, and are likewise planning to implement new photo identification requirements.

According to Think Progress, an advocacy group associated with the Center for American Progress, about 613,000 North Carolinians currently lack the required photo ID, and nearly one third of these are African American.

Florida, too, is looking to cut the option to vote early, which has been seen as a key tool by which to allow more citizens to vote. Analysts suggest that eliminating early voting will have particularly serious consequences for African-American voters, half of whom cast their ballots during the early voting period in 2008, and made up 22 percent of the early vote in 2012.

“It’s terrible,” Blotky told IPS. “Its not coincidence that these states have already tried to take advantage of the opportunity to enact laws that will restrict the votes of some people who really rely on the ability to have access to polls before the election because they have work or families to take care of.”

Looking for a problem

In Alabama, residents have already been required to show identification at the polls in the form of utility bills, Society Security cards, or a copy of birth certificates. Now, conservatives in the state legislature reportedly hope to have a new photo identification requirement in place by the June 2014 “primary” elections, during which voters will choose candidates for subsequent national races.

In next-door Mississippi, 62 percent of voters have said they approve of requiring photo ID at the polls, and are in favour of a new requirement that is now also aimed to be in place by June of next year.

“Mississippi citizens have earned the right to determine our voting processes,” Secretary of State in Mississippi Delbert Hosemann recently told the press, adding that ne one should have any barriers when casting their ballot. “Our relationship and trust in each other have matured. This chapter is closed.”

Supporters of a requirement for government-issued photo ID at polls say the move will combat a purported voter fraud problem. Opponents, however, claim this issue has been significantly over-exaggerated.

“In case after case last year, we found those allegations of voter fraud were just allegations – that’s all there was to it,” said Culliton-Gonzalez. “Basically the voter [photo] ID is a solution looking for a problem – it doesn’t solve anything at all.”

Photo IDs are intended to cut down solely on in-person fraud. Yet according to a study published in August 2012, there have been just 10 documented cases of in-person voter fraud throughout the United States since 2000. Three of those cases were in a single state, Texas, and there was one conviction.

The NAACP Legal Defense Fund, a legal assistance organisation that fights racial injustice, has stepped up its surveillance of the changes that are being implemented to voting requirements in the southern states that had been covered in Section 4 of the Voting Rights Act. The organisation says it intends to use these findings to show that the previous structure of the legislation was effective.

Importantly, the Supreme Court decision simply stated that the law was functioning off of an outdated formula for figuring out which states required federal oversight. The justices have struck down Section 4 only insofar as they have mandated that the U.S. Congress revisit the issue and come up with a new formula.

In that process, groups such as the NAACP see an opportunity to ensure that this legal cover is re-strengthened and continues as long as it’s required.

“There has been progress nationally and at the state levels, but that does not mean we’ve reached a place where those states are free from racial discrimination,” Leah Aden, assistant council with the NAACP Legal Defense Fund, told IPS. “The goal is to not only get people to register and turn out, but to make sure their votes are meaningfully counted.”

The Supreme Court found naturally occurring segments of DNA "not patent eligible" on Thursday. Credit: Phil Roeder/CC by 2.0

By Carey L. Biron
WASHINGTON, Jun 13 2013 (IPS)

The nine judges of the U.S. Supreme Court ruled unanimously Thursday that naturally occurring DNA, including component parts of that genetic material, cannot be patented.

The decision overturns three decades of practise to the contrary by the U.S. Patent and Trademark Office.

Health and civil liberties groups are celebrating the unusual unanimous ruling, as are consumer protection advocates.

Although the case dealt specifically with questions regarding the “isolating” of genes within the human genome, the judges did not limit their decision to human genetics, meaning the case will have an effect throughout the biotechnology industry.

“A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated,” Justice Clarence Thomas wrote in the court’s final opinion.

He noted that U.S. patent legislation “permits patents to be issued to ‘[w]hoever invents or discovers any new and useful…composition of matter,’ but ‘laws of nature, natural phenomena, and abstract ideas’ ‘are basic tools of scientific and technological work’ that lie beyond the domain of patent protection”.

The court did, however, leave open the possibility of patenting synthetic or “complementary” DNA, artificial copies of DNA that are either separated or constructed in a lab and allowed to evolve on their own.

The biotech industry has long argued that stringent patent protection is needed for companies to feel comfortable spending the significant capital required to fund related research and development.

Others have suggested that allowing such patenting actually quashes innovation by limiting competition, while also pointing to the significant federal money that is often available for such research."A product of nature cannot be patented."
-- Sandra Park

Still, the ruling will likely affect and potentially void thousands of patents on “isolated” genetic material taken out over the past decade or more, though experts say the legal process will now be required to move through each patent on a case-by-case basis. Isolated DNA is genetic material excised from chromosomes but not otherwise altered.

According to current estimates, about 40 percent of the human genome is currently covered in some way by patents.

Product of nature

“The court’s decision today represents a straightforward application of the ‘product of nature’ doctrine, which holds that a product of nature cannot be patented,” Sandra Park, a senior staff attorney with the American Civil Liberties Union (ACLU), a watchdog group, told reporters after the ruling.

“Maybe a product required great ingenuity to discover, but a product of nature needs to remain as part of the storehouse of knowledge.…This is a simple question but with profound consequences, and from our perspective this ruling is a victory.”

The ACLU has been involved in this case since 2009, when it helped bring a lawsuit on behalf of plaintiffs suffering from breast cancer who found themselves at the mercy of a U.S. company that had patented two genes linked to breast and ovarian cancer. Researchers working for that company, Myriad Genetics, isolated those genes and then developed tests for mutations based on the research.

“These patents here tied up all uses of those particular genes, so if you found a better way to do this testing, you couldn’t do it,” Jaydee Hanson, a policy analyst at the Centre for Food Safety, a Washington advocacy group, told IPS.

“In that way, this is a revolutionary change, and makes clear that the U.S. Patent Office has not understood what the Constitution says as relating to the patenting of naturally occurring things. This is very important, and we will be working hard to disallow Congress from trying to pass any new law suggesting that you can indeed patent DNA.”

In the initial lawsuits, plaintiffs argued that Myriad was able to charge exorbitant prices for the tests and that its patents disallowed competing labs from working with those genes in any way.

“Genes are not being held hostage by private corporations any longer,” Lisbeth Ceriani, a breast cancer survivor and original plaintiff in the case, told reporters Thursday.

“If you’ve been adopted or don’t know your medical history – say, if your parents are from other countries – up until today Myriad had been able to design the criteria for who should take their test, as opposed to doctor or patients. So I’m incredibly relieved, as something that’s been going wrong for more than a decade has finally been corrected.”

Moral obviousness

Medical experts are suggesting that the court’s decision will now have an immediate impact on public health, given that Myriad’s methods – and similar research based on isolated DNA – will be able to be put into broad clinical practice and subjected to further study.

Yet the implications of the ruling will almost certainly be felt beyond the confines of human health.

“Part of the significance of this ruling is that the judges did not specify that the decision applies only to human DNA, so this will now cover the whole range of DNA,” the Centre for Food Safety’s Hanson says.

“Many of the patents out there today are of other mammals, animals, plants and microorganisms. In fact, we’ve recently seen some decline in the number of human patents being issued, but large numbers of other patents are still being issued.”

He also notes that the decision has brought the United States somewhat more in line with legal precedent on this issue elsewhere, particularly in Europe.

“European patent law has set morality as a standard, so some countries have made restrictions on what is patentable gene sequence because it might be immoral to exclude people from being able to engage in certain testing or research,” he says. “In effect, the court has come down on the side of both the U.S. Constitution and moral obviousness.”

Still, those on the losing side of Thursday’s decision are suggesting that they are relieved the ruling did not go farther.

“I’m not fully happy with opinion, but it could have been much worse,” Greg Dolin, a co-director at the University of Baltimore School of Law’s Center for Medicine and Law who formally supported Myriad Genetics in the case, said in a press conference hosted by the Federalist Society, an association of right-wing attorneys.

“Luckily, the court did not undercut the biotechnology industry,” Dolin said. “It took a cautious step, but ultimately didn’t do too much damage – though that remains to be seen, in how the decision is applied to future cases.”

The U.S. Supreme Court has dismissed a lawsuit against the Royal Dutch Shell Petroleum Company brought by alleged human rights victims.

The ruling, which was handed down Wednesday, is seen as a serious setback for the Ogoni community in the Niger Delta, who alleged gross human rights abuses during the mid-1990s by the military government in power at the time."What we have here are allegations of horrific acts of violence, including torture, facilitated by large multinational corporations in Nigeria, that essentially will go unanswered for." -- HRF's Raha Wala

In addition, the decision essentially cuts off the U.S. courts system from those attempting to redress wrongs allegedly committed by multinational companies, particularly in developing countries.

In the widely watched Kiobel vs. Royal Dutch Petroleum case, the victims had accused the oil company of being complicit in the crimes against them, including torture, extrajudicial killings, rape and crimes against humanity.

Yet the justices, led by Chief Justice John Roberts, found that Shell’s connection to the United States was too tenuous, despite the fact that it does business in the country, and hence could not be sued under U.S. law. Critics say this is precisely what the U.S. law in question, known as the Alien Tort Statute (ATS), was created to do.

“The ruling today is a real tragedy,” Raha Wala, senior council at Human Rights First, a Washington-based advocacy group, told IPS immediately after the decision.

“It means that the doors to justice will be shut for a large category of foreign individuals who really have nowhere else to turn to receive redress for international human rights issues including torture and extrajudicial killings. I think the Supreme Court really missed the mark today with its ruling.”

In the case, the plaintiffs alleged that the Ogoni had protested against widespread environmental destruction and land degradation resulting from oil exploration in the Ogoniland region of the Niger Delta. In response, they said, throughout 1993 and 1994 the Nigerian military systematically targeted Ogoni villages in terror campaigns of looting, rape murder and property destruction.

These attacks were said to have culminated in the executions of a group of people known as the Ogoni Nine, environmentalists who included the renowned playwright Ken Saro-Wiwa. The nine were hanged following a military tribunal widely condemned as illegitimate.

The Ogoni had hoped to find justice in U.S. courts by filing a civil action against Royal Dutch Shell under the Alien Tort Statute. For decades, the statute has served as a tool for holding individuals, corporations and governments accountable for international human rights violations.

Yet Tuesday’s ruling, coming after a decade-long fight, could now irreparably weaken the statute. (A full history of the case can be found here.)

“Essentially what the court said is that the ATS – which is designed to allow lawsuits for violations of both the laws of nations and international law – no longer applies extra-territorially,” Wala said.

“So what we have here are allegations of horrific acts of violence, including torture, facilitated by large multinational corporations in Nigeria, that essentially will go unanswered for because the Supreme Court construed this law very narrowly.”

Indeed, Wala says Wednesday’s decision goes against decades of use of the ATS.

“The Supreme Court has interpreted this law in a way that has been inconsistent with the last 30 years of legal precedent,” she said. “During that time, the ATS has been used repeatedly to bring human rights cases into federal courts. Today’s decision is really a disservice to victims of human rights violations.”

State courts open

The decision will almost certainly have a profound effect on the global effort to give redress to victims of corporate-linked human rights abuses. Some are also worried that it will now make it more difficult to deny safe havens to alleged torturers and war criminals.

While the case is viewed as a departure from a trend toward greater accountability for serious human rights violations, Marco Simons, the legal director for Earth Rights International, a Washington advocacy group, says that the door to the ATS has not yet been closed.

“From now on, if a foreign multinational corporation has participated in crimes against humanity in another country, you can’t sue them in the U.S. simply because they have a presence in the U.S.,” he told IPS.

“It’s not enough that the defendant is a corporation doing business in the U.S. – now there needs to be some greater connection to the United States than that.”

At the same time, he notes, Wednesday’s decision only applies to federal courts. Further, and importantly, the justices did not decide that corporations are immune from the ATS, as Shell’s lawyers had suggested.

“So, foreign corporations doing business in the U.S. can still be sued under the ATS for the crimes they have committed around the world, but only at the state court level,” he explained.

“Beyond this, we don’t really know what additional connection might be required. It could mean that only a case against a U.S. corporation can be tried, or maybe the case would have to require some company involvement within the United States, such as corporate decision-making being made here.”

He says this issue will be argued in court for some time to come.

Those against same-sex marriage in the U.S. and those supporting it traded places as the majority opinion over the past decade. Credit: Jason Tester Guerilla Futures/cc by 2.0

By Katelyn Fossett
WASHINGTON, Mar 27 2013 (IPS)

On the second day of oral arguments in two different cases involving the constitutionality of same-sex marriage, a majority of the U.S. Supreme Court on Wednesday expressed serious doubts about the 1996 Defense of Marriage Act (DOMA), which codifies the non-recognition of same-sex marriage for federal and inter-state purposes.

For advocacy groups and gay marriage supporters, DOMA effectively sanctions discrimination by denying same-sex couples the same legal and economic benefits allowed to heterosexual couples.

“Marriage equality is a fundamental right, but it also has important implications for other rights – access to housing, custody of children, for example,” Cristina Finch, managing director of the Women’s Human Rights Programme at Amnesty International, told IPS.

Although a separate case heard Tuesday deals with the issue from the angle of a statewide ban – California’s Proposition 8 – both cases have been heralded as potentially landmark decisions.

“I remember supporting [presidential candidate] John Kerry when I was 12, and hearing about the idea of a constitutional amendment to ban marriage – and knowing that was wrong even at that time,” Melissa Wasser, an activist who came to Washington from Ohio to hear the arguments, told IPS outside of the Supreme Court.

“I’m 20 and I feel like we’re finally going through the [legal] steps.”

New figures from a Pew Research Center poll on public opinion toward gay marriage attest to a strikingly rapid shift in public opinion on the issue. Researchers found that those against same-sex marriage and those supporting it traded places as the majority opinion over the past decade.

In 2003, 58 percent of U.S. citizens were against gay marriage. This year, 49 percent supported it, while 44 percent opposed it.

The numbers are even starker if opinion is broken down by age group. According to the same study, 70 percent of those age 18 to 32 support same-sex marriage, compared to just 31 percent of those older than 68 years old.

Possible impact

While the case being heard regarding DOMA, which was passed in 1996, is expected to have a more decisive impact, the California case could be dismissed, as several justices have expressed hesitation to take it on in the first place.

“I just wonder if this case was properly granted,” Justice Anthony Kennedy, who had been expected to be the deciding vote, wondered aloud during Tuesday’s hearings.

Kennedy was likely referring to the charge that the lawyers supporting and challenging California’s law, a state-wide ban on same-sex marriage, are not directly enough injured by it, as they are not from California or affected personally by the ban themselves.

If the justices indeed decide that the case should not have been accepted by the court, a dismissal would uphold the lower court ruling, and California would go back to granting marriage licenses to same-sex couples.

The DOMA case, on the other hand, is more squarely in the realm of federal law. “It seems to me there’s injury here,” Justice Kennedy said Wednesday.

DOMA found its way to the Supreme Court when a woman named Edith Windsor was forced to pay 363,000 dollars in real-estate taxes after the death of her spouse because, under federal law, their marriage was ineligible for tax-relief benefits given to heterosexual couples.

“DOMA does not bar or invalidate any state-law marriage but leaves states free to decide whether they will recognize same-sex marriages,” said a brief filed by the Republican congressional group that is defending the law.

Although the court’s decisions are not slated to become public until June, the activists and supporters gathered outside the court exuded optimism.

“I am pretty confident DOMA will be struck down,” Tom Kelly, a high school student who came from Massachusetts out of an interest in constitutional law, told IPS.

Political u-turn

One element of the DOMA problem that poses potential problems in the Supreme Court’s jurisdiction, however, is the unusual refusal of the government to defend its own law.

In 2011, the Obama administration made a statement that it had found Section 3 of DOMA, which enshrines the non-recognition of same-sex marriage for tax, insurance, and social security benefits, unconstitutional. Despite an appeal from the justice department to overturn the lower court’s ruling, the administration refused to defend it in court, and a Republican Congressional group took up defending it instead.

“This is wholly unprecedented,” Chief Justice John G. Roberts said about the odd circumstances, which some say effectively amounted to a lack of challenge between the two sides.

If the administration’s agreement with the lower court indeed suggests a lack of controversy to a degree that could grant jurisdiction to the Supreme Court, the justices could dismiss the case altogether.

This possibility – that there may not, legally and politically, be enough controversy on the issue for a Supreme Court case – could indeed be most telling about the general direction of gay marriage.

“Not only do the majority of people in the United States support marriage equality, but laws on the state level are changing quickly,” Finch from Amnesty told IPS. “The time is now for this human right to be recognised.”

The U.S. Supreme Court will hear oral arguments Wednesday in a challenge to the constitutionality of key sections of the historic Voting Rights Act (VRA) of 1965.

Numerous organisations are rallying in support of the VRA. Activists across the nation, including Dr. Charles Steele, CEO of the Southern Christian Leadership Conference (SCLC), are traveling to Washington, DC to protest outside of the court.

“Everything has changed, but nothing has changed,” Dr. Steele told IPS.We’ve got folks in our generation who think we have arrived. I tell you, you think you have arrived, but you got off at the wrong station.

“Everything has really gone backwards in terms of our successes. If we let this go, if we sit idly by, then we’re destined for failure. We’re not going to rest on our laurels because we have a black president. We’re going to take to the streets and that’s where we’re heading,” he said.

“We’ve got folks in our generation who think we have arrived. I tell you, you think you have arrived, but you got off at the wrong station – you got to get back on the bus,” he said.

Even though black people in the U.S. have ostensibly had the right to vote since 1870 under the 14th and 15th amendments to the constitution, several federal Voting Rights Acts were enacted in 1957, 1960, 1964, and 1965 to address discriminatory election practices at the state and local levels.

Section 5 of the VRA of 1965 is one of the strongest enforcement provisions of the Act. It requires that the justice department preclear any changes to “any standard, practice, or procedure with respect to voting”, including district maps, in any of the “covered jurisdictions”, which include all or part of 16 U.S. states, mainly in the U.S. south.

The case, known as Shelby County, Alabama v. Attorney General Robert Holder, argues that, on its face, the 2006 Congressional reauthorisation of sections of the Act was unconstitutional because it was based on historical data of racial discrimination in election practices that are no longer relevant.

“That’s actually not true,” Lisa Bornstein, senior counsel and senior policy analyst for the Leadership Conference on Civil and Human Rights, told IPS. “We have loads of examples, continuing to this day, there are voting discriminatory practices happening in covered jurisdictions.”

The justice department recently blocked voter ID laws in South Carolina and Texas that, if not blocked, would have been in place during the November 2012 elections.

“Also, there are redistricting efforts. In Texas there was an attempt to redistrict so that Hispanics, who are now 65 percent of the growth, to limit that voting power by the way of redistricting,” Bornstein said.

“Then there’s examples like changing the date of an election, changing the place of an election.
Some of them are done to have a discriminatory impact,” she said.

Examples of modern-day discrimination in covered jurisdictions are in the thousands.

In 2008, the City of Calera, Alabama redrew one of its City Council districts to reduce the black voting population from 69 percent to 29 percent, leading to an incumbent black councilmember, Ernest Montgomery, losing his seat.

The justice department intervened, requiring the city to redraw the lines and hold a new election, in which he was reelected. That action led to the current Supreme Court challenge by Shelby County, in which Calera is located.

In another example, in 2001, the justice department objected after the all-white town government in Kilmichael, Mississippi tried to cancel an election shortly after black citizens had become a majority. When the citizens of Kilmichael finally voted, they elected the town’s first black mayor and three black aldermen.

The Act also provides that covered jurisdictions can petition to “bail out” of Section 5. Beginning in 1982, jurisdictions could bail out if they could prove they had complied with a list of nondiscrimination requirements for 10 years.

In addition, the Act provides that the new jurisdictions can be “bailed in”.

Congress reauthorised the VRA of 1965 in 1970, 1975, 1982, and in 2006.

In 1975, Congress expanded Section 5’s reach to cover jurisdictions that had engaged in widespread discrimination against “language minority” groups.

In 2006, Congress held extensive hearings on the VRA and the continued need for Section 5 today, considering some 15,000 pages of legislative record.

The 2006 reauthorisation was approved 98 to zero in the Senate, and 390 to 33 in the House of Representatives.

The Supreme Court has upheld Section 5 of the VRA several times, including in 1966, in a landmark case, South Carolina v. Katzenbach; and again in 1973, 1980, and 1999.

More recently, in 2009, in Northwest Austin Municipal Utility District Number One v. Mukasey, the Supreme Court issued a ruling expanding the types of jurisdictions that could bail out of Section 5 coverage. The Municipal Utility District had not been previously been considered an independent enough district to be eligible to bail out.

Since that decision, 127 additional jurisdictions have bailed out. “It’s not a particularly onerous process,” Bornstein said.

“That’s part of the beauty of this law and why we believe it’s constitutional. This law allows for flexibility in case there’s overinclusiveness or underinclusiveness, to make sure the law as a whole functions properly,” she said.

In the Northwest Austin ruling, the court acknowledged the progress made in covered jurisdictions since 1965, attributing this progress to the VRA itself, noting that the progress may be “insufficient and that conditions [may] continue to warrant preclearance under the Act.”

The court added that “the Act imposes current burdens and must be justified by cur­rent needs.” This language has led some legal scholars and pundits to predict that Section 5 of the VRA might be in danger altogether, especially given the fact that the Supreme Court chose to hear the current case.

But advocates do not believe the section is in danger because they believe the current burdens are met by current needs.

“It would be a big step for the Court to determine that [the reauthorisation was unconstitutional]. Congress has the authority to make this determination. The court cannot second guess if what Congress has done was reasonable,” she said.

As previously reported by IPS, there were numerous voter suppression laws and tactics in place during the November 2012 elections, representing a new generation of Jim Crow laws.

Some of these activities occurred in jurisdictions not covered by Section 5 and did not require preclearance by the justice department. However, Section 2 of the VRA of 1965 allows the justice department to bring case-by-case litigation in non-covered jurisdictions, something Section 5 attempts to avoid in historically discriminatory jurisdictions.

In a long-awaited decision with potential electoral consequences, the U.S. Supreme Court Monday struck down three out of four provisions of a controversial Arizona law aimed against undocumented immigrants.

A five-to-three majority of the court ruled that those provisions, including one making it a crime for undocumented immigrants to seek work, went beyond existing federal immigration law. It has been a long-established principle in U.S. constitutional law that federal law “pre-empts” state law if they conflict.

But the court unanimously upheld the law’s single-most controversial provision – sometimes referred to as the “show-me-your-papers” law – that would require local police under certain conditions to check on a person’s immigration status if they have been detained or arrested in connection with the violation or enforcement of other laws.

Reacting to the decision, President Barack Obama, whose Justice Department challenged the Arizona law soon after its enactment in 2010, said he was “pleased” with the Court’s decision to strike down those provisions that conflicted with federal immigration law.

“At the same time,” he added, “I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally.

“Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americas…,” he went on, adding that the court’s ruling showed the need for Congress to enact “comprehensive immigration reform”.

A number of civil rights groups also reacted negatively to the court’s decision to let the “papers” provision stand, suggesting that they will soon be filing their own lawsuits against the measure once Arizona begins enforcing it.

“By re-instating the ‘show-me-your-papers’ for now, the court has left the door open to racial profiling and illegal detentions in Arizona,” said Anthony Romero, executive director of the American Civil Liberties Union (ACLU). “We have amassed an 8.77 million dollar war chest to fight those battles in court and to counter any and every anti-immigrant copycat measure in other states.”

“The xenophobic virus in Arizona must be contained before it spreads to other states,” he added.

But Arizona Republican Gov. Jan Brewer, who claimed that the “heart of the law” had been upheld by the court, insisted that “racial profiling will not be tolerated” by her administration.

The court’s ruling comes at a critical moment in the 2012 election campaign and could influence its outcome, particularly in so-called swing states with large Hispanic populations, including Arizona and several of its Rocky Mountain neighbours, as well as Florida, North Carolina, and Virginia.

Despite a significant reduction in Latino immigration since the 2008 financial crisis, the overall U.S. Latino population has increased by more than 40 percent over the past decade – to more than 50 million. Much of that growth has been concentrated in the Rocky Mountain states, Texas and the southeast.

Obama won about two-thirds of the Latino vote nationwide in 2008 and hopes to equal or surpass that percentage in November.

In a move that drew enthusiastic support from many Latinos, Obama announced earlier this month that his administration will stop deporting undocumented immigrants under the age of 30 who entered the U.S. as children, have no criminal records, and have either served in the U.S. armed forces or graduated from a high school or the equivalent.

Approximately 800,000 people – the vast majority Latino – are expected to benefit from the action.

With just a few exceptions, Republicans – including their presumptive presidential candidate, former Massachusetts Gov. Mitt Romney – have come out against Obama’s action, as they have against any measure that they construe as granting “amnesty” to any of the estimated 12 million undocumented immigrants living in the U.S.

For the most part, they have also rallied behind the Arizona law and similar or even more severe “copycat” laws enacted over the past two years by legislatures in Alabama, Georgia, South Carolina, and several other states. During the primary campaign, Romney endorsed the Arizona law, although Florida Senator Marco Rubio, touted as a possible vice-presidential running-mate, has denounced it.

“I believe that each state has the duty – and the right – to secure our borders and preserve the rule of law, particularly when the federal government has failed to meet its responsibilities,” Romney said Monday in a statement that charged Obama with having “fail(ed) to provide any leadership on immigration”.

Romney’s political problems in reacting to the ruling were noted by Michael Shear of The Caucus blog of the New York Times. “More specific expressions of support for the law’s controversial provisions would be likely to undermine his efforts to increase support among Latinos. But if Mr. Romney distances himself from the Arizona law, he runs the risk of alienating conservative Tea Party supporters who back aggressive enforcement.”

The three provisions of the law that were found to unconstitutionally undermine federal law included criminalising undocumented immigrants who fail to register as such under a federal law or who work or try to find work in the state, and a third that authorised police to arrest people if they have probable cause to believe they had committed crimes that would make them deportable under federal law.

The Justice Department took the position that the fourth provision – the “show me your papers” provision – also went beyond federal law, a position also taken by the appeals court which heard the case before Arizona appealed it to the Supreme Court.

But the justices disagreed, although they also noted that much would depend on how the law was implemented. “This opinion does not foreclose other pre-emption and constitutional challenges to the law as interpreted and applied after it goes into effect,” Kennedy wrote for the majority.

He also stressed that “detaining individuals solely to verify their immigration status would raise constitutional concerns.”

Indeed, a number of Latino and other civil society groups stressed that they intended both to closely scrutinise Arizona’s application of the law and file suits on other grounds against its enforcement.

“The Supreme Court …failed to decisively remove the bull’s eye on the backs of Arizona’s Latinos, leaving it to future lawsuits to address,” declared the National Council of La Raza. “Those challenges will come, because this provision legitimises racial profiling and should not be allowed to stand in Arizona or anywhere else.”

“Knowing as we know, that the intention behind the anti-immigrant Arizona law is to see the largest number of people possible be ejected from the U.S., we find the U.S. Supreme Court decision as a dangerous sanctioning of what could become a witch hunt against foreign-born populations,” noted Angela Sanbrano, president of the National Alliance of Latin American and Caribbean Communities (NALACC).

“Now more than ever, it will be crucial to closely scrutinise the action by local law enforcement agencies in Arizona.”

New York-based Human Rights Watch (HRW) also expressed dismay with the ruling and scepticism over Brewer’s assurances that the law will not result in racial profiling.

“The Supreme Court ruling opens the door to anti-immigrant abuses we’ve seen in other states with similar laws,” said Grace Meng, an HRW researcher. “The court said it was too soon to know what harm there might be from this one provision, but the harm from a similar provision in Alabama is all to clear.”