THE BLOG
10/31/2016 04:23 pm ET Updated Nov 01, 2017

Amid Escalating Repression, Dakota Access Pipeline Owners Risk Legal Liability

The deteriorating situation in Standing Rock, North Dakota is deeply alarming, exhibiting all-too-familiar patterns of human rights abuses that have long been associated with the extractive industries around the world. In the Amazon, we've seen traditional and sacred indigenous lands spoiled by oil extraction. In Ecuador and Nigeria, peaceful protesters have been attacked and even killed by public and private security forces at the behest of companies. And now, we must add to this list what is happening in North Dakota - a violent campaign of intimidation and repression.

Peaceful water protectors have been met with excessive force by police and unlicensed private security forces, including the use of rubber bullets and attack dogs. Protesters, activists, and journalists have been arrested and threatened with prosecution for reporting on these abuses, in clear violation of the rights to free assembly and speech protected by the First Amendment.

Today my organization, EarthRights International, and a number of other legal and advocacy organizations sent a letter to the owners of the Dakota Access Pipeline reminding them of their obligations under international law and that they have a responsibility to stop the attacks on the peaceful protestors at Standing Rock, North Dakota. The rapid escalation of tensions over the past 48 hours with the forcible clearing of at least one camp by militarized police forces shooting tear gas at peaceful protestors has heightened the sense of urgency in which the company must act to protect human rights.

The owners of DAPL should know that the world is watching them and they too will be accountable to the communities and individuals they harm.

#NoDAPL

Dear Messrs. Warren, Garland and Robinson,

We are writing to express our concerns about the deteriorating situation in Standing Rock, North Dakota. As joint owners of the Dakota Access Pipeline, you have a corporate duty under international law and the laws of the United States to respect human rights and to avoid complicity in further human rights abuses. It is imperative that you take action to stop the attacks on peaceful occupiers immediately.

Our organizations have spent decades advocating and litigating on behalf of Indigenous communities outside the United States. We have seen the rights of Indigenous communities violated by proponents of extractive industries around the world - traditional and sacred lands in the Amazon spoiled by oil extraction; peaceful protestors attacked and too often killed by public and private security forces in Guatemala and Nigeria; and human rights defenders wrongfully arrested in Ecuador and Peru. And we are alarmed that these all-too-familiar patterns are playing out in the United States at Standing Rock.

On September 22, eight United Nations mandate holders expressed concern at reports of intimidation, harassment, and prosecution of Indigenous peoples exercising their right to peaceful assembly. The statement followed the release of documentary evidence demonstrating that unlicensed security personnel employed or contracted by your companies attacked peaceful occupiers with dogs, resulting in multiple injuries.

In the ensuing weeks, the situation has deteriorated further. The campaign of intimidation and repression, carried out by both private security forces and local police, has included the use of pepper spray and the firing of rubber bullets against protestors, mass arrests, and the arrests and threatened prosecution of the journalists who documented the aforementioned abuses, in clear violation of the First Amendment and of fundamental principles of press freedom recognized worldwide. Notably, media reports suggest coordination by police and your companies or their agents on multiple occasions.

The rapid escalation of tensions over the past 48 hours, including the forcible clearing of at least one camp by militarized police forces deploying teargas, has created a situation of urgency in which the companies must take immediate responsibility for the human rights impacts of their actions, including the companies' complicity in the actions of others.

As a matter of international law, your companies have an affirmative responsibility to protect human rights, including the responsibility to: avoid causing or contributing to adverse human rights impacts to peaceful protestors through your companies' own activities; and to seek to prevent or mitigate adverse human rights impacts that are directly linked to your companies' operations. These responsibilities also apply to banks and other institutions that provide financing for a project that will cause such adverse human rights impacts.

We emphasize and caution that the active involvement by persons acting under color of governmental authority, including state or local law enforcement, does not absolve your companies of these duties. To the extent that human rights abuses occur, business enterprises have an affirmative duty to avoid complicity in those abuses. Your companies may be responsible for injuries or losses suffered by the protestors, including those caused by private security forces or police working in concert with you or at your behest. As a matter of international law, your companies have a responsibility to protect human rights, which includes a complimentary prohibition on causing violations of human rights.

We further note that victims of human rights abuses occurring within the United States may seek redress not only through international human rights mechanisms but also in domestic courts. In this context as well, the participation of third persons in the commission of tortious acts will not absolve your companies of responsibility or liability if your operations have aided and abetted the commission thereof.

Respectfully,

Carroll Muffett, President
Center for International Environmental Law

Katie Redford, Director
EarthRights International

Winona LaDuke, Executive Director
Honor the Earth

Jane Fleming Kleeb, President
Bold Alliance

Stephen Leonard, President
Climate Justice Programme

Steven Kretzmann, Executive Director
Oil Change International

Kelly Mitchell, Energy Campaign Director,
Greenpeace USA

CC:
Vanita Gupta
Principal Deputy Assistant Attorney General
Civil Rights Division
US Department of Justice