Photo credit: EJA

The Formosa Ha Tinh Steel case (hereinafter refers to as the FHS case) was overruled by the High Court on March 20 on the grounds that Taiwan has no jurisdiction, and the original ruling is, therefore, sustained. The plaintiffs held a press conference at the High Court on April 17 (Fri.) and filed for a reappeal against the result of the appeal. The case will be moved to the supreme court for review.

The FHS case is a tort litigation in Taiwan brought by over 7000 residents in Ha Tinh Province, Nghe An Province and other provinces in central Vietnam against Formosa Ha Tinh Steel Corporation. The Vietnamese plaintiffs and Taiwanese civic organizations assisting on the litigation believe that the FHS case is a major transnational tort case involving Taiwanese corporations and therefore, courts in Taiwan should have jurisdiction over the case. In the conference, civic organizations and representatives of plaintiffs chanted the slogan “Taiwan can help, so can Taiwan court!”, urging Taiwan to contribute more to the global community, believing that in addition to Taiwan’s proud contribution to the prevention of Covid-19, courts in Taiwan can also take on more responsibility by recognizing Taiwan’s jurisdiction over this transnational human rights violation case since it was done by local enterprises.

Father Nguyen Van Hung, representing the Vietnamese plaintiffs, held a bouquet of flowers symbolizing hope and walked from the High Court to the Supreme Court, urging the Supreme Court to review this high-profile case. He expressed that this case concerns whether the 7000 plus Vietnamese plaintiffs can get justice, and encouraged the court to make a progressive ruling by having the case remanded.

Representative of the legal team Attorney Yu-yin Zhang, President of the Environmental Jurists Association said that the High Court overruled the case on the grounds that Taiwan courts have no jurisdiction and such ruling was a disappointment to both the plaintiffs and their legal team. The legal team already filed for a reappeal according to relevant regulations and today was to supplement reasons of appeal to the court. Attorney Zhang Yu-yin pointed out that the plaintiffs and Vietnamese NGO workers originally planned to file the litigation in Vietnam but were repeatedly suppressed by the Vietnamese government with violence. It was obvious that the Vietnamese government chose to protect Taiwanese mega-corporations and forbade with violence its peoples’ right to justice. The victims had no choice but to turn to courts in Taiwan for an opportunity of a just trial. That is the key reason why Taiwanese courts should have the courage to exercise their international jurisdiction over this case. Zhang Yu-yin emphasized that this reappeal not only shows that there are apparent errors in the application of law in the ruling made by the High Court, but also hopes that the Supreme Court can review the jurisdiction issue of this case based on the universality of General Comment No. 24 of the ICESCR. The legal team hopes that Taiwan can be a model of good governance under this pandemic while courts in Taiwan can also be brave enough to claim jurisdiction over a transnational human rights violation case where Taiwanese corporations are the violators.

Father Nguyen Van Hung of the Vietnamese Migrant Workers and Immigrants Office said that he was deeply disappointed and distressed after receiving the ruling of the High Court on March 20 because the District Court and the High Court in Taiwan did not hear the crying of help of the 7875 plaintiffs. FHS caused serious pollution along the coast of Vietnam, and there were clear evidence showing that the rights of the plaintiffs were violated. However, the authoritarian regime in Vietnam prevented the victims from getting justice through the judicial system. Father Hung pointed out that although $500 million was paid by Formosa Plastics, the victims were never able to participate in the negotiation process. The compensation was a secret deal between the government and Formosa Plastics. The victims then filed the case in Vietnam but was dismissed by the court for lack of evidence. The victims attempted to file for appeal but were stopped by the police and roads to the court were completely blocked, preventing the victims from filing an appeal within the required time. Advocates were treated violently and arrested and sentenced to jail for nine, 14, and even 20 years on trumped-up charges. Justice cannot be sought in Vietnam and there are plenty of evidence that can prove such situation. Nguyen Van Hung urged the courts in Taiwan to give Vietnamese people a chance to have this case tried in Taiwan and a chance for these victims to voice themselves and their unjust treatment. Compared with the judicial system in Vietnam, Taiwan has a more independent judicial system. He believes that Taiwan is a progressive and democratic country that protects human rights, and that compared with an authoritarian regime, Taiwan will be far more capable of making a fair and just ruling.

Chen-En Song, DPhil Candidate, Oxford University indicated that Taiwan is trying all its effort to be part of the international community and promoting the New Southbound Policy in the hope that we can have a closer relationship with countries in Southeast Asia. One of the tasks on the to-do list is to request Taiwanese transnational corporations to deal with damage caused in other countries responsibly and open our judicial system for foreign victims to claim for compensation. In this era of globalization, transnational corporations often play a more critical role than states and therefore, their operation needs to be regulated. However, in developing countries, effective legal remedies are often unavailable due to the incompleteness of the judicial system or the lack of transparency in politics. And this is true with the FHS case. Formosa Ha Tinh Steel caused large-scale environmental pollution in Vietnam and many people lost their livelihood because of the pollution, and yet under the suppression of the Vietnamese government, the victims were unable to seek legal remedies in Vietnam.

Cheng-en Song pointed out that the complaint submitted by the legal team specifies the principles of discretionary jurisdiction in Taiwan and similar cases internationally. Sufficient reasons such as the principle of “actor sequitur forum rei”, substantial control of Formosa Plastics Group members over Ha Tinh Steel, its main operation being in Taiwan, and the possibility of victims realizing claims all show that although this case took place in Vietnam, courts in Taiwan have parallel jurisdiction. In addition, investigation in Vietnam and the legal team have gathered sufficient evidence; therefore, having this case tried in Taiwan should not cause much difficulty. Such judicial cooperation is also a way for the court to show to the world that Taiwan can not only do a decent job in public health and disease prevention, but also has an open and progressive judicial system that is on par with global standards. Taiwan society will not accept its own mega-corporations hiding behind legal technicality and refusing to be held liable.

CEO Yuwen Tu of the Environmental Rights Foundation also called for courts in Taiwan to be brave enough to burden such trial responsibility. Taiwan can help, and it’s not just providing masks. Goal 16 of the UN Sustainable Development Goals (SDGs) is to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”. Taiwan can be known to the world not just in public health and medicine; Taiwan can also be a helpful figure by having a good legal and trial system. When people of other countries cannot receive a fair trial and when Taiwan has the jurisdiction, being willing to play the role that helps the less advantaged and provides them an opportunity of judicial trial demonstrates that Taiwan has a comprehensive system. And that is something that can make Taiwanese people proud.

Yuwen Tu also stressed that the New Southbound Policy follows the spirit of the UN SDGs and encourages exchange and technical cooperation with other countries. Formosa Plastics constructed a steel plant in Vietnam and was a key indicator of prosperity to the local community. However, while we are bringing industrial development and prosperity to Vietnam, we should also be responsible for its sustainability and the environment, and leaving the pollution to cause harm to local residents should never be the result. The reasons submitted along with the complaint explain clearly the damage suffered by local residents and how these residents cannot file a case in the Vietnamese court and were even suppressed by the government. She hopes that courts in Taiwan can recognize that Taiwan’s judicial system is definitely able to provide access to justice for these victims internationally and that Taiwan has the courage to bear such responsibility.

Researcher Kang Yang of Covenants Watch indicated that it is an obligation for Taiwan’s judicial system to review overseas tort cases conducted by Taiwanese transnational companies. Paragraph 26 of General Comment No. 24 of the ICESCR specifies that “States parties’ obligations under the Covenant did not stop at their territorial borders” and that “States parties were required to take the steps necessary to prevent human rights violations abroad by corporations domiciled in their territory and/or jurisdiction (whether they were incorporated under their laws, or had their statutory seat, central administration or principal place of business on the national territory)”. Paragraph 33 of General Comment No. 15 states that States parties are obliged to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries; Paragraph 52 of General Comment No. 18 states that States should forbid their own companies from violating the realization of the right to work for overseas workers; and Paragraph 70 of General Comment No. 23 regulates that enterprises domiciled in the territory and/or jurisdiction of States parties are required to respect the right to just and favorable conditions of work throughout their operations extraterritorially. All of which echo one spirit reiterated on Paragraph 27 of General Comment No. 24, “the obligations of the Covenant are expressed without any restriction linked to territory or jurisdiction”.

The Maastricht Principles (on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights) also states that all States have obligations to respect, protect and fulfil human rights, including civil, cultural, economic, political and social rights, “both within their territories and extraterritorially”. Article 9 (c) also mentions that a State has jurisdiction if the State, acting separately or jointly, whether through its executive, legislative or judicial branches, is in a position to exercise decisive influence or to take measures to realize economic, social and cultural rights extraterritorially, in accordance with international law. Article 25 reiterates that States must adopt and enforce measures to protect economic, social and cultural rights both within their territories and extraterritorially through legal and other means when business enterprises, where the corporation, or its parent or controlling company, has its center of activity, is registered or domiciled, or has its main place of business or substantial business activities, in the State concerned. Courts in Taiwan is capable of protecting the rights of victims whose rights were violated by Taiwanese companies. This is not “something we can do”; this is “something we should do”.

Specialist Yi-jia Yu of Taiwan Association for Human Rights said that judicial remedy mechanisms are the last line of defense for human rights victims, and an effective judicial mechanism is at the core of ensuring remedies. Based on international human rights standards, Taiwan courts can try the FHS case. This case involves human rights violations caused by businesses stipulated in the UN Guiding Principles on Business and Human Rights and General Comment No. 24 of ICESCR. States should be able to ensure victims’ access to justice. General Comment No. 24 emphasizes that the obligations of a State include business entities that the State can control, regardless of the location of the entities. In addition, when victims cannot receive remedies in the place where the tort was committed, State parties are obliged to prevent and correct the behavior of their controllable business entities. The Comment also points out that States have the obligations to prevent judicial remedies from rejecting transnational victims, and that in terms of jurisdiction, victims should not be rejected solely under the basis of “forum non conveniens”; especially when in reality, victims may not necessarily be able to receive effective remedies from the other court with jurisdiction. In other words, according to the regulations of the Covenant, States (including all judicial and law enforcement agencies) are obliged to ensure that effective judicial remedies are provided.

Yi-jia Yu pointed out that the experience of other countries show many cases of countries of parent companies hearing cases of subsidiaries violating human rights and causing harm abroad. For instance, the District Court of The Hague once admitted the litigation brought by Nigerian farmers against Royal Dutch Shell (Four Niger Delta Farmers v. Royal Dutch Shell). There have been multiple incidents of oil spills in Nigeria from Shell since the 1950s, causing severe pollution, and the Ogoni people living in the area have suffered the harm of oil pollution throughout their lives. In that particular case, the defendant also questioned whether the Dutch court has jurisdiction over the case whereas the ruling of the Regional Court of Appeal confirmed that the case has international jurisdiction. Also, the UK court once admitted a case regarding a UK company emitting toxic substance into waters near Nchanga Mine, Zambia (Lungowe v Vedanta Resources plc), causing damage to the health of local residents and their crops. In this case, the UK Supreme Court took into consideration “whether substantial justice can be realized for victims in Zambia”. In short, there have been plenty of cases where the subsidiaries cause damage outside the home country and the court of the parent companies admits cases brought by foreign victims, and even sees the possibility of plaintiffs receiving substantial justice as an important factor.

Moderator: Echo Lin
Speakers:
Attorney Yu-yin Zhang, Representative of the legal team/President of the Environmental Jurists Association
Father Nguyen Van Hung, Vietnamese Migrant Workers and Immigrants Office
Chen-En Song, DPhil Candidate, Oxford University
Kang Yang, Researcher of Covenants Watch
Yuwen Tu, CEO of the Environmental Rights Foundation
Yi-jia Yu, Specialist of Taiwan Association for Human Rights

Initiators: Justice for Formosa Victims, Vietnamese Migrant Workers and Immigrants Office, Environmental Jurists Association, Environmental Rights Foundation, Taiwan Association for Human Rights, Covenants Watch