[WSMDiscuss] Fwd: Gujarat Fishermen’s Landmark Victory in US Supreme Court Goes Unreported in Indian Media
chikikothari at gmail.com
Tue Apr 2 17:47:37 CEST 2019
This judgement may set an important precedence for holding institutions
like the World Bank accountable for their actions that destroy
environment and livelihoods.
COMING SOON! Pluriverse: A Post-Development Dictionary (thepluriverse.org)
Apt 5 Shree Datta Krupa
908 Deccan Gymkhana
Pune 411004, India
Tel: 91-20-25654239; 91-20-25675450
-------- Forwarded Message --------
Subject: Gujarat Fishermen’s Landmark Victory in US Supreme Court Goes
Unreported in Indian Media
Date: Tue, 2 Apr 2019 18:55:38 +0530
From: Vinay Baindur <yanivbin at gmail.com>
To: South Asia MDB Watch <mdbsouthasia at yahoogroups.com>, WBI Crit
<wbindiacrit at lists.riseup.net>, Coalition for Environmental Justice in
India <coalition-for-environmental-justice-in-india at googlegroups.com>
Gujarat Fishermen’s Landmark Victory in US Supreme Court Goes
Unreported in Indian Media
Local fishermen said a power plant financed by an arm of the World Bank
led to air, land and water pollution. The group tried to claim absolute
immunity, but the US Supreme Court did not agree.
Gujarat Fishermen’s Landmark Victory in US Supreme Court Goes Unreported
in Indian Media
The US Supreme Court. Credit: Reuters/Erin Schaff/File Photo
The Wire Analysis
The Wire Analysis <https://thewire.in/author/the-wire-analysis>
<https://thewire.in/category/world/all>2 HOURS AGO
A landmark legal victory
by Indian fishermen belonging to the Kutch district of Gujarat in the
United States Supreme Court in the last week February went completely
unnoticed by the Indian media.
The US Supreme Court, in a 7:1 decision, with one judge abstaining,
ruled on February 27 that the International Finance Corporation (IFC),
an arm of the World Bank, financing the construction of a power plant at
Mundra, Gujarat, is entitled only to limited or “restrictive” immunity
that foreign governments currently enjoy. Therefore, its claim for
absolute immunity from suit, filed by local farmers and fishermen
alleging air, land and water pollution in the surrounding area of the
plant, is not valid, the court said. The plaintiffs were led by Waghers,
group of Muslim fishermen who have been fishing in the Mundra waters for
Chief Justice John Roberts delivered the opinion of the court, in which
Justices Thomas, Ginsburg, Alito, Sotomayor, Kagan and Gorsuch joined.
Justice Breyer filed a dissenting opinion. Justice Kavanaugh, the latest
appointee to the court, took no part in the consideration or decision of
The International Organisations Immunities Act of 1945 (IOIA) grants
international organisations such as the World Bank and the World Health
Organisation the “same immunity from suit …as is enjoyed by foreign
governments”. At the time the IOIA was enacted, foreign governments
enjoyed virtually absolute immunity from suit. Today, that immunity is
more limited. Foreign governments are not immune from actions based upon
certain kinds of commercial activity in which they engage.
The IFC finances private-sector development projects in poor and
developing countries around the world. About ten years ago, the IFC
financed the construction of the coal-fired Tata Mundra Power Plant in
Gujarat, by providing $450 million in loans in 2008 to Coastal Gujarat
Power Limited. Under the terms of the loan agreement, Coastal Gujarat
was required to comply with an environmental and social action plan
designed to protect areas around the plant from damage. The agreement
allowed the IFC to revoke financial support for the project if Coastal
Gujarat failed to abide by the terms of the agreement.
Internal audit said plant did not comply with action plan
According to IFC’s internal audit, Coastal Gujarat did not comply with
the environmental and social action plan in constructing and operating
the plant. The audit report criticised the IFC for inadequately
supervising the project.
In 2015, a group of farmers and fishermen who live near the plant, as
well as a local village, sued the IFC in the United States district
court for the District of Columbia. They were led by the lead plaintiff,
Budha Ismail Jam. They claimed that pollution from the plant, such as
coal dust, ash and water from the plant’s cooling system, had destroyed
or contaminated much of the surrounding air, land and water. Relying on
the audit report, they asserted several causes of action against the
IFC, including negligence, nuisance, trespass and breach of contract.
Also Read: Farmers Protest in Gujarat as Government Starts Taking
Possession of Land Acquired in 1997
The district court concluded that the IFC was immune from suit because
the IOIA grants international organisations the virtually absolute
immunity that foreign governments enjoyed when the IOIA was enacted.
The IFC argued before the US Supreme Court that affording international
organisations only restrictive immunity would defeat the purpose of
granting them immunity in the first place. It would expose international
organisations to money damages, which would in turn make it more
difficult and expensive for them to fulfil their missions, it argued.
“Allowing such suits would bring a flood of foreign-plaintiff litigation
into the U.S. courts, raising many of the same foreign-relations
concerns that we identified when considering similar litigation under
the Alien Tort Statute”, the IFC contended.
Mundra power plant. Credit: Wikipedia
IFC did not deny allegations
Significantly, the IFC did not deny the allegations of environmental
pollution that the Mundra plant caused to its surroundings.
Disagreeing with this, Justice Roberts opined:
The IFC’s concerns are inflated. To begin, the privileges and
immunities accorded by the IOIA are only default rules….Notably, the
IFC’s own charger does not state that the IFC is absolutely immune
Restrictive immunity hardly means unlimited exposure to suit for
international organisations, the majority Judges held.
Holding that the IFC is not absolutely immune from suit, they reversed
the judgment of the US Court of Appeals for the DC Circuit, and remanded
the case for further proceedings consistent with their opinion.
Petitioners, who included farmers and fishermen from Kutch, Gujarat,
sued the IFC for damages and injunctive relief in federal district
court, but the IFC claimed absolute immunity from suit.
The IFC is designated as an international organisation under the IOIA.
One hundred eight-four countries, including the US, are members of the
IFC. The IFC is charged with furthering economic development “by
encouraging the growth of productive private enterprise in member
countries, particularly in the less developed areas, thus supplementing
the activities” of the World Bank.
Whereas the World Bank primarily provides loans and grants to developing
countries for public-sector projects, the IFC finances private-sector
development projects that cannot otherwise attract capital on reasonable
The IFC expects its loan recipients to adhere to a set of performance
standards designed to avoid, mitigate and manage risks and impacts
associated with development projects. Those standards are usually more
stringent than any established by local law. The IFC includes the
standards in its loan agreements and enforces them through an internal
Interestingly, the plaintiffs in the case first approached the IFC’s
internal grievance mechanism for relief, but in vain.
Writing in /World Politics Review/, Elliot Waldman observes on March 11:
Whether courts agree that a loan to the Tata Mundra Ultra Mega Power
Plant project has “sufficient nexus to the United States” is
unclear, but lawyers for Earthrights International, the advocacy
group that represented the Indian plaintiffs, believe they have a
good chance of success. At least one other case, involving farmers
say that an IFC-supported company used death squads to terrorize
them and dispossess them of their land, is likely to move forward as
a result of last month’s ruling.
Meanwhile, international lawyers have hinted
the judgment could lead to calls for strengthening internal
accountability mechanisms of organisations like the IFC.
Indian governments turned a blind eye
But the worrying thing from the judgment is how the Centre and the state
governments, through their Pollution Control Boards, turned a blind eye
to the environmental pollution, which the local fishermen alleged, as a
result of the functioning of the Mundra plant.
Should not the Indian government have at least belatedly come forward to
bear the litigation expenses of the Mundra farmers and offer help in
further litigation in the lower courts in the US following this landmark
judgment? May be that would be too much to expect from the current
governments at the Centre and in Gujarat, hardly known for their
concerns for environmental pollution caused by mega projects.
You received this message because you are subscribed to the Google
Groups "Coalition for Environmental Justice in India" group.
To unsubscribe from this group and stop receiving emails from it, send
an email to
coalition-for-environmental-justice-in-india+unsubscribe at googlegroups.com
<mailto:coalition-for-environmental-justice-in-india+unsubscribe at googlegroups.com>.
To post to this group, send email to
coalition-for-environmental-justice-in-india at googlegroups.com
<mailto:coalition-for-environmental-justice-in-india at googlegroups.com>.
To view this discussion on the web, visit
For more options, visit https://groups.google.com/d/optout.
-------------- next part --------------
An HTML attachment was scrubbed...
More information about the WSM-Discuss