Editor’s Note:

A group of Chinese fishermen sued oil giant ConocoPhilips in a Houston-based US federal court on July 2 over the Bohai Bay oil spill in June 2011. One of the attorneys for the fishermen said that “this case will be heard because the decisions made which causes this environmental disaster were made at the US Headquarters of ConocoPhillips in Houston, Texas” while Daren Beaudo, Director of External Communications and Media Relations for ConocoPhilips claimed that “based upon reports of the claims, they are not appropriate for US courts and should be dismissed.” What factors will influence the US court’s decision? Will the US court offer more compensations to the fishermen than Chinese authorities? Global Times reporter Fu Qiang talked to two experts.

Scott Schang, vice president of Climate and Sustainability at the Environmental Law Institute and Editor-in-Chief of Environmental Law Reporter

In the past, other plaintiffs have sought to have US courts hear cases involving alleged harms in foreign countries. There is the Ecuador case against Texaco and Chevron and there was a long-running case involving a fumigant and banana plantations in Latin America.

Distance and potential legal and political barriers could complicate evidentiary issues for the plaintiffs. In some cases, unfortunately, this distance has also allowed some plaintiffs to introduce fraudulent evidence into the US courts. Litigation is often filed for a variety of reasons, some having to do with justice, some with politics, some with negotiating position.

The most likely threshold issue as to whether the US court will hear the case likely revolves around whether the US court has jurisdiction to hear such a case. The US court in general defer to the countries in which the harm occurred to handle such cases.

The Alien Tort Statute gives US courts jurisdiction to hear some cases. This will depend on the specific charges levied by the plaintiffs. In this sense, I cannot predict whether the court will take the case.

Xia Jun, lawyer at Zhongzi Law Office in Beijing.

Though ConocoPhilips said it would donate $191 million to help pay for social projects in Bohai Bay and related environmental projects, these fishermen claimed they have been excluded from the compensation.

This case has shown China’s imperfect legal system, which needs to be improved. But the legal system in China is not the sole factor to be blamed in this case. The national situation in China is complicated.

In my opinion, the government’s administrative involvement in the ConocoPhilips’ oil spill case was an important prelude for subsequent problems. Admittedly, to deal with the oil spills crisis through administrative means can be efficient at the beginning phase. But it could also leave behind many problems.

When dealing with such cases, the government, intentionally or unintentionally, may not be willing to disclose the facts because they’re used to trying to keep negative news from the public. But once the facts get out, the public will feel deceived.

Without an independent justice system, victims can’t protect their interests and they strive to find compensation abroad.

I believe that there should be a non-governmental independent social institution that manages the distribution of compensation

Whether or not these fishermen can receive a satisfactory result in the US is still up in the air. The US federal court has yet to accept this case. And even if it is, it will be a long and expensive process to investigate and argue.

Such transnational environmental cases heard in the US have previously been considered as milestones in the defense of human rights. Therefore I am afraid the ConocoPhilips case may risk being politicized.

If the federal court decides to hear the case, it may develop into judicial interference into China’s civil affairs and begin a new round of attacks on the state of human rights in China.