EarthRights International (ERI) which has taken up the case on behalf of Ismail and other Indian fisherman then approached the Supreme Court early this year. The apex court granted the petition in May this year. It is slated to come up for hearing in the next session beginning October.
EarthRights International said the brief submitted by the US Government before the Supreme Court supported Ismail and other fishermen.It claimed the IFC had a role in funding a destructive power plant project in Gujarat that had devastated their community and the local environment.
The IFC has not denied that the harms have occurred, but has argued that it is immune and cannot be held liable, no matter how illegal its conduct, and no matter how much harm it causes.
This is for the first time that the Supreme Court will consider international organisation immunity.”We are pleased the Government has weighed in against absolute immunity,” said Rick Herz of EarthRights International, one of the attorneys who represents the plaintiffs in the case.
The US government’s brief filed this week adds substantial weight to that argument, emphasising the clear congressional intent to subject international organisations like the IFC to the same immunity rules as foreign governments, and the consistent position of the executive branch, which has for decades recognised only restrictive immunity for international organisations.
A number of other amicus curiae briefs were also filed this week, including briefs by a bipartisan group of a Members of Congress, International Law Scholars, and environmental, human rights, and development-focused advocacy organisations that have experience working with the IFC.All of them have argued that the DC Circuit’s absolute immunity holding is wrong and should be reversed.
The congressional brief explains “[t]here is no reason that international organisations should be immune to suit in cases where the states that created them are not,” as that would permit states “to evade legal accountability merely by acting through international organisations”.The brief from advocacy organisations refutes the IFC’s suggestion that restrictive immunity would “open the floodgates”.
It argues that allowing suit in cases like this one, where even the IFC’s own ombudsman has condemned its conduct, would increase the accountability of these institutions and help restore the IFC’s credibility as a poverty-fighting institution, which has already been damaged by the public perception that it “consider[s] itself to be above the law”.
In addition to EarthRights International, the plaintiffs are also represented before the Supreme Court by the Stanford Law School Supreme Court Clinic and O’Melveny and Meyers.
