It’s been a big couple of weeks for news on the human rights and environmental consequences of Shell’s operations in Nigeria. I’ve been a little behind on this, so I’m rolling a few updates into one here:
I was disappointed – but not surprised – by a decision that came down last month from the ECOWAS Community Court of Justice in a case filed by the Socio-Economic Rights and Accountability Project (SERAP) against the Government of Nigeria and several multinational oil companies, alleging violations of internationally protected human rights. The ECOWAS Court, which generally hears petitions against member states of the Economic Community of West African States based on economic and human rights treaty obligations, found that it did not have jurisdiction to entertain suits against private companies. However, the Court did decide that the case could go forward against both the Nigerian government and NNPC, the state-owned national oil company.
The Court’s decision today was probably right – as far as I’m aware, with the exception of the international criminal tribunals, which are set up explicitly to try non-state actors, all the regional and international courts that base their jurisdiction on treaty can only hear cases against the states and institutions that are members of the treaty. However, the court’s findings on the jurisdictional question illustrate exactly the bind created by the recent, mistaken decision in Kiobel v. Royal Dutch Petroleum Co. That case, as my colleague Marco Simons has previously written on this blog, ruled that the corporations cannot hold duties under international human rights law and, therefore, cannot be sued pursuant to the Alien Tort Statute. The ECOWAS Court did not find that corporations are not subject to international human rights law; rather it noted that claims cannot yet be brought against corporations in international courts. That being the case, “the only available alternative left to those seeking for justice against corporations has been domestic jurisdictions.” And then the Court specifically mentioned Kiobel, noting that the Second Circuit had cut off even the domestic avenue that is left by the unavailability of international courts to enforce international law against corporations.
I haven’t yet been able to get a full copy of the Court’s decision, but I imagine that it allowed the suit against NNPC – despite not having jurisdiction over companies – because NNPC is an agency of the Nigerian state. This will be helpful for future litigants in the ECOWAS Court, as NNPC is a participant in all oil ventures in Nigeria. Also, if the Court’s ruling is picked up in other regional forums, like the European Court of Human Rights or the Inter-American Court of Human Rights, it could potentially enable suits against Western state-owned oil companies with international operations, including Statoil (Norway) and Petrobras (Brazil). Of course, it remains to be seen how far the Court is willing to push NNPC’s potential liability. If that liability is interpreted broadly, NNPC may be liable for all the wrongful acts of its joint venture partners within the scope of the venture; if interpreted narrowly, on the other hand, it could be liable only for acts in which it specifically participated.
Media and governments have been turning up the heat on Shell for its practices in Nigeria. The Dutch parliament is holding hearings on Shell’s impacts in Nigeria starting Wednesday, January 26, in the wake of the 15th anniversary of the execution of Ken Saro-Wiwa and the release of troubling Wikileaks material about Shell’s penetration of the Nigerian government. ERI represented ten Ogoni plaintiffs suing the oil company for complicity in torture, execution, and other abuses committed against in Wiwa v. Royal Dutch Petroleum Co. litigation which settled before trial in June 2009, and to which Kiobel is a companion case. Shell was also one of the defendants in the ECOWAS Court case described above. In a statement that was recently delivered to the Dutch press, Shell claims that the Wiwa plaintiffs agreed to a settlement because they had no case, that they had been shown to have bought the testimony on which they would have relied, and that they tried to cover up this fact. I’d like to set the record straight here – Shell’s claims are, of course, nonsense.
First, the plaintiffs settled the case because Shell’s $15 million dollar offer would go a long way toward helping them rebuild their own lives and to fund a community trust that would support development projects for the Ogoni people. There was ample evidence on which to go to trial – the plaintiffs were prepared to do so and were actually surprised by the settlement offer – but they decided to settle their claims rather than face years of appeals and the unpredictability of a federal jury.
Second, a court has found that Shell had no direct evidence that any witnesses were bribed, and Shell’s lawyers were actually sanctioned for baselessly accusing the Kiobel lawyers of putting on false testimony and for inflating the amount of money the Kiobel lawyers paid to transport witnesses and house them in a place outside Nigeria where they could be interviewed safely. (These sanctions were later reversed on appeal because the court found that it wasn’t completely unreasonable for Shell to jump to the conclusions that it did, although the court certainly did not find that the accusations were likely to be true.)
Finally, the Wiwa lawyers did not try to prevent the court from disclosing these accusations. Rather, they asked the court not to allow Shell to refer to them in front of a jury, as the plaintiffs weren’t planning on using most of the disputed testimony at trial, the accusations had not been shown to be true, and, in any event, they referred to acts allegedly committed in a completely separate case by a completely different legal team. This request was not “unsuccessful”; it was in fact not decided on because the case never went to trial.
It seems silly to be re-hashing these old arguments more than a year and a half after the case was settled, but I suppose no one should be surprised that it’s happening now. Shell has always sought to portray the Wiwa settlement as a “humanitarian” act rather than what it was: a calculated decision to avoid bad publicity and a long-dreaded trial in which it faced the likelihood of a damaging judgment of complicity in human rights abuses. Slinging mud at the plaintiffs and their lawyers is the easiest way to distract from this basic truth; whenever the media threatens to re-examine the plaintiffs’ claims, we can probably expect more of the same.
The legal troubles Shell faces in the Netherlands over its Nigeria operations – which include a lawsuit over oil pollution in the Niger Delta and upcoming Dutch parliamentary hearings – continue to mount. Amnesty International and Friends of the Earth Netherlands have filed a complaint under the OECD Guidelines for Multinational Enterprises, accusing Shell of misleading the public by misattributing the blame for oil spills in the Niger Delta to sabotage rather than its own substandard practices.
I’ve been working on the OECD Guidelines for some time now, so I’m particularly interested to see how this process works out. Basically, governments sign onto the Guidelines – which articulate widely accepted standards on topics like enivronmental performance, corruption, transparency, and labor practices – and commit to creating a National Contact Point (NCP) to handle complaints that the country’s companies are not complying. While the Guidelines are not legally binding on companies, the NCP system theoretically creates pressure on the companies and assists them to conform to the Guidelines, and provides mediation services to help affected parties and companies come to an agreement on how to proceed. In practice, most countries’ NCPs do relatively little to resolve disputes under the Guidelines (the U.S. is a particularly egregious example), but a few governments have shown a real commitment to the process. The Netherlands fits into the latter category, which gives me some hope for this complaint.
The complainants claim that Shell consistently publicized baseless figures about oil spill responsibility, including statistics stating that 85% of all oil spills in the Delta were due to attacks by militants and sabotage by Delta residents. In doing so, it wrongly absolved itself of blame for leaky pipes and shoddily maintained facilities, thereby avoiding financial liability for cleaning up the spills and compensating injured individuals and communities. This complaint may serve to counter a controversial report released in August 2010 by the UN Environmental Program (UNEP), which mostly exonerated Shell of responsibility for 40 years of oil pollution in Ogoni. UNEP has since made clear that the information on which this conclusion was based came entirely from the Nigerian government and drew from figures provided by the oil companies.
If it takes its dispute resolution function seriously, then the Dutch NCP has the opportunity to help deal with this controversy once and for all. I recognize that this small government institution has limited resources and can hardly undertake a full investigation without the cooperation of the Nigerian government. However, the NCP can at least attempt to conduct site visits and interviews on the ground, in the Delta region. That failing, it can invite public participation in an effort to collect information from a wider range of actors than those typically considered when compiling oil spill statistics. One thing is for sure: if the NCP throws up its hands and simply relies on the government and the company’s data, as UNEP did, we’ll see more of the same – continuing, mutual recriminations and a lack of accountability for the environmental devastation of the Niger Delta.
This post was written by Jonathan Kaufman, former staff.