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Nigeria: Enabling Corporate Crime

AfricaFocus Bulletin
Oct 19, 2010 (101019)
(Reposted from sources cited below)

Editor's Note

A September U.S. Court decision dismissed a case against Shell for human rights abuses in Nigeria, with the sweeping claim that corporations could not be held liable under international law for human rights abuses. And a UN Environmental Programme report on oil in the Niger Delta, due to be completed early next year and funded by Shell Oil, is reported to include, without alternate views, claims from Shell that 90% of oil spills from its facilities are due to sabotage or attempts at theft rather than to negligence.

Despite some more positive news reports, including an announcement that Shell will spend some $2 billion to complete the long-delayed program of ending gas flaring in its Nigerian operations, campaigns to hold companies accountable for abuses against human rights and the environment are clearly suffering serious setbacks. However litigation continues in related cases against Chevron and in the Netherlands against Shell (see links below)

This AfricaFocus Bulletin contains several articles and blog commentaries on the two new developments. A previous AfricaFocus Bulletin from June on related issues is at http://www.africafocus.org/docs10/oil1006.php

Other links with relevant background include:

United States Court of Appeals, Second Circuit.
Kiobel v. Royal Dutch Petroleum Co PLC
http://caselaw.findlaw.com/us-2nd-circuit/1538603.html

Environmental Rights Action
http://www.eraction.org/

Justice in Nigeria Now
http://justiceinnigerianow.org/

Remember Saro-Wiwa
http://remembersarowiwa.com/

Friends of the Earth Netherlands, Law Suit against Shell
http://www.milieudefensie.nl/english
Direct link: http://tinyurl.com/2wp5yl3

Blog on Case against Chevron
http://bowotovchevron.wordpress.com/

For previous AfricaFocus Bulletins on Nigeria, visit http://www.africafocus.org/country/nigeria.php

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Nigeria: U.S. Judges Dismiss Case Against Shell

This Day, 17 September 2010

http://allafrica.com/stories/201009200297.html

Lagos -- A US Appeals Court yesterday dismissed a case against Royal Dutch Shell Plc that could have held the company liable over accusations that it assisted Nigerian authorities in violently suppressing protests against oil exploration in the 1990s.

Judges in the US Court of Appeals for the 2nd Circuit in New York ruled that until the Supreme Court deemed otherwise, corporations could not be held liable in US courts for violations of international human rights law.

One judge on the three-member appeals court panel wrote a strong dissent of the majority opinion, calling it "a substantial blow to international law."

The case was brought by families of seven Nigerians who were executed by a former military government for protesting Shell's exploration and development.

Shell has denied allegations of involvement in human rights abuses. The accusations against Shell included violations connected with the 1995 hangings of prominent activist Ken Saro-Wiwa and eight other protesters by Nigeria's then military government.

The families had sought to make the company the first foreign corporation found liable in a U.S. court for aiding human rights violations abroad under a 1789 U.S. statute, the Alien Tort Statute (ATS).

Chief Judge Dennis Jacobs and Judge Jose Cabranes said in a written ruling that the claims could not be allowed under the statute. They said the trial judge, who declined to dismiss some claims against Shell, should have thrown out all claims. "We hold, under the precedents of the Supreme Court and our own Court over the past three decades, that in ATS suits alleging violations of customary international law, the scope of liability -- who is liable for what -- is determined by customary international law itself," the ruling said.

It noted that no corporation has ever been subject to any form of civil or criminal liability under the international law of human rights.

"We hold that corporate liability is not a discernible -- much less universally recognized -- norm of customary international law that we may apply pursuant to the ATS.

"Accordingly, plaintiffs' ATS claims must be dismissed for lack of subject matter jurisdiction," the 138-page ruling said in part.

In a dissenting opinion, Judge Pierre Leval wrote: "The majority opinion deals a substantial blow to international law and its undertaking to protect fundamental human rights.

"According to the rule my colleagues have created, one who earns profits by commercial exploitation of abuse of fundamental human rights can successfully shield those profits from victims' claims for compensation simply by taking the precaution of conducting the heinous operation in the corporate form," Leval said.


Shell oil's 'licence to kill'?

Abena Ampofoa Asare

2010-10-13, Pambazuka News, Issue 500

http://pambazuka.org/en/category/features/67703

Following a controversial ruling by US Judge Jose A. Cabranes of the Manhattan-based federal Second Circuit Court of Appeals that transnational corporations 'cannot be held responsible for torture, genocide, war crimes and the like', Abena Ampofoa Asare discusses the challenges for establishing responsibility and valuing human rights over profit.

Last month, Judge Jose A. Cabranes of the Manhattan-based federal Second Circuit Court of Appeals issued a judicial opinion that sent international lawyers, human rights advocates and African environmental activists reeling. Cabranes ruled that transnational corporations who participate in gross human rights abuses cannot be held responsible for torture, genocide, war crimes and the like because, as corporations, their activities fall outside the jurisdiction of international law. The Pan-African Newswire described the court's opinion as a corporate licence to kill. Judge Pierre Leval, also of the Second Circuit, issued a dissenting opinion describing the Cabranes ruling as an unprecedented 'blow to the efforts of international law to protect human rights'.

The plaintiffs in Kiobel v. Royal Dutch Petroleum (Shell) were the relatives of Ken Saro-Wiwa, Dr Barinem Kiobel and other Ogoni leaders imprisoned, tortured and executed in mid-1990s Nigeria. Their crime was protesting the environmental devastation associated with Shell's long tenure in the region. The Niger Delta violence, culminating in the execution of Saro-Wiwa, a non-violent playwright, businessman and organiser, exposed the brutal overlap between big oil's financial imperatives and a military dictatorship's state repression. The tragedy of the Niger Delta forced the world to acknowledge the human costs of doing business as usual in the midst of a military dictatorship. 'This is it,' Saro-Wiwa wrote just months before his death, 'they [the Abacha dictatorship] are going to arrest us all and execute us. All for Shell.'

This lawsuit against the Dutch, British and Nigerian holdings of Shell Petroleum was thrust before the Manhattan federal appeals court under the Alien Torts Statute (ATS), an extraordinary 1789 law which allows non-citizens to file lawsuits in US courts for serious breaches of international law. As a puzzling relic of the first Congress, the ATS lay mostly dormant until the 1980s when creative lawyers began using the statute to bring cases of international human rights abuse to trial in the US. Since then, American federal court judges have been urged - unequipped and often unwilling - into debates about international human rights law as ATS lawsuits on South African apartheid, Bosnian genocide, chemical warfare in Vietnam and other atrocities appeared before their courts.

Last month, the Second Circuit's foray into the murky waters of international law via the Shell suit led to the shocking assertion that there is 'no historical evidence of an existing or even nascent norm of customary international law imposing liability on corporations for violations of human rights'. Another Second Circuit judge, Pierre Leval, violently disagreed with Cabranes's 'illogical' and 'strange' misreading of international law. In a separately issued opinion, Leval described international law as explicit in condemning human rights abuse and silent on the issue of corporate civil responsibility. Silences in the law, Leval argued, must not be interpreted to undermine the spirit, intention and norms of the law - particularly when the stakes are so high. This new precedent, Leval warned, would 'offer to unscrupulous businesses advantages of incorporation never before dreamed of ... businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despot's political opponents, perform genocides or operate torture prisons ... ---all without civil liability to victims'. Leval condemned the Cabranes ruling as a boon to corporations 'who earn profits by commercial exploitation or abuse of fundamental human rights', by allowing them to 'successfully shield [their] profits.... simply by taking the precaution of conducting the heinous operation in the corporate form'. If the Shell ruling stands, ironically, the legacy of Ken Saro-Wiwa and other activists who gave their lives fighting for corporate responsibility would now be attached to a legal decision shielding transnational companies that trample human rights.

Central to this legal controversy is a question that should not be lost in the crossfire: What does international law and custom prescribe for transnational corporations implicated in gross human rights abuse? Months before this ruling, legal experts at a Northwestern University roundtable triumphantly claimed that the 'future has already arrived' for international corporate social responsibility. Corporate respect for human rights was a foregone conclusion cemented over the past two decades when 'primary elements of corporate social responsibility--- human rights, environment, labor, and anti-corruption priorities - prevailed in the halls of government, in the rule-making of international institutions, in courtrooms, and in a growing number of boardrooms.' Fast forward a few months and the Shell decision exposes a starkly different reality: gains made in human rights efforts to rein in transnational business must be defended and expanded, or risk being lost. In reality, more than 15 years after Ken Saro-Wiwa's death, the international community has yet to ensure that transnational corporations do not contribute to genocide, war crimes, mass incarceration and torture as they do their business around the world.

Part of this situation is historical: international law has traditionally responded to crimes against humanity and atrocity with individual criminal prosecutions. At Nuremberg, the international community affirmed a new standard by recognising that 'crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.' For the first time, individuals, rather than states, were prosecuted for breaches of international law. This standard of criminal responsibility has held sway for the past 60 years.

Since Nuremberg, the international community's response to glaring human rights abuse has been to create international tribunals, such as the International Criminal Tribunal of Yugoslavia (ICTY), the International Criminal Tribunal of Rwanda (ICTR) and the Special Court of Sierra Leone, which have all been built upon the Nuremberg insight that flesh-and-blood men are to blame for atrocities. Even as these later tribunals have begun to chafe against such a narrow focus, they have adhered to the standard of pursuing only the individuals deemed 'most responsible' for atrocity. Increasingly, the Nuremberg emphasis on personal criminality seems less like revelation and more like restriction. Each year, more violence-scarred countries turn to truth and reconciliation commissions and other extrajudicial instruments to pursue broader notions of justice.

The creation of the International Criminal Court (ICC) has not altered international law's focus on individual criminal prosecutions. At the 2002 Rome Conference, there were discussions about whether corporations should be included within the ICC's purview. However, ideological and theoretical differences within the signatory countries torpedoed this proposal. There were some stakeholders who, theoretically, did not recognise the principle of corporate criminality in their own domestic law and others who were wary of imbuing the court with too much power. Given the ICC's limited resources, the vision of a narrowly focused court prevailed at the expense of the more ambitious versions. Ultimately, the ICC would not seek to respond to the gaps in international law's enforcement of human rights and instead would focus on bringing individual perpetrators to trial.

Although norms of international corporate responsibility have been articulated clearly, there are woefully few clear avenues to move from rhetoric to response. For the better part of two decades, the United Nations' cognizance of the raw power of transnational companies has led to a number of exciting initiatives. As early as 1984, the UN sought to establish a Code of Conduct for Transnational Companies to issue both mandatory requirements and voluntary guidelines for business. However, partially because of the Cold War context, this comprehensive code was never adopted.

In 2000, former Secretary-General Kofi Annan created the Global Compact, an initiative encouraging company commitments to corporate responsibility standards. However, the Compact was voluntary, strictly incentive-based and ultimately unable to change how transnational companies do business. Subsequently, the UN Sub-Commission for Human Rights created the 'Norms on the responsibility of transnational corporations and other business enterprises with regard to human rights'. Marked by bold rhetoric describing extensive human rights obligations for transnational corporations, in practice, these norms function as 'soft law' recommendations. At best, they constitute a core document about which to ultimately build more secure regulation mechanisms. Since their adoption in 2003, these norms have not led to regulations and thus have not been integrated into the practice of international law. Despite a decades-long effort in this arena, because the UN initiatives lack stringent enforcement mechanisms, they have not become part of the international legal system.

Into this gap enters the recent Second Circuit opinion dismissing the long history of UN efforts as aspirations, ideals and guidelines rather than as obligatory parts of the law. If Nuremberg's call for individual moral responsibility was the main achievement of 20th century international human rights, the 21st century's task will be to confront the institutions that create the conditions for genocide, atrocity and mass human suffering. The recent court judgment exposes the costs of the international community's hesitance to stringently regulate transnational companies. It must also renew our determination to create mechanisms that dissuade corporations from valuing profit above human rights, and forums to assess liability and undermine impunity if and when they do. If this lawsuit is a clarion call about the need to enforce established human rights norms as law, it may become an important part of Ken Saro-Wiwa's legacy and part of his continuing gift to the world.


Outrage at UN decision to exonerate Shell for oil pollution in Niger delta

John Vidal, Environment Editor

[Brief excerpts only. For full article see
http://www.guardian.co.uk
Direct link: http://tinyurl.com/34j3cys]

A three-year investigation by the United Nations will almost entirely exonerate Royal Dutch Shell for 40 years of oil pollution in the Niger delta, causing outrage among communities who have long campaigned to force the multinational to clean up its spills and pay compensation.

The $10m (œ6.5m) investigation by the UN environment programme (UNEP), paid for by Shell, will say that only 10% of oil pollution in Ogoniland has been caused by equipment failures and company negligence, and concludes that the rest has come from local people illegally stealing oil and sabotaging company pipelines.

The shock disclosure was made by Mike Cowing, the head of a UN team of 100 people who have been studying environmental damage in the region.

Cowing said that the 300 known oil spills in the Ogoniland region of the delta caused massive damage, but added that 90% of the spills had been caused by "bunkering" gangs trying to steal oil.

His comments, in a briefing in Geneva last week, have caused deep offence among the families of Ken Saro-Wiwa and the eight other Ogoni leaders who were hanged by the Nigerian government in 1995 after a peaceful uprising against Shell's pollution.

With 606 oil fields, the Niger delta supplies 8.2% of the crude oil imported by the US. Life expectancy in its rural communities, half of which have no access to clean water, has fallen to little more than 40 over the past two generations.

Communities accept that bunkering has become rife in some areas of Ogoniland, but say this is a recent development and most of the historical pollution has been caused by Shell operations.

Last year, Amnesty calculated that the equivalent of at least 9m barrels of oil has been spilled in the delta over the past half a century, nearly twice as much as the 5m barrels unleashed in the Gulf of Mexico by the Deepwater Horizon disaster.

Tonight the investigation was accused of bias by Nigerians and environmental groups who said the study - paid for by Shell and commissioned by the Nigerian government, who both have massive oil interests in the region - was unbalanced.

Ben Ikari, an Ogoni activist, said: "Nobody from Ogoniland would be surprised, because the federal government of Nigeria and Shell are the same cabal that killed Ken Saro-Wiwa and others."

...

Cowing defended the UN report. In a series of emails seen by the Guardian, he said: "UNEP is not responsible for allocating responsibility for the number of spills being found in Ogoniland. Rather, we are focusing on the science. The figures referred to are those of the ministry of the environment and the department of petroleum resources.

"This is a Nigerian issue, not a UNEP issue. However, I would add that from our extensive field work throughout Ogoniland we have witnessed, on a daily basis, very large scale bunkering operations.

"It's very controversial. We cannot say whether a particular spill is from one cause or another. Our observation is that there is a serious [bunkering ] problem. I am being seen to be siding with the oil companies, but I am not.

"We were provided with the official spill site list. This is given by the oil companies themselves but is endorsed by the [government] agencies. We are not on the side of the oil companies."

...

The full report, due to be published by December, is expected to warn of an environmental catastrophe.

...

The UN report saw more than 1,000 soil and water tests and other investigations carried out, and hundreds of communities consulted. The data generated is the first step towards a massive clean-up.

...


UN report on Nigeria oil spills relies too heavily on data from Shell

Report blaming 90% of spills in Ogoniland on locals stealing crude from pipelines allows companies to shirk responsibility

Nnimmo Bassey, chairman of Friends of the Earth International

25 August 2010

http://www.guardian.co.uk
Direct link: http://tinyurl.com/23j36qu

The United Nations Environment Programme (UNEP) is preparing to issue a report announcing that 90% of the oil spills in Ogoniland, Nigeria, are caused by the locals stealing crude from pipelines - and that Shell's aged pipelines and ill maintained installations account for a mere 10% of the spills. Why so little, we might ask? The UNEP has now admitted this figure is based on data from the oil industry and the Nigerian government. It's not surprising that this is in line with what Shell used to claim in the 1980s - that about 80% of the oil spills were caused by vandalism or sabotage. This claim that infrastructure has been sabotaged is particularly attractive to oil companies, because they are then exempted from paying compensation for any resulting spills. Why accept responsibility for polluting the locals' creeks, swamps and farmlands and destroying their livelihoods when you can blame the very same people for the mess now coating their own backyards with a toxic gloss?

Yet crucial expertise which could have painted a very different picture was sidelined. Prof Richard Steiner, an international expert on oil spills, was contracted to write the manual on oil damage assessment and restoration by the UNEP in 2004. But when Shell hired the agency to carry out the present study, Steiner's offer to provide scientific advice and guidance to the Ogoniland report was declined.

Steiner has already said that the findings now uncovered are incorrect, and has gone on to say: "Our earlier results suggest that much of the oil spilled there was due to poor practice by Shell, rather than bunkering and sabotage... it is entirely implausible that 90% of the oil spilled was due to bunkering [the act of criminal gangs stealing oil]." In short, his opinion is that this is not an independent, credible assessment.

The report does indeed rely heavily on figures produced by oil companies and Nigerian state statistics rather than on testimonies from those most affected - the communities in Ogoniland.

The National Oil Spill Detection and Response Agency of Nigeria has reported a total of 3,203 oil spills in the Niger Delta region in the last four years alone.

That list lengthens every day. The records of the Nigerian Directorate of Petroleum Resources show that nearly 2.5m barrels of crude oil were spilt between 1976 and 1996. Most damning of all, 77% of this oil was not recovered and contaminated the local environment. This is an environmental catastrophe which has a long history - some notable past spills include the Escravos spill of 1978 in which 300,000 barrels of crude oil was spilled into the coastal waters and another, in the same year, caused by tank failure at Forcados Terminal in which 580,000 barrels were spewed into the environment.

It is in this polluted environment that the people of Ogoniland have had to live for decades with spill after spill. The UNEP must be, and be seen to be, an independent arbiter of what has really happened there. There should be no room for suspicion that the $10m Shell paid the agency for this report will influence the outcome.


AfricaFocus Bulletin is an independent electronic publication providing reposted commentary and analysis on African issues, with a particular focus on U.S. and international policies. AfricaFocus Bulletin is edited by William Minter.

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