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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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