Blog de Jonathan Kaufman

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: 

Nigerian State-Owned Oil Company Can Be Sued in ECOWAS Court, But Not Shell 

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.

I recently had the chance to learn a bit more about the recent reforms in the Spanish Penal Code, which establish corporate criminality for a number of acts for the first time ever. Until now, Spain has been one of a dwindling number of countries (along with Germany, Italy, and Russia) that has resisted subjecting corporations to criminal law.

The list of crimes covered includes environmental crimes, corruption, terrorism, human trafficking, drug trafficking, and money laundering, as well as wide variety of economic crimes. Businesses are criminally liable for the acts of their directors, managers, and legal representatives that are committed on behalf of the company, and for the acts of employees that are committed in the course of their employment and on behalf of the company, if the company did not exercise reasonable control over the employee under the circumstances.

The criminal liability established here gives rise to concurrent civil liability as well.

The articles and documents I've read don't give me much of a sense of how far criminal jurisdiction extends – for example, whether a Spanish company can be prosecuted in Spain for committing one of these crimes abroad. (It may depend on the crime -- it's clear that the anti-corruption provision applies to bribery of foreign officials, but I'd imagine that the environmental provisions apply only to violations of Spanish environmental law, which probably doesn't have extraterritorial effect.) And for those parts of the new reform that do apply extraterritorially, it’s unclear to me whether and under what circumstances Spanish companies may be held responsible for the actions of their foreign subsidiaries.

I’m pleased to report that the Inter-American Court of Human Rights (IACHR) ruled on November 26 that Mexico is responsible for the arbitrary detention and torture of Rodolfo Montiel Flores and Teodoro Cabrera García, two environmental activists who were falsely imprisoned and subjected to horrific physical and psychological abuse by Mexican military forces in 1999-2000.  This legal victory comes after nearly a decade during which Mexico obstructed investigations and blocked the victims and their advocates from seeking justice.  At the request of the Centro Prodh, the Mexican NGO representing the Montiel and Cabrera families, ERI submitted an amicus brief to the IACHR on the rights of environmental defenders.

In some ways, the Court’s opinion is quite progressive.  It sees right through the sham judicial procedures and investigations carried about by the military, noting the irregularities and delays and rightfully rejecting doctored medical reports that papered over the effects of torture on the bodies and minds of the victims.  It finds that Mexico’s practice of submitting cases involving human rights violations to military jurisdiction is inconsistent with the protection of human rights, and insists that the state allow such cases to proceed in the ordinary civilian courts instead.  And it requires that the Mexican State provide medical and psychological care to Srs. Montiel and Cabrera.

Professor John Ruggie, the UN’s Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, released draft Guiding Principles (GPs) on the responsibilities of States and businesses with respect to human rights this week. Since the inauguration of his mandate, Prof. Ruggie’s “Protect, Respect, and Remedy” framework has set the tone for international discussions about the human rights obligations of businesses, and I’ve been very interested to see his final proposals for “operationalizing” his framework.

I’ll be providing more extensive commentary on the GPs (both to Prof. Ruggie himself and in this blog) in the coming weeks. In general, ERI supports strong recommendations on both preventative measures and access to binding judicial remedies for business-related human rights abuses. We are also interested in what comes next – what structures or processes will arise to carry on the Ruggie mandate and ensure the application of his principles to business conduct worldwide.

As you can see from the copious materials his team has produced, the GPs are the product of almost six years of intensive and extensive study, discussion, and consultation with business, civil society, academia, and state actors worldwide. While we at ERI may wish that Prof. Ruggie’s conclusions went farther than they do, we recognize the tremendous amount of work that has gone into this process and congratulate the Special Representative and his staff on creating a principled, uniform framework within which to think about business and human rights.

Here’s an item of great interest, which gives me some hope that the legal fight for corporate accountability for human rights abuses is going global.  Last week, a group of human rights and legal organizations filed a motion in a court in Québec, asking to be certified as representatives of a class of villagers from Kilwa, D.R. Congo, in a lawsuit against Anvil Mining over the company’s complicity in a 2004 massacre by the Congolese military.  ERI has discussed this case with the international organizations involved, including Global Witness and Rights and Accountability in Development (RAID), for the past two years, and encouraged the victims’ advocates to file in Canada.  We’ve provided some advice on international legal issues, but I’m especially pleased that the Canadian Centre for International Justice (CCIJ), in cooperation with these NGOs and private lawyers, has taken this on and has now broken new ground in filing this case.  Now, after a long struggle to find a forum in which to have their case heard, the victims of the Kilwa massacre may finally get their day in court.

One day in 2004, a group of about six or seven poorly-armed men arrived in Kilwa, a small town in a remote part of the Katanga region of the DRC, and quickly took control in the name of an otherwise unknown rebel group.  They informed the managers of the Dikulushi copper mine, owned and operated by a subsidiary of Anvil, that they did not intend to disturb mining operations, although by controlling Kilwa, they had the means to cut off the only port by which copper ores could be transported to the outside world.  Anvil’s management apparently reacted by calling the Congolese military, transporting a division of over one hundred soldiers from the provincial capital to Kilwa by plane and jeep, and driving them around the town over the course of two days while they burned houses, raped women, slaughtered civilians, and buried bodies in mass graves. 

In 2007, Global Witness published a comprehensive report on these events, titled "Kilwa Trial: a Denial of Justice."

I was sad to hear last week that the C-300 Bill was defeated last week in the Canadian Parliament, after over a year of suspense.  What was C-300, you may ask?  Despite its name, it is not a highly explosive form of dynamite, although to hear Canadian mining companies talk about it, you might have thought that it had the potential to singlehandedly devastate Canada’s economy.  Rather, C-300 was a sensible bill introduced by Liberal MP John McKay to require the Canadian government to investigate credible allegations of violations of international human rights and environmental standards by Canadian mining companies, and to withhold public money to companies that have committed abuses.  ERI advocated for C-300 by sending a letter of support when the Bill was in front of the Standing Committee on Foreign Affairs and International Development last year.

A recently leaked report prepared by the Prospectors and Developers Association of Canada shows that – even according to their own estimates – Canadian mining companies have a vastly higher incidence of CSR violations than other countries.  Yet in their (ultimately successful) campaign against C-300, companies and industry associations argued that:

I just read that Nnimmo Bassey, co-founder of the Nigerian NGO Environmental Rights Action (ERA) and the current Chair of Friends of the Earth International (FOEI), has been awarded the Right Livelihood Award for 2010.  As anyone who knows him and his work can attest, this award—often characterized as the “Alternative Nobel Prize”—is richly deserved.  Nnimmo has been working for decades to expose the environmental and human devastation oil production has wreaked in the Niger Delta, and to provide legal and advocacy support to communities affected by oil company operations.  ERI has had the privilege to work with him on a number of occasions.

As Executive Director of ERA, Nnimmo has led the charge in Nigeria to stand up to multinational corporations, by demanding accountability for their pollution of the delicate ecosystems of the Niger Delta and their complicity in human rights abuse by Nigerian security forces.  ERA trains community monitors, campaigns widely on issues like oil spills and gas flaring, and is involved in groundbreaking local and transnational litigation against oil companies – particularly Shell and Chevron – that are active in the region.  Among the organization’s many achievements is a landmark decision from a Federal High Court in Nigeria declaring that Nigeria’s law permitting some forms of gas flaring violates the constitutional guarantee of the right to life.  As Chair of FOEI, Nnimmo is an internationally recognized, leading campaigner for environmental justice, speaking out on climate change, the right to adequate food and water, and biodiversity.  His slogan of “keep the oil in the soil, keep the coal in the hole, keep the tar sand in the land” has become one of the most recognizable rallying cries of the international environmental movement today.

My friends and colleagues keep asking me how I feel about the Kiobel decision that came down last week in the Second Circuit, which decided that corporations can’t be sued under the Alien Tort Statute.  Oddly, I can’t seem to get too upset about it – probably because I just got back from a conference in Bogotá hosted by the German human rights organization ECCHR and the Colectivo de Abogados Jose Alvear Restrepo (a Colombian lawyers’ collective) that gave me new hope for the ability of lawyers and activists from the North and South to do really high-quality work together.  For quite awhile now, I’ve been thinking about how human rights defenders and advocates can pool resources, share expertise, and generally give each other a hand, and it’s exciting to see these sorts of collaborations beginning to materialize.

The topic of the conference was “Strategic Transnational Human Rights Litigation against Corporations,” and the focus was on a handful of case studies involving labor rights, environmental and social damage, violent human rights abuses, and privatization of basic resources.  Over the course of three days, a small number of lawyers and other advocates from the U.S. and Europe sat down with local attorneys and community representatives from a dozen from all over Latin America – from Mexico to Argentina and Brazil to Peru – to develop actual strategies for elevating these cases to the international stage.  We talked about litigation in home countries (i.e., the countries where multinational companies are based), complaints using international mechanisms like the OECD specific instance procedure and the Inter-American Commission on Human Rights, and effective communications and advocacy plans.

Last week, a Federal High Court in Delta State, Nigeria, handed down a judgment for 15.4 billion naira – about 100 million U.S. dollars – against Royal Dutch/Shell’s Nigerian subsidiary, declaring Shell liable for the damage caused by the mammoth, decades-long Ejama-Ebubu oil spill.  The judgment also ordered Shell to remediate the affected land to its pre-spill condition.  Yet in light of a promised appeal by Shell, the people whose lands and livelihoods were destroyed by Shell’s negligent actions are years from seeing any relief.  Shell claims to obey local laws and respect communities’ rights.  However, Shell, like other oil companies in cases worldwide, has employed questionable tactics that overwhelm local courts, seeking to deny, delay, and ultimately derail the judicial process in a bid to avoid liability.

On May 28, 2010, in a procedurally bizarre and legally dubious move, the United States Court of Appeals for the Fifth Circuit dismissed a climate change lawsuit.  The court’s decision in Comer v. Murphy Oil deprives people of a remedy and a right to appeal when their lives and property have been damaged due to the destructive effects of climate change.  

In Comer, a group of property owners filed suit against dozens of oil, gas, and chemical companies, alleging that the greenhouse gas emissions from their industrial activities had helped change the climate in the Gulf of Mexico and amplified the damage caused by Hurricane Katrina.  The District Court dismissed the case, finding that the case raised political questions that were more appropriate for Executive Branch determination, and that plaintiffs had no standing to sue.  This ruling was reversed on appeal by a three-judge panel of the Fifth Circuit, which found that in the absence of federal guidance on the issue, normal tort principles could apply to the case.  Defendants asked the Fifth Circuit to rehear the case en banc – i.e. in front of a panel of all the appellate judges in the Circuit. 

Here’s where the procedural shenanigans begin.  In February, the Fifth Circuit voted to hear the case en banc, thereby instantly voiding the panel decision in favor of the plaintiffs.  Out of sixteen judges on the court, seven judges recused themselves due to conflicts of interest – presumably because they had some connection to or investment in one of the numerous major corporate defendants, which include both Exxon Mobil and BP.  The Fifth Circuit requires a quorum of nine judges to make en banc decisions; in other words, after the recusals, only a bare quorum remained to hear the case.  But before the en banc hearing, it was announced that one more judge needed to recuse herself, leaving the court without a quorum to hear the case.