Holding Corporations Accountable: Shell in the Niger Delta

The Wallace Global Fund (WGF) has increasingly focused on the role of powerful non-state actors in exacerbating environmental and human rights abuses, both through grantmaking to increase corporate accountability and through mission-related investing (the process of aligning the foundation’s investments with its mission). Because the pursuit of fossil fuels plays a significant role in human rights and environmental abuses, WGF has focused specifically on the actions of corporations within the oil and coal sectors. An example of this focus is the case of Shell’s actions in the Niger Delta.

WGF’s aim in this case is two-fold: (1) hold Shell accountable for its human rights and environmental abuses within the Niger Delta; and( 2) create a powerful example of tools that can be used to hold other corporations liable for similar abuses.

The issue came to the world’s attention in in the mid-1990s, when Ken Saro-Wiwa, a leader of the Ogoni people in the Niger Delta, spearheaded a protest movement that forced Royal Dutch Petroleum (Shell) to withdraw from Ogoni territory,[1] where its operations had caused devastating environmental damage. The backlash was swift and fierce: Nigerian government forces attacked and burned Ogoni towns, tortured and arbitrarily executed Ogoni men and women, and arrested the key protest leaders on trumped up charges.[2] In November 1995, the Nigerian military regime executed nine Ogoni leaders, including Saro-Wiwa In the immediate aftermath of the executions, there was an international outcry over the executions. But neither the government nor Shell was held to account for the environmental damage or the human rights violations.[3] Many environmental and human rights groups around the world have continued to campaign on the violations, the issue of accountability, and around clean up in the Niger Delta.

But increasingly, advocates in the United States began to deploy domestic strategies for holding corporations accountable for their “extra-territorial obligations,” or impacts abroad. WGF adopted a multi-pronged approach to addressing these violations: supporting innovative litigation tools and campaigning to raise awareness. Two key grantees of WGF, the Center for Constitutional Rights (CCR) and EarthRights International (ERI), sued Shell in the United States for its complicity in the repression of the Ogoni people and the executions of the Ogoni Nine (Wiwa v. Royal Dutch Petroleum Co.). In addition, WGF also supported organizations that were focused on educating people, raising awareness, and campaigning against Shell, including groups that launched Shell Guilty, an online portal of information that enabled activists to call for justice and accountability in Nigeria and beyond.

In their lawsuit, one of the legal tools CCR and ERI used was the Alien Tort Statute (ATS), a centuries-old law that grants U.S. district courts jurisdiction over any civil action by an “alien” for a wrongful act committed in violation of international law or a treaty of the United States. In recent decades, human rights groups have been able to use the ATS to hold perpetrators of human rights abuses – including corporations – legally responsible for crimes like torture, war crimes, and crimes against humanity. On the eve of the trial, Shell agreed to a settlement of $15.5 million to compensate family members of the deceased victims as well as establish a trust fund to benefit the Ogoni people. While this was certainly a victory for the plaintiffs, it did not prevent powerful corporations from seeking to undermine the few legal avenues that exist to prevent impunity for corporations.

Unfortunately, on April 17, 2013, in its decision in Kiobel v. Royal Dutch Petroleum Co. (a companion case to the above Wiwa v. Royal Dutch Petroleum Co. brought by private attorneys), the Supreme Court further undermined efforts to hold corporations to account within the U.S. legal system when it held that the ATS cannot be applied to human rights violations committed abroad, unless there is a strong connection to the United States.  The Justices unanimously agreed that the mere presence of a multinational corporation was not a clear enough connection.  However, the splintered concurring opinions by Justices Kennedy, Alito and Breyer does leave open the possibility that companies and individuals may still be liable for their abuses in cases with a stronger connection to the United States.

While WGF’s grantmaking in support of litigation has been partially successful in holding Shell accountable, to the plaintiffs and in the realm of public image, the bigger question of how to hold non-state actors legally accountable is yet to be resolved.

The Wallace Global Fund will continue to support human rights and environmental rights activists to put continued pressure on companies, with the use of litigation strategies and creative legal tools. The ultimate goal is to establish new human rights norms and policies targeting powerful non-state actors. To be successful with these strategies will require continued strong constituency building and public mobilization by human rights and other allied organizations. To achieve this coordinated norm setting and policy development, and public mobilization, WGF supported the creation of a new coalition, the International Corporate Accountability Roundtable. It is comprised of environment, labor, development and human rights NGOS seeking to advance innovative new legal and policy reforms, while building a more coordinated and powerful constituency for corporate campaigning in the US.

 

[1] New York Times “Blood and Oil: A Special Report; After Nigeria Represses, Shell Defends its Record” http://www.nytimes.com/1996/02/13/world/blood-and-oil-a-special-report-after-nigeria-represses-shell-defends-its-record.html?pagewanted=all&src=pm

[2] Center for Constitutional Rights “Wiwa et al v. Royal Dutch Petroleum et alhttp://ccrjustice.org/ourcases/current-cases/wiwa-v.-royal-dutch-petroleum

[3] Center for Justice and Accountability “Kiobel v. Shell” http://cja.org/section.php?id=510

 

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