Blog de Borja Fdez. Burgueño

Blog especializado en derecho administrativo, derechos humanos, asilo y protección internacional.

Human Rights vs Royal Dutch Shell

Kiobel v. Royal Dutch Shell Petroleum

Pdf: Human Rights v. Shell

1. Introduction

The legal principle of universal jurisdiction allows national courts to try cases of the most egregious crimes against humanity and the gravest violations of Human Rights (H.R.) even though they were committed in a third country. However, this controversial doctrine is not worldwide accepted and has not yet been applied to judge a corporation in a United States court under the Alien Tort Statue.  Kiobel v. Royal Dutch Shell Petroleum CO could be the first case in which a non-American corporation would be punished by a U.S. court for committing H.R. crimes in a third country.

After giving a general overview of Shell’s actual situation and of how the company operates in Nigeria, both arguments of Shell and of the petitioners about whether or not a U.S court can hear the case will be exposed. Finally, in the conclusion, I will explain the importance of this case and I will give my personal approach.

2. Royal Dutch Shell and Human Rights

2.1 About Royal Dutch Shell

2.1.1 Royal Dutch Shell

Royal Dutch Shell is a global group of oil and gas companies. The group operates and employs people in more than 80[1] countries and territories. Its headquarters is settled in the Netherlands –The Hague-, whereas its registered office is placed in the United Kingdom – London[2]. During 2011, the company had a $470,171 Million revenue[3] and nowadays controls 2% of the world’s oil production and 3% of the world’s gas production[4]. In the last 5 years the dividend per share of Shell (RDSA) has grown by 9.19%[5].

The company’s culture claims that their “aim is to meet the energy needs of society, in ways that are economically, socially and environmentally viable, now and in the future”[6]. Therefore, one can always say that its social responsibility is focused at all the shareholders, according with R. Edward Freeman’s theory of corporate’s social responsibility in which he included as shareholders all the parties “who can [be] affected or [are] affected by the achievement of the firm’s objectives”[7] -and thus is in opposition to the Milton Freidman’s theory[8]. Nonetheless, based on the following events, we can appreciate that that phrase is not accurate with the company’s way of doing business in Nigeria.

Borja Fernández Burgueño

2. 1.2 Royal Dutch Shell in Nigeria

Royal Dutch Shell employs around 90 thousand people[9] and, among them, 2.22%[10] are Nigerian employees. In Nigeria, this corporation operates in the south coastal territories <map_1> and has a big amount of oil and gas projects and investments in that area[11]. The corporation’s production in 2011 was around 385 thousand boe/d (barrels of oil equivalent per day)[12]. During the same year, important discoveries were made in that African country[13] <map_2>. According with the Shell’s social analysis in the annual company’s report, “[s]ecurity in Nigeria remained relatively stable during 2011”[14], but Shell has not always had this opinion.

Since the late 1950’s, Shell has been working in the oil industry in Ogoniland [15]<map_3>. Shell’s oil contamination in Ogoniland was severely impacting many components of the environment[16] , human health, security, livelihoods and destroying all the fishing resources, the major economic activity of the Ogoni population[17]. Shell claimed that those negative externalities were all caused by sabotage and denied any responsibility[18]. Nowadays the United Nations Environment commission affirms that the environmental restoration may take between 25 to 30 years[19].

2.2 Kiobel v Royal Dutch Shell Petroleum

2.2.1 Facts, timeline and general allegations

In 1993 the peaceful movement of Ogonis to fight against Shell’s environmental degradation in the Niger Delta had already grown too much for the Dutch corporation and the company decided to ask the government for military support to control the local demonstrators. From that point, which matches with the start of Sani Abacha dictatorship -1993 to 1998-, to 1995  Shell, with the government support, has actively intervened in violations of H.R. such as “torture, extrajudicial execution, prolonged arbitrary detention and crimes against humanity”[20]. Insofar Shell’s agents helped and incited several attacks committed against the Nigerian people who opposed Shell’s environmental violations[21]. So as one can see, Shell violated H.R.[22] and, therefore, that “could be considered as an offence against the law of nations”[23].

In 2002, Esther Kiobel sued against Royal Dutch Shell Petroleum in the United States District Court for the Southern District of New York (Esther Kiobel, Individually and on behalf of her husband, Dr. Barinem Kiobel, ET AL; v.; Royal Dutch Petroleum CO., ET AL). In 2006, the Court dismissed a few of Kiobel’s arguments but allowed claims of encouraging “arbitrary arrest and detention; crimes against humanity; and torture or cruel, inhuman, and degrading treatment to stand”[24]. On October 1th 2012 petitioners and defendants reargued whether or not the Court can hear violations of the law of nations occurred in a third country[25]. The answer of this question will drastically change the way that companies operate abroad.

US Supreme Court

2.2.2. Has the U.S.A. jurisdiction to judge a non-national company in a third country for H.R. violations?

a) Arguments pro

The Alien Tort Statute <annex 4> (ATS), enacted in 1789, gives jurisdiction to the US’s districts courts of any civil action committed by an alien for a tort violating the Law of Nations[26]. Thus, those egregious International Law violations committed by Shell may be judged under the ATS.

Petitioners claim that extraterritorial limitations may not be a limit of the application of ATS based in the precedent U.S. court decisions[27] like in Filartiga v. Pena-Irala, in which non-Americans were punished for committing torture in Paraguay.

Mr. Hoffman, Kiobel’s barrister, alleged that the cause of action in this case does not undermine the restrictions on ATS jurisdiction established in 2004 in the case Sosa v. Alvarez-Machain[28] [29]. Those restrictions are that the violation must be comparable to the characteristics of the international crimes of the 18th century which the ATS illustrated in 1789. Filartiga’s case affirms that the 21th century torturers have become like the pirate and slave traders in the 18th century[30], therefore Sosa’s restrictions do not hinder the application of the ATS.

b) Arguments against

If the U.S. Supreme court rule in favor of Kiobel, that will set a precedent for other countries to sue an American organization for a H.R. violation even though it was committed in a third country, including the United States[31].

In International Law, one of the main requirements of any issue is the exhaustion of local remedies. Thus, before bringing a lawsuit to the U.S., Kiobel have to sue the company in Nigeria, the Netherlands and the United Kingdom[32]. Furthermore, responders claim that the fact that political asylum was given by the United States to the petitioners does not create a meaningful connection[33] to judge the case.

The last main argument of the defendants is that the ATS can be applied when judging an individual, but there is no legislation which allows the U.S. to punish an entirely foreign corporation with no connection to the United States for a cause of action that occurred outside the borders[34].

3. Conclusion

Over the last years, international corporations have been directly involved in H.R. violations, such as those committed in the Democratic Republic of Congo during the civil war by around 80 companies from developed countries[35] [36]. During the Nuremberg Trials the court said that “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”[37]. Nonetheless, I do think that corporations must not be excluded from an International Court jurisdiction. This argument is consistent with the recognition of corporate legal responsibility in the domestic legal systems[38] and with the post-World War II legal international framework- which has as its basic principle the protection of Human Rights[39]. The Human Rights Declaration does not make a distinction between Human Rights violations committed by individuals or organizations. Thus, they have to be equally protected whether the crime was committed by a company or by an individual.

In June 2012 Donald B. Verrilli, the United States Solicitor General, submitted a brief of the case to the U.S. Supreme Court supporting Royal Dutch Shell’s arguments[40]. During the last decades, the U.S. government has been commanding several hostile attacks against countries with the excuse that they were not threatening its citizens according with the H.R. principles.  But when it comes to decide whether or not the most deplorable H.R. crimes could be brought to a court in order to judge them in a fair U.S. tribunal, they are met with great resistance from Obama’s government. However, without taking into account the U.S.’s foreign policy incongruences, in my opinion, the United States Solicitor General is right. If the U.S. Supreme Court decides that it has jurisdiction over this case, then this would lead to other courts all over the world to start judging foreign companies according to their own H.R. interpretation. Furthermore, one company could be judged in several States for the same cause of action.

I believe that these types of lawsuits have to be brought to an international justice court, like the International Criminal Court.  However, an amendment of the Article 25 of the Rome Statute (“The Court shall have jurisdiction over natural persons pursuant to this Statute”) has to be done in order to allow the International Criminal Court to try a case of a violation of H.R. committed by a legal person. Until that point, if a country’s domestic court does not judge a company for a crime committed in its territory, the corporation will remain unpunished.

 


References:

 

[1] About Shell, Our people http://www.shell.com/global/aboutshell/who-we-are/our-people.html 28/01/2013

[2] Annual Investor’s handbook Royal Dutch Shell plc. financial and operational information, 2011. Page 89

[3] Annual Investor’s handbook Royal Dutch Shell plc. financial and operational information, 2011. Page 11

[4] Annual Investor’s handbook Royal Dutch Shell plc. financial and operational information, 2011. Page 2

[5] Blooberg, Royal Dutch Shell PLC http://www.bloomberg.com/quote/RDSA:LN  28/01/2013

[7] R. EDWARD FREEMAN Strategic Management: A Stakeholder Approach. Cambridge University Press. 1984 Page 25

[8] MILTON FREADMAN The Social Responsibility of Business is to Increase its Profits. The New York Times Magazine, September 13, 1970

[10] Annual Investor’s handbook Royal Dutch Shell plc. financial and operational information, 2011. Page 56

[11] Annual Investor’s handbook Royal Dutch Shell plc. financial and operational information, 2011. Page 17

[12] Annual Investor’s handbook Royal Dutch Shell plc. financial and operational information, 2011. Page 23

[13] Annual Investor’s handbook Royal Dutch Shell plc. financial and operational information, 2011. Page 14

[14] Annual Investor’s handbook Royal Dutch Shell plc. financial and operational information, 2011. Page 23

[15] United Nations Environment Programme (UNEP). Environmental Assessment of Ogoniland Executive Summary 2011. Page 1

[16] United Nations Environment Programme (UNEP). Environmental Assessment of Ogoniland Executive Summary 2011. Page 2

[17] United Nations Environment Programme (UNEP). Impacted marine ecosystem investigation in Gokhana reveals widespread contamination. Port Harcourt, 4 June 2010

[18] Shell YouTube Official Chanel. Mutiu Sunmonu comments on UNEP Ogoniland oil spil report Uploaded on the 4th of Aug 2011

http://www.youtube.com/watch?feature=player_embedded&v=0aHa4VbQBZ8

[19] United Nations Environment Programme (UNEP). Environmental Assessment of Ogoniland Executive Summary 2011. Page 5

[20] Petitioners’ Supplemental opening brief Case No. 10-1491 In the Supreme Court of The United States. Statements of the Case. Petition granted: 10/17/11. Page 25

[21] Petitioners’ Supplemental opening brief Case No. 10-1491 In the Supreme Court of The United States. Statements of the Case. Petition granted: 10/17/11. Page 25

[22] Supreme Court of the United States. Kiobel v Royal Dutch Petroleum CO. No. 10-1491. Transcription of the arguments. MR. HOFFMAN. Page 3 line 11-17

[23] ALSTON, PHILIP AND GOODMAN, RYAN AND J. STEINER, HENRY. International Human Rights in Context: Law, Politics, Morals. Chapter 13: Horizontal Interpenetration. a) Universal Jurisdiction.  Page 1173

[24] HOLTON-BASALDUA, CLAIRE AND CARUVANA, DEAN. Kiobel v. Royal Dutch Petroleum (10-1491). Cornell University Law School, Legal Information Institute. LII Supreme Court Bulleting. 2012

[25] Supreme Court of the United States. Kiobel v Royal Dutch Petroleum CO. No. 10-1491. Transcription of the arguments.

[26] Title 28 of the United States Code: Judiciary and Judicial Procedure. Alien’s action for tort 28 USC § 1350

[27] Petitioners’ Supplemental opening brief Case No. 10-1491 In the Supreme Court of The United States. Statements of the Case. Petition granted: 10/17/11. Page 28

[28] Petitioners’ Supplemental opening brief Case No. 10-1491 In the Supreme Court of The United States. Statements of the Case. Petition granted: 10/17/11. Page 28, 29 and 32.

[29]Supreme Court of the United States. Kiobel v Royal Dutch Petroleum CO. No. 10-1491. Transcription of the arguments. MR. HOFFMAN. Page 57 line 12-18

[30] United States Court of Appeals, Second Circuit. Filartiga v. Pena-Irala, 630 F.2d at 890

[31] Supreme Court of the United States. Kiobel v Royal Dutch Petroleum CO. No. 10-1491. Transcription of the arguments. MR. HOFFMAN. Page 6 line 4-9

[32] Supreme Court of the United States. Kiobel v Royal Dutch Petroleum CO. No. 10-1491. Transcription of the arguments. CHIEF JUSTICE ROBERTS. Page 55 line 19-20

[33] Supreme Court of the United States. Kiobel v Royal Dutch Petroleum CO. No. 10-1491. Transcription of the arguments. GENERAL VERRILLI. Page 41 line 9-11

[34] Supreme Court of the United States. Kiobel v Royal Dutch Petroleum CO. No. 10-1491. Transcription of the arguments. GENERAL VERRILLI. Page 51 line 6-16

[35] GOTZMANN, NORA. Legal Personality of the Corporation and International Criminal Law: Globalization, Corporate Human Rights Abuses and the Rome Statute. University of Queensland, Brisbane, Australia. Queensland Law Student Review. The journal of criminal law & Criminology. 98, No.3. Page 39

[36] BATWARE, BILLY. The role of Multinational corporations in the Democratic Republic of Congo. MA Peace and Conflict Studies. Academic Council on the United Nations System. Multinational corporations in the DRC. Pages 3 to 6 http://acuns.org/wp-content/uploads/2012/06/RoleofMultinationalCorporations.pdf

[37] The  United  States  of  America,  the  French  Republic,  the  United kingdom  of  Great Britain and  Northern  Ireland, and the Union of  Soviet Socialist Republics et. al v. Goering 1946/10/01 http://www.worldcourts.com/imt/eng/decisions/1946.10.01_United_States_v_Goering.pdf  Page 53

[38] GOTZMANN, NORA. Legal Personality of the Corporation and International Criminal Law: Globalization, Corporate Human Rights Abuses and the Rome Statute. University of Queensland, Brisbane, Australia. Queensland Law Student Review. The journal of criminal law & Criminology. 98, No.3. Page 38

[39] MANFRED NOWAK. Human Rights Handbook for parliamentarians. Office of the United Nations, High Commissioner for Human Rights. Nº 8, 2005. Chapter 1. Page 1 http://www.ipu.org/pdf/publications/hr_guide_en.pdf

[40] UNITED STATES SUPPLEMENTAL OPENING BRIEF Case No. 10-1491 In the Supreme Court of The United States. June 2012

Annex:

Map 1:

Annual Investor’s handbook Royal Dutch Shell PLC. FINANCIAL and OPERATIONAL information, 2011. Page 23

http://reports.shell.com/investors-handbook/2011/servicepages/downloads/files/entire_shell_ih11.pdf

Map 2:

Annual Investor’s handbook Royal Dutch Shell PLC. FINANCIAL and OPERATIONAL information, 2011. Page 15

http://reports.shell.com/investors-handbook/2011/servicepages/downloads/files/entire_shell_ih11.pdf

Map 3:

No Silence in Asylum. http://www.thecommonspace.org/2001/07/communities.php 07/02/2013

Annex 4:

Title 28 of the United States Code: Judiciary and Judicial Procedure. Alien’s action for tort 28 USC § 1350:

“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

Bibliography:

ALSON, PHILIP and GOODMAN, RYAN and J. STEINER, HENRY. International Human Rights in Context: Law, Politics, Morals. International Human Rights in Context: Law, Politics, Morals Law, Politics, Moral. 07/2000.

BATWARE, BILLY. The role of Multinational corporations in the Democratic Republic of Congo. MA Peace and Conflict Studies. Academic Council on the United Nations System. Multinational corporations in the DRC. 05/11/2011

PDF:       http://acuns.org/wp-content/uploads/2012/06/RoleofMultinationalCorporations.pdf

FREADMAN, MILTON. The Social Responsibility of Business is to Increase its Profits. The New York Times Magazine, September 13, 1970

PDF:       http://www.colorado.edu/studentgroups/libertarians/issues/friedman-soc-resp-business.html

FREEMAN, R. EDWARD. Strategic Management: A Stakeholder Approach. Cambridge University Press. 1984.

GOTZMANN, NORA. Legal Personality of the Corporation and International Criminal Law: Globalization, Corporate Human Rights Abuses and the Rome Statute. University of Queensland, Brisbane, Australia. Queensland Law Student Review. The journal of criminal law & Criminology. 98, No.3. 2008.

PDF:       http://www.law.uq.edu.au/articles/qlsr/Gotzmann-QLSR.pdf

HOLTON-BASALDUA, CLAIRE and CARUVANA, DEAN. Kiobel v. Royal Dutch Petroleum (10-1491). Cornell University Law School, Legal Information Institute. LII Supreme Court Bulleting. 2012.

http://www.law.cornell.edu/supct/cert/10-1491

LISA  A.  RICKARD. UNITED STATES COURT OF APPEAL, Second Circuit. Filartiga v. Pena-Irala, 630 F.2d 876. 2d Cir. 1980. FILARTIGA  V  PENA-IRALA:  A  NEW FORUM  FOR VIOLATIONS  OF INTERNATIONAL  HUMAN  RIGHTS

PDF:       http://www.wcl.american.edu/journal/lawrev/30/filartiga.pdf

MANFRED NOWAK. Human Rights Handbook for parliamentarians. Office of the United Nations, High Commissioner for Human Rights. Nº 8, 2005

PDF:       http://www.ipu.org/pdf/publications/hr_guide_en.pdf

NUREMBERG TRIALS The  United  States  of  America,  the  French  Republic,  the  United kingdom  of  Great Britain and  Northern  Ireland, and the Union of  Soviet Socialist Republics et. al v. Goering 1946/10/01

PDF:       http://werle.rewi.hu-berlin.de/IMTJudgment.pdf

PETITIONERS’ SUPPLEMENTAL OPENING BRIEF Case No. 10-1491 In the Supreme Court of The United States. Petition granted: 10/17/11.

PDF:http://iphumanrights.unica.it/sites/default/files/didattica/PETITIONERS%27%20SUPPLEMENTAL%20OPENING%20BRIEF.pdf

SHELL. Annual Investor’s handbook Royal Dutch Shell PLC. FINANCIAL and OPERATIONAL information, 2011

PDF:       http://reports.shell.com/investors-handbook/2011/servicepages/downloads/files/entire_shell_ih11.pdf

SUPREME COURT OF THE UNITED STATES. KIOBEL V ROYAL DUTCH PETROLEUM CO. No. 10-1491. Transcription of the arguments.01/10/2012.

PDF:       http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-1491rearg.pdf

UNEP. United Nations Environment Programme (UNEP). Environmental Assessment of Ogoniland Executive Summary 2011.

PDF:       http://postconflict.unep.ch/publications/OEA/UNEP_OEA.pdf

UNEP. United Nations Environment Programme (UNEP). Impacted marine ecosystem investigation in Gokhana reveals widespread contamination. Port Harcourt, 4 June 2010.

PDF:       http://s09.static-shell.com/content/dam/shell/static/nga/downloads/environment-society/others/gokhana-press-release.pdf

UNITED STATES. Title 28 of the United States Code: Judiciary and Judicial Procedure. Alien’s action for tort 28 USC § 1350.

http://www.law.cornell.edu/uscode/text/28

UNITED STATES SUPPLEMENTAL OPENING BRIEF Case No. 10-1491 In the Supreme Court of The United States. June 2012

PDF:http://iphumanrights.unica.it/sites/default/files/didattica/SUPPLEMENTAL%20BRIEF%20FOR%20THE%20UNITED%20STATES.pdf

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Esta entrada fue publicada el marzo 12, 2013 por en Derecho, Derecho Internacional, Derechos Humanos, Economía.
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