Sara Seck on "Kiobel and the E-word: Reflections on Transnational Environmental Responsibility in an Interconnected World"

Sara Seck is an Associate Professor at the University of Western Ontario. Professor Seck's research interests include corporate social responsibility, international environmental, human rights, and sustainable development law, climate change, and indigenous law. She is particularly interested in international and transnational legal theory, notably the relationship between Third World Approaches to International Law (TWAIL) and international legal process theories that are informed by constructivist understandings of international relations.

Professor Seck has recently been considering ramifications of Kiobel v Royal Dutch Petroleum 569 U. S. ____ (2013) and the ways in which, for me, sheds light on a reality of the structure of international human rights and business that may be belied by the torrent of lofty language churning out of elite state and non-state actors. Professor Seck's essay, "Kiobel and the E-word: Reflections on Transnational Environmental Responsibility in an Interconnected World," follows.

 (Pix Reuters from Armin Rosen, "How Suing Shell Could Backfire on Human Rights Activists," The Atlantic, Nov. 17,  2011 "The U.S. court system is an imperfect recourse for human rights advocates, but if the Supreme Court affirms the ability to sue multinational corporations, it could become an important one. . . . If the Supreme Court sides against Kiobel, the scope of the Alien Tort Statute could severely narrow. " Id.)

____________

Kiobel and the E-word: Reflections on Transnational Environmental Responsibility in an Interconnected World

(c) Sara L Seck *


Introduction

This comment will offer reflections on Kiobel [1] as a case about transnational environmental responsibility. At heart, Kiobel is grounded in local concerns over environmental harm associated with transnational resource extraction, which, following local community resistance, led to egregious human rights violations – including death – of local environmental activists. As such, it is no different from numerous such conflicts all over the world, where host states, eager for the returns of foreign direct investment and following the mantra of sustainable development, seek to develop their own resources in accordance with host state environmental and developmental policies.[2] In so doing, governments and corporations sometimes find themselves confronted by communities who, while engaging in local resistance, share the common language of the global environmental justice movement through “manifestations of popular and indigenous environmentalism.”[3] However, the environmental concerns of local communities remain beyond the reach of international law, absent an element of global common concern, for intra-territorial environmental harms fall squarely within the sovereign jurisdiction of host states.[4] Should host states choose to listen to local community concerns and shut down corporate operations, they find themselves subject to investor-state arbitration clauses that privilege the rights of investors over the responsibilities of host states to govern in the public interest.[5]

It is in this broader context that the Kiobel decision must be understood.

History of SPDC in Nigeria

Shell’s exploration of Nigeria, then a British colony, began in 1937, and the first shipment of oil from Nigeria was in 1958.[6] Today, the Nigerian government owns a 55% share in the operations, while Shell Petroleum Development Company of Nigeria, Ltd. (SPDC) holds 30%.[7] SPDC, incorporated in Nigeria, is a joint subsidiary of Royal Dutch Petroleum Company and Shell Transport and Trading Company, holding companies incorporated in the Netherlands and England respectively. All three were defendants in the Kiobel litigation.[8]

Although obviously profitable, SPDC’s operations in Nigeria faced challenges including rampant corruption and military dictatorships.[9] The mine site is located in the ecologically sensitive area of the Niger Delta, one of the worlds largest wetlands, covering 20 000 square kilometers.[10] Given the value of the rich oil deposits, environmental protection took a back seat, and the Nigerian state was quick to implement measures to ensure that land needed for oil exploitation could be easily controlled. This wreaked havoc on people living in the area as the Ogoni relied heavily on agriculture and fishing, activities they could not sustain on damaged land.[11] In response to the environmental destruction, local communities strongly resisted the SPDC’s presence. In 1990, the Movement for the Survival of the Ogoni People (MOSOP) was formed, led by environmental activist Ken Sara Wiwi.[12]

The Ogoni took a variety of actions to raise the profile of their cause including drafting an Ogani Bill of Rights, which called for control over their own affairs, protection of the environment and ecology and adequate representation.[13] On occasion, the Ogoni disturbed oil operations, under the direction of either MOSOP or the more radical National Youth Council of Ogoni People (NYCOP) and the Ethnic Minorities Rights Organizations of Africa (EMIROAF).[14] SPDC then used claims of sabotage as a cloak to avoid compensation payments for spills to local communities.[15]

It is within this context that the events of Kiobel occurred. Given the increased level of protest and tension, there was a heightened level of military involvement.[16] In 1993, four conservative Ogani leaders were brutally massacred by a mob under disputed circumstances.[17] Eight community leaders were arrested for the incitement of violence, including MOSOP founder Ken Saro-Wiwa, and subsequently tortured, tried, then executed.[18] Instead of quelling discontent, this only incited more protest, with a continued military clampdown resulting in more injuries and deaths. Information came out about SPDC’s involvement in these clampdowns, including allegations of support for military operations.[19]

Attempts to Seek Environmental and Human Rights Remedy

In 1996, two NGOs, the Social and Economic Rights Action Centre (SERAC) and the Centre for Economic and Social Rights (CESR), filed a complaint with the African Commission on Human and Peoples’ Rights.[20] The complaint alleged that the Nigerian military government had been directly involved in the damaging and irresponsible oil development practices in the Ogoni region.[21] Highlighted were the widespread contamination of soil, water and air, the destruction of homes, the burning of crops and the killing of farm animals, all asserted as violations of the Ogoni peoples rights to health, a healthy environment, housing and food.[22] In 2001, the Commission reached a decision in which it found Nigeria in violation of the African Charter.[23] The Commission appealed to the government to take action to ensure the protection of environment health and livelihood of the people of Ogoniland by stopping attacks on civilians, enacting laws to address environmental and social concerns and investigating issues of human rights violations.[24]

Also in 1996, family members of Ken Saro Wiwa and other residents of the Ogoni region brought three claims under the Alien Tort Statute (ATS) and the Torture Victims Protection Act against many of the same corporate defendants as in Kiobel.[25] The allegations were that Shell acted in concert with the Nigerian government’s conduct, including torture, cruel inhuman and degrading treatment, crimes against humanity, and summary execution.[26] In 2009, after years of preliminary litigation and on the eve of trial, the case settled for $15.5 million without admission of wrongdoing by the defendants.[27]

In 2002, the plaintiffs in Kiobel, all members of MOSOP, filed a claim under the ATS alleging that the defendants aided and abetted the Nigerian government in perpetrating numerous crimes in violation of international law.[28] After many years of preliminary litigation, this case ended with the 2013 USSC decision in Kiobel.

In 2008, a group of Nigerian farmers and the environment group Milieudefensie brought five claims against Royal Dutch Shell and SPDC before Dutch courts for environmental damage to fishponds and farmlands caused by leaking pipelines.[29] Of the five claims, four were dismissed as the court ruled that the oil spills were not caused by defective maintenance by Shell, but by sabotage from third parties. In the one case where liability was established, the district court held that SPDC (and not Royal Dutch Shell) had violated a duty of care, and could be held liable under Nigerian law under the tort of negligence.[30]

Beyond litigation, in 2011 the United Nations Environment Programme (UNEP) released a report on the environmental damage in Ogoniland.[31] The report found that as a result of oil spills and oil well fires, there is extensive contamination of the soil and groundwater,[32] and significant damage to vegetation, aquatic habitats and public health.[33] The report makes recommendations for the community, the government and SPDC on how to address the pressing environmental issues.[34] It concludes that it is possible to restore the area and the livelihoods of future Ogoni generations, but the time to do so is limited, and public health concerns must be addressed and a clean up commenced immediately.[35] Curiously, perhaps, one of the recommendations is to make Ogoniland a Rasmar site, as set out in the 1971 Rasmar Convention on Wetlands, an intergovernmental treaty providing a framework for international cooperation for the sustainable use of wetlands and their resources.[36]

Kiobel

In Kiobel, the USSC considered “under what circumstances courts may recognize a cause of action under the Alien Tort Statute for violations of the law of nations occurring within the territory of a sovereign other than the United States.”[37] The allegations against the defendant corporations in Kiobel were framed as “aiding and abetting the Nigerian Government in committing” a wide range of egregious human rights violations, none of which invoked environmental harm.[38] The petitioners, Nigerians at the time, are legal residents of the United States having been granted political asylum.[39]

The majority opinion, delivered by Chief Justice Roberts, held that “the presumption against extraterritoriality applies to claims under the ATS, and [ ] nothing in the statute rebuts that presumption.”[40] On the facts of the case, “all relevant conduct took place outside the United States.” Moreover, “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”[41] As corporations “are often present in many countries, [ ] it would reach too far to say that mere corporate presence suffices.”[42] Even Justice Breyer, who disagreed with the reasoning of the majority, agreed with the conclusion, as “the parties and relevant conduct lack sufficient ties to the United States for the ATS to provide jurisdiction.”[43]

Transnational Corporate Responsibility and the “E-word”

A contextual understanding of Kiobel as a case about transnational environmental responsibility illustrates that, when resistance by ecologically concerned communities leads to violent repression of environmental defenders, international law is able to take note of these harms as human rights violations. If sufficiently egregious, (but only if), human rights violations might be considered violations of jus cogens norms and thus serious enough that, at least prior to Kiobel, they might be of such universal concern as to merit a cause of action under the ATS.[44] One response to the problematic nature of violence arising from resource extraction has been the promotion of the Voluntary Principles on Security and Human Rights, a multi-stakeholder corporate social responsibility initiative designed to ensure that when extractive companies hire security or seek host state assistance to protect their installations, fewer human rights are violated.[45] Meanwhile, the original environmental concerns of local communities as matters of intra-territorial harm remain beyond the reach of public international law, squarely within the jurisdiction of the sovereign host state to regulate – or not – as it sees fit, subject to possible soft sanction by human rights bodies.

Or so it seems.

The tides are changing. The United Nations Human Rights Council’s recent appointment of the Expert on Environment and Human Rights has shown an appreciation that the line between environmental and human rights harms is not so simply drawn.[46] Environmental human rights are increasingly incorporated into constitutions around the world, although not that of the United States, providing the hope of a domestic avenue for resistance by ecologically concerned local communities,[47] at least until snarled by the arbitral clauses of investment agreements.[48] Beyond this, the 2011 UN Guiding Principles on Business and Human Rights,[49] combined with the UN Declaration on the Rights of Indigenous Peoples,[50] and revisions to key international frameworks like the International Finance Corporation’s Performance Standards on Environmental and Social Sustainability[51] suggest that there is an increasing international normative commitment to the responsibility of business in the prevention of environmental human rights harms associated with extractive industries. Given the fiasco that is the Chevron litigation, it is not clear that an equal commitment has developed to remedy. Yet, the recent decision of the Dutch court applying Nigerian law to SPDC, and a new action in UK courts,[52] point to signs that maybe – just maybe - the doors of transnational litigation will in time open sufficiently wide to address the original environmental concerns of the Ogoni people and other environmentally-affected communities around the world.

What does this tell us about Kiobel? Inextricably intertwined with the imperialist history of international law has been an unstated understanding that ecologically concerned local communities are the “uncivilized other” who stand in the way of sustainable development as embraced by the developmental state.[53] The civilized/uncivilized distinction of early international law has given way to other distinctions that permeate international law and governance. Another binary of which international lawyers should be cautious is that created by extraterritoriality, the “e-word”: the presumption against extraterritoriality, which triumphed in the majority’s decision in Kiobel, implicitly distinguishes between “us” (territorial) and “them” (extraterritorial). The “e-word” partners with the “s-word” – sovereignty – a founding concept of international law that, as Antony Anghie has powerfully documented, was formed as a result of the colonial encounter.[54] While it is no surprise that the majority of the USSC would invoke the “e-word” to justify a refusal to hear on the merits a case that at heart is about transnational environmental responsibility, international lawyers should be wary of a word that is so closely linked with the “civilizing mission” of international law.[55] Justice Breyers’ concurring judgment invokes an understanding of extrajurisdictionality (without using the word),[56] yet it is arguably little better from the perspective of the victims of oil exploitation in Nigeria – why should deference be paid to the courts and legislatures of other imperial states when Third World plaintiffs, residing in the United States, seek justice at home?

Rather than obsessing about the bounded nature of state sovereignty and hiding behind self-interested concerns to avoid interference in the internal affairs of sovereign competitors, local communities who suffer from transnational environmental harms understand the reality of global interconnectedness, both ecological and economic. Permanent sovereignty over natural resources, sustainable development and the “e-word” are concepts invoked to solidify the ability of host states in both north and south to exploit resources ostensibly for the good of their peoples. Yet, if we are truly concerned with sovereignty of the people, we must as a global community encourage if not require our courts to provide a space for local communities who wish to both prevent and remedy intra-territorial environmental harm with a chance to voice their concerns. This is something that the ATS was clearly not designed to do. Kiobel, due to its problematic invocation of the “e-word”, encourages us to pretend we live in a world built around impermeable sovereign borders, thus inhibiting our ability to take responsibly across borders as members of a global community sharing one earth.

NOTES:

[*] Faculty of Law, Western University, Canada: sseckATuwo.ca.  Thanks to my research assistant Claire Lehan.

[1] Kiobel v Royal Dutch Petroleum 569 U. S. ____ (2013).

[2] U.N. Conference on Environment and Development, June 3-14, 1992, Rio Declaration on Environment and Development, 8, U.N. Doc. A/CONF.151/26 (Aug. 12, 1992) (Principle 2).

[3] Joan Martinez-Alier, Local Referendums on Mining, (January 23rd 2013), http://www.ejolt.org/2013/01/local-referendums-on-mining-the-kanaris-in-peru/ See generally Joan Martinez-Alier, The Environmentalism of the Poor (2002).

[4] Sara L Seck, Transnational Business and Environmental Harm: A TWAIL Analysis of Home State Obligations, 3 Trade, Law and Dev, 164 (2011), at 182-183.

[5] Kyla Tienhaara, The Expropriation of Environmental Governance: Protecting Foreign Investors at the Expense of Public Policy (2008).

[6] Richard Boele, Heike Fabig & David Wheeler, Shell, Nigeria and the Ogoni. A Study in Unsustainable Development: The Story of Shell, Nigeria and the Ogoni People – Environment, Economy, Relationships: Conflict and Prospects for Resolution, 9 Sust. Dev. 74 (2001), at 75.

[7] Shell Interests in Nigeria, http://s04.static-shell.com/content/dam/shell-new/local/country/nga/downloads/pdf/2013bnotes/nigeria_interests.pdf.

[8] Kiobel, supra note 1.

[9] Boele et al., supra note 6 at 75.

[10] Id. at 76.

[11] Id.

[12] Jedrzej George Frynas, Political Instability and Business: Focus on Shell in Nigeria, 19 Third World Quarterly 457 (1998) at 463.

[13] Ogani Bill of Rights, Presented to the Government and People of Nigeria (December, 1991), http://www.mosop.org/Ogoni_Bill_of_Rights_1990.pdf.

[14] Frynas, supra note 12, at 463.

[15] Id. at 465.

[16] Richard Boele, Report of the UNPO Mission to Investigate the Situation of the Ogoni of Nigeria, February 17-26, 1995, (1995) at 20-24.

[17] Id. at 24.

[18] Id. at 24-29; Boele at el., supra note 6 at 81.

[19] Br. of Pet’s – Appellant at 4, Esther Kiobel et al v Royal Dutch Petroleum Co et al, No. 10-1491 (2nd circuit, June 6, 2012).

[20] Fons Coomans, The Ogoni Case Before the African Commission on Human and Peoples’ Rights, 52 ICLQ 749, (2003).

[21] Id. at 749.

[22] Id.

[23] Coomans, supra, note 20 at 750; African Commission on Human and Peoples Rights, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR)/Nigeria, 155 (October 27 2001), at 9.

[24] Id.

[25] Complaint, Wiwa et al v Royal Dutch Petroleum Company et al, (Nov 1996), http://ccrjustice.org/files/11.8.96%20%20Wiwa%20Complaint.pdf; Centre for Constitutional Rights: Wiwa et al, v Royal Dutch Petroleum et al, http://ccrjustice.org/ourcases/current-cases/wiwa-v.-royal-dutch-petroleum

[26] Ingrid Wuerth, Wiw v Shell: the $15.5 Million Settlement, 14 ASIL Insight (2009)

[27] Statement of the Plaintiffs in Wiwa v Royal Dutch/Shell, Wiwa v Anderson and Wiwa v SPDC (June 8 2009) as cited in Wuerth, Id. Of this, $4.5 million was to be put in trust for the Ogoni people.

[28] Kiobel v Royal Dutch Petroleum Co, 621 F. 3d 111.

[29] Legal Case against Shell, http://www.milieudefensie.nl/english/shell/oil-leaks/courtcase/legal-case-against-shell.

[30] Milieudefense et al v Shell et al, HA ZA 09-1580 (2013) at 28.

[31]Environmental Assessment of Ogoniland - Executive Summary (2011), at 1, http://www.zaragoza.es/contenidos/medioambiente/onu/issue06/1130-eng-sum.pdf

[32] Id. at 3.

[33] Id. at 6.

[34] Id. at 7-11.

[35] Id. at 11.

[36] Convention on Wetlands of International Importance especially as Waterfowl Habitat. Ramsar (Iran), 2 February 1971. UN Treaty Series No. 14583. As amended by the Paris Protocol, 3 December 1982, and Regina Amendments, 28 May 1987. Nigeria became a party to Ramsar in 2001, and two areas within the Niger Delta are listed as wetlands of international importance. See The Annotated List: Nigeria http://www.ramsar.org/cda/en/ramsar-documents-list-anno-nigeria/main/ramsar/1-31-218^16114_4000_0__.

[37] Kiobel v Royal Dutch Petroleum 569 U. S. ____ (2013) [at 1] (emphasis added)

[38] Id. at 2.

[39] Id.

[40] Id. at 13.

[41] Id at 14.

[42] Id.

[43] Id [at 2 of Breyer concurring judgment].

[44] Seck, supra note 4 at 198.

[45] Voluntary Principles on Security and Human Rights, (2011), http://www.voluntaryprinciples.org/files/voluntary_principles_english.pdf.

[46] Human Rights Council, Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John H Knox, A/HCR/22/43 (December 24, 2012) (prepared by John Knox).

[47] David R Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment (UBC Press, 2012).

[48] Tienhaara, supra note 5.

[49] Human Rights Council, Guiding Principles on Business and Human Rights, HR/PB/11/04 (2011), http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.

[50] United Nations, United Nations Declaration on the Rights of Indigenous Peoples (March, 2008), http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.

[51] IFC Performance Standards on Environmental and Social Sustainability (January 1, 2012), http://www1.ifc.org/wps/wcm/connect/c8f524004a73daeca09afdf998895a12/IFC_Performance_Standards.pdf?MOD=AJPERES.

[52] Leigh Day, 11,000 Nigerians Sue Shell In London Courts, (March 2012), http://www.leighday.co.uk/News/2012/March-2012/11,000-Nigerians-sue-Shell-in-London-Courts

[53] Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2005); see also Sara L Seck, Unilateral Home State Regulation: Imperialism or Tool for Subaltern Resistance, 46 Osgoode Hall L. Jour. 565 (2008), at 580-583.

[54] Anghie, Id. at 6.

[55] Id. at 195. .

[56] John H Knox, Kiobel Insta-Symposium : A Presumption Against Extrajurisdictionality Resurfaces, April 17, 2012, http://opiniojuris.org/2013/04/17/kiobel-insta-symposium-a-presumption-against-extrajurisdictionality-resurfaces/.