Text of the Ogoni Bill of Rights

Ogoniland Seal

Since this blog discussed the Ogoni oil struggle in-depth last year, it seemed prudent to post the text of the 1990 Ogoni Bill of Rights. It was well-known among the Ogonis when Ken Saro-Wiwa presented it to the Nigerian Government, and is often mentioned in conversations today.  Although it holds no legal weight, it retains immense symbolic power and Ogonis mentioned it frequently to me during my field work.  It called for greater autonomy in the form political control of Ogoni affairs by Ogoni people, greater federal representation, and control and use of a fair proportion of Ogoni economic resources, e.g. oil, for Ogoni development.

THE OGONI BILL OF RIGHTS PRESENTED TO THE GOVERNMENT AND PEOPLE OF NIGERIA,

WITH AN APPEAL TO THE INTERNATIONAL COMMUNITY by The Movement for the Survival of the Ogoni People (MOSOP), December, 1991

FOREWORD

In August 1990 the Chiefs and people of Ogoni in Nigeria met to sign one of  the most important declarations to come out of Africa in recent times: the Ogoni Bill of Rights By the Bill, the Ogoni people, while underlining their loyalty to the Nigerian nation, laid claim as a people to their independence which British colonialism had first violated and then handed over to some other Nigerian ethnic groups in October 1960.

The Bill of Rights presented to the Government and people of Nigeria called for political control of Ogoni affairs by Ogoni people, control and use of Ogoni economic resources for Ogoni development, adequate and direct representation as of right for Ogoni people in all Nigerian national institutions and the right to protect the Ogoni environment and ecology from further degradation.

These rights which should have reverted to the Ogoni after the termination of British rule, have been usurped in the past thirty years by the majority ethnic groups of Nigeria. They have not only been usurped; they have been misused and abused, turning Nigeria into a hell on earth for the Ogoni and similar ethnic minorities. Thirty years of Nigerian independence has done no more than outline the wretched quality of the leadership of the Nigerian majority ethnic groups and their cruelty as they have plunged the nation into ethnic strife, carnage, war, dictatorship, retrogression and the greatest waste of national resources ever witnessed in world history, turning generations of Nigerians, born and unborn into perpetual debtors.

The Ogoni Bill of Rights rejects once and for all this incompetent indigenous colonialism and calls for a new order in Nigeria, an order in which each ethnic group will have full responsibility for its own affairs and competition between the various peoples of Nigeria will be fair, thus ushering in a new era of peaceful co-existence, co-operation and national progress.

This is the path which has been chosen by the European tribes in the European Community, and by the Russians and their neighbours in the new Commonwealth which they are now fashioning. The Yugoslav tribes are being forced into similar ways. The lesson is that high fences make good neighbours. The Ogoni people are therefore in the mainstream of international thought.

It is well known that since the issuance of the Bill of Rights the Babangida administration has continued in the reactionary ways of all the military rulers of Nigeria from Ironsi through Gowon, Obasanjo and Buhari, seeking to turn Nigeria into a unitary state against the wishes of the Nigerian peoples and trends in world history. The split of the country into 30 states and 600 local governments in 1991 is a waste of resources, a veritable exercise in futility. It is a further attempt to transfer the seized resources of the Ogoni and other minority groups in the delta to the majority ethnic groups of the country. Without oil, these states and local governments will not exist for one day longer.

The import of the creation of these states is that the Ogoni and other minority groups will continue to be slaves of the majority ethnic groups. It is a gross abuse of human rights, a notable undemocratic act which flies in the face of modern history. The Ogoni people are right to reject it. While they are willing, for the reasons of Africa, to share their resources with other Africans, they insist that it must be on the principles of mutuality, of fairness, of equity and justice.

It has been assumed that because the Ogoni are few in number, they can be abused and denied their rights and that their environment can be destroyed without compunction. This has been the received wisdom of Nigeria according to military dictatorships. 1992 will put paid to this as the Ogoni put their case to the international community.

It is the intention of the Ogoni people to draw the attention of the American government and people to the fact that the oil which they buy from Nigeria is stolen property and that it is against American law to receive stolen goods.

The Ogoni people will be telling the European Community that their demand of the Yugoslav tribes that they respect human rights and democracy should also apply to Nigeria and that they should not wait for Nigeria to burst into ethnic strife and carnage before enjoining these civilized values on a Nigeria which depends on European investment, technology and credit.

The Ogoni people will be appealing to the British Government and the leaders of the Commonwealth who have urged on Commonwealth countries the virtues of good government, democracy, human rights and environmental protection that no government can be good if it imposes and operates laws which cheat a section of its peoples; that democracy does not exist where laws do not protect minorities and that the environment of the Ogoni and other delta minorities has been ruined beyond repair by multi-national oil companies under the protection of successive Nigerian administrations run by Nigerians of the majority ethnic groups.

The Ogoni people will make representation to the World Bank and the International Monetary Fund to the effect that giving loans and credit to the Nigerian Government on the understanding that oil money will be used to repay such loans is to encourage the Nigerian government to continue to dehumanise the Ogoni people and to devastate the environment and ecology of the Ogoni and other delta minorities among whom oil is found.

The Ogoni people will inform the United Nations and the Organisation of African Unity that the Nigerian Constitution and the actions of the power elite in Nigeria flagrantly violate the UN Declaration of Human Rights and the African Charter of Human and Peoples Rights; and that Nigeria in 1992 is no different from Apartheid South Africa. The Ogoni people will ask that Nigeria be duly chastised by both organizations for its inhuman actions and uncivilized behaviour. And if Nigeria persists in its perversity, then it should be expelled form both organizations.

These actions of the Ogoni people aim at the restoration of the inalienable rights of the Ogoni people as a distinct ethnic community in Nigeria, and at the establishment of a democratic Nigeria, a progressive multi-ethnic nation, a realistic society of equals, a just nation.

What the Ogoni demand for themselves, namely autonomy, they also ask for others throughout Nigeria and, indeed, the continent of Africa.

It is their hope that the international community will respond to these demands as they have done to similar demands in other parts of the world.

Ken Saro-Wiwa
Port Harcourt 24/12/91

STATEMENT BY DR. G.B. LETON, OON JP

President of the Movement for the Survival of Ogoni People (MOSOP)

1. The Ogoni case is of genocide being committed in the dying years of the twentieth century by multi-national oil companies under the supervision of the Government of the Federal Republic of Nigeria. It is that of a distinct ethnic minority in Nigeria who feel so suffocated by existing political, economic and social conditions in Nigeria that they have no choice but to cry out to the international community for salvation.

2. The Ogoni are a distinct ethnic group inhabiting the coastal plains terraces to the north- east of the Niger delta. On account of the hitherto very rich plateau soil, the people are mainly subsistence farmers but they also engage in migrant and nomadic fishing. They occupy an area of about 400 square miles and number an estimated 500,000. The population density of about 1,250 persons per square mile is among the highest in any rural area in the world and compares with the Nigerian national average of 300. The obvious problem is the pressure on land.

3. Petroleum was discovered in Ogoni at Bomu (Dere) in 1958; since then an estimated US 100 billion dollars worth of oil has been carted away from Ogoniland. In return for this, the Ogoni have no pipe-borne water, no electricity, very few roads, ill-equipped schools and hospitals and no industry whatsoever.

4. Ogoni has suffered and continues to suffer the degrading effects of oil exploration and exploitation: lands, streams and creeks are totally and continually polluted; the atmosphere is for ever charged with hydrocarbons, carbon monoxide and carbon dioxide; many villages experience the infernal quaking of the wrath of gas flares which have been burning 24 hours a day for 33 years; acid rain, oil spillages and blowouts are common. The result of such unchecked environmental pollution and degradation are that (i) The Ogoni can no longer farm successfully. Once the food basket of the eastern Niger Delta, the Ogoni now buy food (when they can afford it); (ii) Fish, once a common source of protein, is now rare. Owing to the constant and continual pollution of our streams and creeks, fish can only be caught in deeper and offshore waters for which the Ogoni are not equipped. (iii) All wildlife is dead. (iv) The ecology is changing fast. The mangrove tree, the aerial roots of which normally provide a natural and welcome habitat for many a sea food – crabs, periwinkles, mudskippers, cockles, mussels, shrimps and all – is now being gradually replaced by unknown and otherwise useless plams. (v) The health hazards generated by an atmosphere charged with hydrocarbon vapour, carbon monoxide and carbon dioxide are innumerable.

5. The once beautiful Ogoni countryside is no more a source of fresh air and green vegetation. All one sees and feels around is death. Death is everywhere in Ogoni. Ogoni languages are dying; Ogoni culture is dying; Ogoni people, Ogoni animals, Ogoni fishes are dying because of 33 years of hazardous environmental pollution and resulting food scarcity. In spite of an alarming density of population, American and British oil companies greedily encroach on more and more Ogoni land, depriving the peasants of their only means of livelihood. Mining rents and royalties for Ogoni oil are seized by the Federal Government of Nigeria which offers the Ogoni people NOTHING in return. Ogoni is being killed so that Nigeria can live.

6. Politically, the Ogoni are being ground to the dust under dictatorial decrees imposed by successive military regimes in Nigeria and laws smuggled by military dictatorships into the Nigerian Constitution which Constitution does not protect ethnic minorities and which today bears no resemblance whatsoever to the covenant entered into by the federating Nigerian ethnic groups at Independence.

7. Ethnicity is a fact of Nigerian life. Nigeria is a federation of ethnic groups. In practice, however, ethnocentrism is the order of the day in the country. The rights and resources of the Ogoni have been usurped by the majority ethnic groups and the Ogoni consigned to slavery and possible extinction. The Ogoni people reject the current political and administrative structuring of Nigeria imposed by the Military Government. They believe with Obafemi Awolowo that in a true federation, each ethnic gourp, no matter how small is entitled to the same treatment as any other ethnic group, no matter how large.

8. The Ogoni people therefore demand POLITICAL AUTONOMY as a distinct and separate unit of the Nigerian federation – autonomy which will guarantee them certain basic rights essential to their survival as a people. This demand has been spelt out in the Ogoni Bill of Rights. The Ogoni people stand by the Bill and now appeal to the international community, as a last resort, to save them from extinction.

(Sgd) Dr. G.B. Leton
President, Movement for the Survival of Ogoni People (MOSOP)

OGONI BILL OF RIGHTS PRESENTED TO THE GOVERNMENT AND PEOPLE OF NIGERIA

We, the people of Ogoni (Babbe, Gokana, Ken Khana, Nyo Khana and Tai) numbering about 500,000 being a separate and distinct ethnic nationality within the Federal Republic of Nigeria, wish to draw the attention of the Governments and people of Nigeria to the undermentioned facts:

1. That the Ogoni people, before the advent of British colonialism, were not conquered or colonized by any other ethnic group in present-day Nigeria.

2.  That British colonization forced us into the administrative division of Opobo from 1908 to 1947.

3.  That we protested against this forced union until the Ogoni Native Authority was created in 1947 and placed under the then Rivers Province.

4.  That in 1951 we were forcibly included in the Eastern Region of Nigeria where we suffered utter neglect.

5.  That we protested against this neglect by voting against the party in power in the Region in 1957, and against the forced union by testimony before the Willink Commission of Inquiry into Minority Fears in 1958.

6.  That this protest led to the inclusion of our nationality in Rivers State in 1967, which State consists of several ethnic nationalities with differing cultures, languages and aspirations.

7.  That oil was struck and produced in commercial quantities on our land in 1958 at K. Dere (Bomu oilfield).

8.  That oil has been mined on our land since 1958 to this day from the following oilfields: (i) Bomu (ii) Bodo West (iii) Tai (iv) Korokoro (v) Yorla (vi) Lubara Creek and (vii) Afam by Shell Petroleum Development Company (Nigeria) Limited.

9.  That in over 30 years of oil mining, the Ogoni nationality have provided the Nigerian nation with a total revenue estimated at over 40 billion Naira (N40 billion) or 30 billion dollars.

10. That in return for the above contribution, the Ogoni people have received NOTHING.

11. That today, the Ogoni people have:

(i)   No representation whatsoever in ALL institutions of the Federal Government of Nigeria.

(ii)  No pipe-borne water.

(iii) No electricity.

(iv) No job opportunities for the citizens in Federal, State, public sector or private sector companies.

(v) No social or economic project of the Federal Government.

12. That the Ogoni languages of Gokana and Khana are underdeveloped and are about to disappear, whereas other Nigerian languages are being forced on us.

13. That the Ethnic policies of successive Federal and State Governments are gradually pushing the Ogoni people to slavery and possible extinction.

14. That the Shell Petroleum Development Company of Nigeria Limited does not employ Ogoni people at a meaningful or any level at all, in defiance of the Federal government s regulations.

15. That the search for oil has caused severe land and food shortages in Ogoni one of the most densely populated areas of Africa (average: 1,500 per square mile; national average: 300 per square mile).

16. That neglectful environmental pollution laws and substandard inspection techniques of the Federal authorities have led to the complete degradation of the Ogoni environment, turning our homeland into an ecological disaster.

17. That the Ogoni people lack education, health and other social facilities.

18. That it is intolerable that one of the richest areas of Nigeria should wallow in abject poverty and destitution.

19. That successive Federal administrations have trampled on every minority right enshrined in the Nigerian Constitution to the detriment of the Ogoni and have by administrative structuring and other noxious acts transferred Ogoni wealth exclusively to other parts of the Republic.

20. That the Ogoni people wish to manage their own affairs.

NOW, therefore, while reaffirming our wish to remain a part of the Federal Republic of Nigeria, we make demand upon the Republic as follows:

That the Ogoni people be granted POLITICAL AUTONOMY to participate in the affairs of the Republic as a distinct and separate unit by whatever name called, provided that this Autonomy guarantees the following:

(i)   Political control of Ogoni affairs by Ogoni people.

(ii) The right to the control and use of a fair proportion of OGONI economic resources for Ogoni development.

(iii) Adequate and direct representation as of right in all Nigerian national institutions.

(iv) The use and development of Ogoni languages in all Nigerian territory.

(v)  The full development of Ogoni culture.

(vi) The right to religious freedom.

(vii) The right to protect the OGONI environment and ecology from further degradation.

We make the above demand in the knowledge that it does not deny any other ethnic group in the Nigerian Federation of their rights and that it can only conduce to peace, justice and fairplay and hence stability and progress in the Nigerian nation.

We make the demand in the belief that, as Obafemi Awolowo has written: In a true federation, each ethnic group no matter how small, is entitled to the same treatment as any other ethnic group, no matter how large.

We demand these rights as equal members of the Nigerian Federation who contribute and have contributed to the growth of the Federation and have a right to expect full returns from that Federation.

Adopted by general acclaim of the Ogoni people on the 26th day of August, 1990 at Bori, Rivers State and signed by: (see under). 

ADDENDUM TO THE OGONI BILL OF RIGHTS

We, the people of Ogoni, being a separate and distinct ethnic nationality within the Federal Republic of Nigeria, hereby state as follows:

(a) That on October 2, 1990 we addressed an Ogoni Bill of Rights to the President of the Federal Republic of Nigeria, General Ibrahim Babangida and members of the Armed Forces Ruling Council;

(b)  That after a one-year wait, the President has been unable to grant us the audience which we sought to have with him in order to discuss the legitimate demands contained in the Ogoni Bill of Rights;

(c) That our demands as outlined in the Ogoni Bill of Rights are legitimate, just and our inalienable right and in accord with civilized values worldwide;

(d) That the Government of the Federal Republic has continued, since October 2, 1990, to decree measures and implement policies which further marginalize the Ogoni people, denying us political autonomy, our rights to our resources, to the development of our languages and culture, to adequate representation as of right in all Nigerian national institutions and to the protection of our environment and ecology from further degradation;

(e) That we cannot sit idly by while we are, as a people, dehumanized and slowly exterminated and driven to extinction even as our rich resources are siphoned off to the exclusive comfort and improvement of other Nigerian communities, and the shareholders of multi-national oil companies.

Now therefore, while re-affirming our wish to remain a part of the Federal Republic of Nigeria, we hereby authorize the Movement for the Survival of Ogoni People (MOSOP) to make representation, for as long as these injustices continue, to the United Nations Commission on Human Rights, the Commonwealth Secretariat, the African Commission on Human and Peoples rights, the European Community and all international bodies which have a role to play in the preservation of our nationality, as follows:

1.  That the Government of the Federal Republic of Nigeria has, in utter disregard and contempt for human rights, since independence in 1960 till date, denied us our political rights to self-determination, economic rights to our resources, cultural rights to the development of our languages and culture, and social rights to education, health and adequate housing and to representation as of right in national institutions;

2.  That, in particular, the Federal Republic of Nigeria has refused to pay us oil royalties and mining rents amounting to an estimated 20 billion US dollars for petroleum mined from our soil for over thirty-three years;

3.  That the Constitution of the Federal Republic of Nigeria does not protect any of our rights whatsoever as an ethnic minority of 500,000 in a nation of about 100 million people and that the voting power and military might of the majority ethnic groups have been used remorselessly against us at every point in time;

4. That multi-national oil companies, namely Shell (Dutch/British) and Chevron (American) have severally and jointly devastated our environment and ecology, having flared gas in our villages for 33 years and caused oil spillages, blow-outs etc., and have dehumanised our people, denying them employment and those benefits which industrial organizations in Europe and America routinely contribute to their areas of operation;

5.  That the Nigerian elite (bureaucratic, military, industrial and academic) have turned a blind eye and a deaf ear to these acts of dehumanisation by the ethnic majority and have colluded with all the agents of destruction aimed at us;

6.  That we cannot seek restitution in the courts of law in Nigeria as the act of expropriation of our rights and resources has been institutionalised in the 1979 and 1989 Constitutions of the Federal Republic of Nigeria, which Constitutions were acts of a Constituent Assembly imposed by a military regime and do not , in any way, protect minority rights or bear resemblance to the tacit agreement made at Nigerian independence.

7.  That the Ogoni people abjure violence in their just struggle for their rights within the Federal Republic of Nigeria but will, through every lawful means, and for as long as is necessary, fight for social justice and equity for themselves and their progeny, and in particular demand political autonomy as a distinct and separate unit within the Nigerian nation with full right to (i) control Ogoni political affairs, (ii) use at least fifty per cent of Ogoni economic resources for Ogoni development; (iii) protect the Ogoni environment and ecology from further degradation; (iv) ensure the full restitution of the harm done to the health of our people by the flaring of gas, oil spillages, oil blow- outs, etc. by the following oil companies: Shell, Chevron and their Nigerian accomplices.

8.  That without the intervention of the international community the Government of the Federal Republic of Nigeria and the ethnic majority will continue these noxious policies until the Ogoni people are obliterated from the face of the earth.

Adopted by general acclaim of the Ogoni people on the 26th day of August 1991 at Bori, Rivers State of Nigeria.

Signed on behalf of the Ogoni people by:

BABBE:

HRH Mark Tsaro-Igbara, Gbenemene Babbe; HRH F.M.K. Noryaa, Menebua, Ka-Babbe; Chief M.A.M. Tornwe III, JP; Prince J.S. Sangha; Dr. Israel Kue; Chief A.M.N. Gua.

GOKANA:

HRH James P. Bagia, Gberesako XI, Gberemene Gokana; Chief E.N. Kobani, JP Tonsimene Gokana; Dr. B.N. Birabi; Chief Kemte Giadom, JP; Chief S.N. Orage.

KEN-KHANA:

HRH M.H.S. Eguru, Gbenemene Ken-Khana; HRH C.B.S. Nwikina, Emah III, Menebua Bom; Mr. M.C. Daanwii; Chief T.N. Nwieke; Mr. Ken Saro-wiwa; Mr. Simeon Idemyor.

NYO-KHANA:

HRH W.Z.P. Nzidee, Genemene Baa I of Nyo-Khana; Dr. G.B. Leton, OON, JP; Mr. Lekue Lah-Loolo; Mr. L.E. Mwara; Chief E.A. Apenu; Pastor M.P. Maeba. TAI: HRH B.A. Mballey, Gbenemene Tai; HRH G.N. Gininwa, Menebua Tua Tua; Chief J.S. Agbara; Chief D.J.K. Kumbe; Chief Fred Gwezia; HRH A. Demor-Kanni, Meneba Nonwa.

THE INTERNATIONAL COMMUNITY SHOULD:

1. Prevail on the American Government to stop buying Nigerian oil. It is stolen property.

2.   Prevail on Shell and Chevron to stop flaring gas in Ogoni.

3.  Prevail on the Federal Government of Nigeria to honour the rights of the Ogoni people to self-determination and AUTONOMY.

4.  Prevail on the Federal Government of Nigeria to pay all royalties and mining rents collected on oil mined from Ogoni since 1958.

5.  Prevail on the World Bank and the International Monetary Fund to stop giving loans to the Federal Government of Nigeria; all loans which depend for their repayment on the exploitation of Ogoni oil resources.

6.  Send urgent medical and other aid to the Ogoni people.

7.  Prevail on the United Nations, the Organisation of African Unity and the Commonwealth of Nations to either get the Federal Government of Nigeria to obey the rules and mores of these organisations, face sanctions or be expelled from them.

8.  Prevail on European and American Governments to stop giving aid and credit to the Federal Government of Nigeria as aid and credit only go to encourage the further dehumanisation of the Ogoni people.

9.  Prevail on European and American Governments to grant political refugee status to all Ogoni people seeking protection from the political persecution and genocide at the hands of the Federal Government of Nigeria.

10. Prevail on Shell and Chevron to pay compensation to the Ogoni People for ruining the Ogoni environment and the health of Ogoni men, women and children.

-This text was taken from the MOSOP website

The Kioble case is dismissed in the Supreme Court

In a unanimous ruling this past Wednesday, the U.S. Supreme Court dismissed the Kiobel case against Shell in Nigeria. The Kiobel case was filed by Esther Kiobel, the wife of a former activist, and alleges that Shell collaborated with the Abacha regime to violently suppress oil reform activities in the 1990’s.  The case brings claims for extrajudicial killing, torture, crimes against humanity, and prolonged arbitrary arrest and detention.

CorpsWatch argues that the ruling effectively blocks other lawsuits against foreign multinationals for human rights abuse that have occurred overseas from being brought in U.S. courts. Kiobel v. Royal Dutch Petroleum Co. (Shell) was brought under the Alien Tort Statute (ATS), a U.S. law dating back to 1789, originally designed to combat piracy on the high seas – that has been used during the last 30 years as a vehicle to bring international law violations cases to U.S. federal courts.

Lawyers began using ATS as a tool in human rights litigation in 1979, when the family of 17-year-old Joel Filartiga, who was tortured and killed in Paraguay, sued the Paraguayan police chief responsible. Filartiga v. Peña-Irala set a precedent for U.S. federal courts to punish non-U.S. citizens for acts committed outside the U.S. that violate international law or treaties to which the U.S. is a party. Almost 100 cases of international (often state-sanctioned) torture, rape and murder have been brought to U.S. federal courts to date under the ATS. The new ruling limits the law to U.S citizens and entities.

“Corporations are often present in many countries and it would reach too far to say mere corporate presence suffices,” wrote John Roberts, the chief justice of the Supreme Court, in the majority opinion. “There is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms.” Stephen Breyer, another of the nine judges, agreed with Roberts in the decision but left the door open for some lawsuits. “I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially  and adversely affects an important American national interest,” wrote Breyer in a separate legal opinion. “(T)hat includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.” Shell – in Breyer’s opinion – did not qualify as a U.S. entity. “The defendants are two foreign corporations. Their shares, like those of many foreign corporations, are traded on the New York Stock Exchange,” Breyer wrote. “Their only presence in the United States consists of an office in New York City (actually owned by a separate but affiliated company) that helps to explain their business to potential investors.”

Other such cases have been filed against Chiquita and Halliburton. Chiquita was sued by surviving victims of brutal massacres waged by right-wing paramilitary squads in Colombia. The paramilitary, who killed thousands of civilians during Colombia’s dirty war of the 1980s and 1990s, were on Chiquita’s payroll in the 1990s. Now-U.S. Attorney General Eric Holder defended Chiquita in the case and won a plea bargain for them of $25 million and five years of probation. Kellogg, Brown and Root, a former subsidiary of Halliburton, has also been sued under the ATS for allegedly trafficking 13 men from Nepal to Iraq against their will to work on U.S. military bases. The men, 12 of whom were killed, believed they were going to work at hotels in Jordan and elsewhere.

The Obama administration backed Shell last June after abruptly changing sides. In its submission the Justice Department urged the Supreme Court to dismiss the suit against Shell. The brief’s authors stated that the ATS was not appropriate for Kiobel or other lawsuits involving foreign corporations accused of collaborating in human rights abuses with a foreign government outside U.S. territory. U.S. courts “should not create a cause of action that challenges the actions of a foreign sovereign in its own territory, where the [sued party] is a foreign corporation of a third country that allegedly aided and abetted the foreign sovereign’s conduct,” the Justice Department wrote.

Many activists say that the decision will set back human rights causes. “This decision so severely limited a law that has for decades been a beacon of hope for victims of gross human rights violations,” says Elisa Massimino, president of Human Rights First, a New York based NGO. “Abusers may be rejoicing today, but this is a major setback for their victims, who often look to the United States for justice when all else fails.  Now what will they do?” However, other lawyers drew a measure of hope from the fact that the Supreme Court decision did not exclude all lawsuits against multinationals overseas in U.S. courts.

 

Democracy Now’s Video on Kiobel

Along with same-sex marriage and affirmative action, the Supreme Court will re-examine the issue of the Alien Tort Statute (ATS) as means for foreigners to sue American corporation in U.S. courts. The new 8-month session began this week and the Kiobel case remains on the docket, in which 12 Niger Deltan petitioners are suing Royal Dutch Shell Petroleum. This case has been discussed in previous posts here.

Corporate Fines and Settlements (BP, Shell, and Exxon)

Corporate Fines and Settlements (BP, Shell, and Exxon)

You might want to click on it to enlarge it, but this infogram demonstrates the largest corporate fines and settlements for the last seven years. I am most interested in the disparity among the oil companies. Exxon-Valdez paid $507 million in fines for its 1989 spill in Alaska (which has not been totally cleaned up yet). This is just 11% of its annual earnings. In contrast, the BP Gulf of Mexico spill cost that corporation 110% of its annual earnings, and rightly so. I would attribute this to heightened environmental sensitives regarding environmental damage in the U.S. However, unless I am not interpreting it correctly, the display also says that Shell paid 6% of annual earnings to settle a Niger Delta case in 2000. Perhaps we have different sources of data, but Shell’s earnings in 2006 were $25.36-25.44 billion and not just over 26 billion, but I suppose when analyzing such an absurd profit that doesn’t make much difference. My main point is that the well-known Wiwa settlement occurred in 2009, not 2000, and it was for $15.5 million, not $1.5 billion. This large discrepancy means the settlement was actually a mere .004% of annual earnings, not 6%. To put that in perspective, the Shell corporation earns about $2.5 million per hour, so they worked off the irreversible destruction of millions’ of farmers and fishermen’s land in just over 6 hours.

Kiobel v. Royal Dutch Petroleum

On Tuesday, the U.S. Supreme Court will hear a case coming from Ogoniland in the Niger Delta. Ogoniland is the birth place of Ken Saro-Wiwa, the epicenter of the anti-oil movement in the 1990s, and the most polluted area in Nigeria.  Nineteen plaintiffs have brought Kiobel v. Royal Dutch Petroleum under the 1789 Alien Tort Claims Act/Alien Tort Statute (ATS). It was originally intended to show the international community that the U.S. government would enforce and provide remedies for violations of international customary laws. Although ignored for almost 200 years, it was revived in that Filartiga v. Pena-Irala (1980) case that found a Paraguayan former Police Chief guilty of torturing a Paraguayan political dissident four years earlier in Asunción.  A non-American petitioner challenging a non-American respondent for a crime committed outside of the U.S., on the grounds that the crime was a violation of international law, won in an American court—quite a precedent.  Since then, more than 120 lawsuits have been filed in federal courts against 59 corporations for alleged wrongful acts in 60 foreign countries, almost all for “aiding and abetting” foreign governments. ATS has been utilized against multinational oil companies operating in Burma and Sudan. In a Nigerian case, jurors in Boweto v. Chevron (2008) found Chevron not guilty of knowingly assisting soldiers in human rights abuses committed in January of 1999. In Wiwa v. Royal Dutch Shell, Shell settled out of court for $15 million. Aside from some settlements, the ATS has not been particularly successful at bringing convictions against MNCs operating in the global south, but many human rights activists in the legal field still hold hope that it can.

For the Kiobel case, the question is less about whether Nigerians can bring a case against non-Americans for the torture and extrajudicial killings that occurred in their community, but whether or not they can bring the case against a corporation. Does international law recognize corporate responsibility? The 2nd Circuit of Appeals found that it does not, with the majority writing, “Corporate liability is not discernible” because “no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights.” In other words, the behemoth rise of the multi-national corporation has outpaced international law’s ability to regulate it.

Dutch Shell’s counsel will rely heavily on the argument that there is no precedence for corporate criminal liability under ATS. However, those who believe corporations can be held criminally liable under international customary law point to post-WWII jurisprudence. The Allies, under the authority of international law, dissolved several German corporations that had produced goods and invested money in support of Hitler’s war efforts.  The most famous was I.G. Farben, the manufacturer of poison gases, drugs, and oil used in the Holocaust. The Ogonis’ case will largely depend on whether their lawyers can successfully equate Nazi-supporting German corporations with contemporary oil companies operating in Nigeria.

Even if Dutch Shell is successful in this argument, it may not necessarily be the end of the road for the Ogonis. Law is an inherently discursive space that changes form little-by-little as its parameters and content are constantly renegotiated.  Although he wrote it in last year’s decision dismissing a case against Firestone for children’s rights violation in Liberia, Judge Posner wrote, “Suppose no corporation had ever been punished for violating customary international law. There is always a first time for litigation to enforce a norm; there has to be. There were no multinational prosecutions for aggression and crimes against humanity before the Nuremberg Tribunal was created.” Although law is inherently conservative, and gathers much of its power from being so, it is not immutable.

The Ogonis counsel could cite the 2010 Citizens United ruling that corporations’ personhood give them free speech protections. The Supreme Court found that the framers of the Constitution intended the First Amendment to apply to corporate persons. It requires impressive creativity to argue that corporations are “people” deserving of constitutional protections but not “people” liable for crimes against humanity prohibited by a statute passed in the decade following ratification of the Constitution, unless one emphasizes that Citizens United was unrelated to international law.

John Bellinger, former legal advisor to the State Department, supports curbing the ATS.  He finds that its original intent to allow foreign nationals to sue in federal courts for violations of international law was only to reduce diplomatic frictions for the nascent United States. However, since international law does not allow courts of one country to exercise jurisdiction in civil cases over offenses in other countries, foreign governments have filed more than 20 protests with the State Department and federal courts in Alien Tort Statute suits over the past decade. Paradoxically, its modern application is creating the very diplomatic tensions that it was meant to prevent. For Bellinger, the major concern over ATS is reciprocity. The U.S. government would certainly be opposed to foreign courts hearing cases against American corporations for violations of international law. Reuters points out that such litigation is time-consuming, expensive, and complicated.

My prediction: The United States, well-known for its exceptionalism, is often behind other developed countries in marrying itself to international human rights law. It waited almost thirty years to ratify the Convention on the Elimination of All Forms of Racial Discrimination.  It is the only developed nation left that has not ratified the Convention on the Rights of the Child not the Convention on the Elimination of All Forms of Discrimination Against Women, and it will probably never ratify the Covenant on Economic, Social, and Cultural Rights. Even under intense international pressure, the U.S. privileges its sovereignty over international human rights law, which means there is very little chance that an American court would indulge an international law-based ATS claim against a corporation without even an international tribunal doing so first.