Abayomi Azikiwe, editor of the Pan-African News Wire, speaking at the Dr. Charles H. Wright Museum of African American History on April 5, 2008. The event commemorated the 40th anniversary of the assassination of Dr. Martin Luther King, Jr.
Originally uploaded by Pan-African News Wire File Photos
Dissenting opinion describes ruling as a ‘blow to international law’
By Abayomi Azikiwe
Editor, Pan-African News Wire
A stunning 2nd Circuit United States Appeals Court decision in the Kiobel v. Royal Dutch Petroleum case ruled that multi-national corporations could not be held liable for human rights violations. The case stemmed from the actions of Shell in the Ngoni region of Nigeria where activists were falsely arrested, charged and summarily executed for organizing against the destruction of their communities by this oil company.
In a 2-to-1 decision in New York, Circuit Court Judge Jose Cabranes wrote on behalf of the majority that “The principle of individual liability for violations of international law has been limited to natural persons—not ‘juridical’ persons such as corporations—because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an ‘international crime’ has rested solely with the individual men and women who have perpetrated it.” (Kiobel v. Royal Dutch Petroleum Co., 0096-4800, majority opinion)
The federal appeals court said that the Alien Tort Statute, which has been in existence since 1789, does allow non-citizens to seek redress involving violations of international law, but that corporations were immune from liability even if their actions resulted in injury and death. Consequently, firms such as Royal Dutch Petroleum and Shell Transport and Trading cannot be held accountable for their crimes in collaboration with foreign governments that blatantly disregard the human rights of individuals and communities.
Even though there was one dissenting opinion by Circuit Judge Pierre Leval, the difference was not over whether the case filed by the Nigerian citizens should be dismissed, but that the law should also apply to corporations. The case filed in 2002 alleged that the Shell corporations assisted the military government in Nigeria, through subsidiaries operating inside the country, in carrying out gross human rights violations starting in 1993.
The human rights violations, according to the plantiffs, resulted in the suppression of mass protests among the Ogoni people against the policies of Shell. The extraction and export of oil from Nigeria is the largest source of foreign exchange for the country.
In the dissenting minority view by Judge Leval, he states that “The majority opinion deals a substantial blow to international law and its undertaking to project fundamental human rights. According to the rule my colleagues have created, one who earns profits by commercial exploitation of abuse of fundamental human rights can successfully shield those profits from victim’s claims for compensation simply by taking the precaution of conducting the heinous operation in corporate form.” (Kiobel v. Royal Dutch Petroleum Co., 0096-4800, dissenting opinion)
In the majority opinion it is noted that the United States Congress would have to pass new legislation to include corporations under the existing law. Legal analysts have responded to the ruling by pointing out that foreign governments are largely immune from lawsuits related to official policy and therefore the dismissal of the cases brought by Nigerian family members of human rights victims would leave virtually no recourse in the U.S. courts.
The case filed against Shell links the corporation to the execution of environmental activist Ken Saro-Wiwa and seven of his colleagues who were accused of a series of crimes in Nigeria in 1993 which resulted in their executions two years later. The environmental and social conditions created by the oil corporation in the Ogoni region has been a source of protests for many years.
Jonathan C. Drimmer, who is a partner at the Steptoe and Johnson LLP law firm and a lecturer at Georgetown University Law Center in Washington D.C., said in regard to the ruling by the 2nd Circuit that “This is going to alter the landscape of existing and contemplated cases. Assuming this ruling stands, and even while it remains in effect, there are going to be motions to dismiss Alien Tort Statute claims cases by corporations.” (Bloomberg News, September 17)
In the dissenting opinion by Judge Leval, he noted that the implications of the ruling for firms involved in crimes against humanity is “So long as they incorporate businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot’s political opponents, or engage in piracy—all without civil liability to victims.” (Kiobel v. Royal Dutch Petroleum Co., 0096-4800, dissenting opinion)
A Shell representative Bill Tanner said of the ruling that “We agree with the decision of the court.” The multi-national corporation has denied any involvement in human rights violations in the oil producing regions of Nigeria. (Bloomberg News, September 17)
Implications of Ruling for U.S.-Nigerian Relations
Nigeria for many years was the largest oil exporter from Africa into the United States. During 2009, it was reported that the Southern African nation of Angola had surpassed Nigeria in total exports to the U.S.
In recent months, Nigeria has embarked upon a re-structuring of its oil industry through the signing of a host of agreements with the People’s Republic of China that are valued at approximately $US50 billion. A Petroleum Industry Bill being debated in the Nigerian legislature has been a cause of concern for the western-based oil firms that have dominated the industry since 1956.
With so much at stake for the U.S. and other imperialist states in Nigeria, the government of the current interim President Goodluck Jonathan has been under tremendous pressure from the Obama administration. The State Department has sent representatives to the country to demand that the legislature pass a so-called “anti-terrorism” bill.
In addition, the country, which has the largest population of any other African state, will hold national elections in 2011. The U.S. has also attempted to set the terms governing the elections by questioning the composition of the national electoral commission inside the country.
This decision in the Kiobel v. Royal Dutch Petroleum case illustrates that the United States ruling class is seeking to absolve multi-national corporations from being held liable for acts of oppression, suppression and mass murder. The message emanating from such rulings is that the people in various states will have to seize control of such corporations in order to hold them accountable for their actions.
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