Shell Shocked

by Lloyd G. Barnett

On June 9, 2009 the Shell conglomerate comprising Royal Dutch Petroleum Company and Shell Transport and Trading Company agreed to settle a Court case in New York, by paying a total of US$15.5 million dollars.  The complaints charged Shell with conspiracy with the military junta which ruled Nigeria in the 1990s to commit crimes against humanity, including summary executions, torture, inhuman and degrading treatment and arbitrary arrest and detention.

The background to the suits comprised the Shell drilling of oil in the Niger Delta Region of Nigeria which began in 1950.  Frequent oil spills resulted in vast deforestation and destroyed the subsistence farming and fishing based livelihood of the Ogoni People.  By the 1990’s the extent of the devastation of the area was appalling.  This led to protests by the inhabitants, particularly the Ogini’s ethnic group which historically inhabited the area.  Ken Saro-Wiwa, the son of an Ogoni Chieftain, author, television producer and environmental and human rights activist was one of the earliest members of the Movement for the Survival of the Ogoni People (MOSOP).  The MOSOP in the early 1990s arranged peaceful demonstrations against Shell in protest against the degradation of Ogoni land.  In 1993 the Nigerian Government arranged a military occupation of the Ogoni land.

In 1995 Saro-Wiwa and 8 other Human  Rights and Environmental activists (the Ogoni 9) were executed by the military dictatorship of General Sani Abacha, arguably as a result of the outspokenness of their criticism of the Nigerian Government’s reluctance to hold the people’s best interest at heart in their dealings with foreign oil companies.  One month after the execution of the Ogoni 9 Shell signed an agreement to invest $4 billion in a liquefied natural gas project in Nigeria.

The suits were filed shortly after the executions.  Research, investigations and the discovery of documents unearthed powerful evidence of Shell’s complicity in the suppression of the protesters.  These revelations increased the pressure on Shell and led to widespread criticism on an international scale.

Although that particular litigation ended with a settlement and Shell continues to deny liability, it is a landmark case for a number of important reasons.  The suit itself appealed to both national and international law.  The special tribunals which the Government established and the abuses of the protestors were attacked on the basis that they violated customary international law, the Universal Declaration of Human Rights, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment as well as the common law of the United States in relation to unlawful killings and other torts.  It demonstrated a great potential for international and national laws to be invoked in the protection of human rights.

The Claimants invoked the Alien Tort Claims Act which grants jurisdiction to US Federal Courts over “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”.

These cases also demonstrate that national Governments can provide legal mechanisms which will serve to protect their citizens against human rights abuses by powerful transnational corporations which operate on a global scale sometimes with the impunity provided by the governments of the states affected.  They also provide encouragement to environmental activists whose legitimate human rights to protest and demonstrate have frequently been suppressed.

More recently in July 2011 a Nigerian Federal Court gave judgment against Shell after 10 years of litigation and ordered Shell to pay US$100 million damages to Ejama – Ebubu community for a 1970 oil spill.  More than 500 other civil suits have been filed and are pending in Nigerian Courts against Shell in Nigeria.  There have also been class actions against Shell in England and inquiries by Dutch and Nigerian legislatures.  There have been recurrent oil spills which continue to cause widespread human rights abuse.  In 2006, the Niger Delta Natural Resource Damage Assessment and Restoration Project (an independent team of scientists from Nigeria, the U.K. and the U.S.) characterized the Niger Delta as “one of the world’s most severely petroleum-impacted ecosystems”.  These violations have attracted the ire and criticism of a large number of environmentalists and human rights organizations.  There is now a powerful movement which is insisting that Shell should clean up its act and be brought to account.

There is no doubt that civil society’s influence and the advocacy of the media, which conducted research into the background helped to focus a search light on Shell’s actions and have increased the moral and legal pressures  on the conglomerate.

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