A Review of the Nigerian Energy Industry

US Supreme Court hears case against Shell over Ogoni killings

27 February 2012, Sweetcrude, HOUSTON – The US Supreme Court will hear arguments Tuesday on whether or not corporations can be held liable for complicity in human rights abuses outside the United States.

The specific case on dock concerns the torture and execution of activists in Nigeria and the alleged involvement of oil giant Shell.

The suit was filed by Esther Kiobel, the widow of one of the nine Ogoni indigenes executed by the military in 1995 for protesting Shell’s operations in the area.

The case – Esther Kiobel versus the Royal Dutch Shell Petroleum Company – was filed under the 1789 US law called the Alien Tort Statute, which allows US courts to determine cases brought up by foreigners for violations of international laws and U.S. treaties in other countries.

Also known as the Alien Tort Claims Act (ATCA), the Statute is a section of the US code that reads: “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.”

This statute has seen US courts hearing human rights cases brought by foreign citizens for conduct committed outside the US.

Similar cases filed by relatives of the slain Ogoni leader, Ken Saro-Wiwa, resulted in a 2009 $15.5 million settlement by Shell for the plaintiffs and Ogoni people.

The settlement was reached after 13 years of legal wrangling just before the scheduled start of a jury trial in a New York Federal Court.

On the side of the plaintiffs, Jennifer Green, a professor of law from the University of Minnesota, explains the importance of Tuesday’s hearing: “The issue before the court is whether a corporation is basically immune for human rights abuses and we think the most significant principle is that corporations that are doing business in the United States are bound by US law and US law includes the prohibition of human rights violations. So when a corporation is complicit in those violations, it can be held liable under the Alien Tort Statute.”

The 1789 statute remained almost completely unused until the 1980s, but since then it has come into use more frequently.

Shell, headquartered in the Netherlands, and registered in Britain, is the fifth largest company in the world.

Its officials vigorously deny any involvement in the Ogoni killings or in any human rights abuses, but said they acknowledged plaintiffs and others had suffered.

There was no immediate response by the company’s officials for a comment on Tuesday’s hearing of the Esther Kiobel case.

Lawyers for the oil company have previously said there should not be corporate liability in such cases because, if so, companies may become less inclined to work in countries where human rights abuses regularly take place.

The British, Dutch and German governments, as well as the US Chamber of Commerce and other multinational corporations have also supported Shell, saying what happened in Nigeria has no connection to the United States.

But, the administration of President Barack Obama and international human rights organisations have come out supporting the argument of corporate liability.

A US Supreme Court decision is expected by the end of June.

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