Corporations cannot be prosecuted for the international crimes that some commit, often through local subsidiaries. The only redress is to sue in the US under ATCA – the 1789 Alien Tort Claims Act – a unique statute which permits victims from anywhere in the world to sue any company or person for a wrong “committed in violation of the law of the nations”. This Act has become the only effective legal recourse against multinationals which incite or sponsor torture, genocide, murder or a breach of the Geneva Conventions. Earlier this year, the UK Government asked the US Supreme Court to stop the Act being used against corporations based outside the US, restricting the only law that makes multinationals accountable, allowing actions to be brought in the US by victims who cannot sue their wrongdoers anywhere else. The UK hired four counsel from a small and expensive Washington firm which specialises in anti-trust cases, not in human rights to file a brief on behalf of Britain and the Netherlands, urging that this law should be confined to US nationals.
The brief begins by asserting the UK Government’s “firm belief that corporations should not be able to act with impunity vis-à-vis human rights issues”, and then proceeds to argue that multinationals should have exactly that – impunity. Civil actions should be brought, it argues, in the country where the wrong occurred – despite the obvious fact that such wrongs are perpetrated in certain countries precisely because they have no effective local law. That is why the greatest deterrent to inhumane conduct by multinationals in many developing countries is the prospect of being sued in the US under ATCA. The UK argues that although all states have power to put on criminal trial any individual torturer or mass murderer, they cannot allow foreigners or corporations to be sued for damages in their local courts because that would be “a breach of international comity”. This is illogical because international law identifies a class of “crimes against humanity” so heinous they are unforgivable: if they can be the subject of criminal action in any state, it follows they must be capable of civil action for damages as well. If companies cannot be prosecuted for international crimes, all the more reason they should be sued for damages. The profits of their illegal conduct should be re-distributed to their victims.
Another argument is that “it has been the longstanding view of the UK Government that the most effective way to ensure that there is no impunity for human rights abuses” is “by seeking international consensus and co-operation through treaties rather than by recourse to private civil litigation in distant courts”. New York courts are not “distant” and “international consensus and co-operation” at the UN has brought only “the Global Compact”, a set of well-meaning but worthless words which some multinationals sign for PR purposes. The OECD guidelines are exactly that: guidelines without teeth, other than for gnashing. The UN’s “principles on business and human rights” has no teeth and no gums. The only language that would-be corporate criminals understand is the law – the only deterrent the prospect of being sued for many millions under ATCA.
The UK Government never answers these arguments. Instead, it complains that it’s too easy for poor people to sue rich corporations in the US, because of contingency fees (which give the poor access to the courts) and broad discovery rules (which enable the poor to discover the truth). It is very expensive, it complains, for defendant multinationals to obtain evidence from far-away places – although that is where they have chosen to do business.
Royal Dutch Shell itself has been accused of complicity with the Abacha regime in Nigeria which executed Ken Saro-Wiwa and others who protested against pipeline construction; other multinationals (Unocal in Burma, for example) have been accused of paying local militias to persecute and kill tribespeople who stand in the way of their profits. There are 150 cases of very serious human rights abuses by corporations currently filed in the US, and the UK wants most of them thrown out of court without a hearing.
A University of Essex report concluded that Shell is responsible for cleaning up the mess it has made of the Niger Delta. The findings are the results of nearly two years of research. The Niger Delta, an area roughly the size of Scotland, used to be a picturesque wetland. It is home to 31 million people, but over the past six decades, many of the villagers there have seen their livelihoods devastated by oil pollution. One of the most serious facts to come to light was the scale of contamination of drinking water, which had exposed communities to serious health risks.
Between 1976 and 2001 the United Nations Development Programme recorded 6,800 spills. Shell has tried to hide from the consequences of its actions. When confronted with the serious problems in its Niger Delta operations, it focused on defending its corporate image. It has consistently failed to own up to its responsibilities, hiding behind a complex legal structure, and operating to lower standards in the Niger Delta than elsewhere, because it thinks it can get away with it. Very rarely has it admitted liability. In Bodo, Ogoniland, in 2008. Shell's official investigation claims only 1,640 barrels of oil were spilt. But based on an independent assessment Amnesty International found that the total amount spilt is, at a bare minimum, some 103,000 barrels - a massive 63 times Shell's estimate - and could be as high as 311,000 barrels.
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