By Adam Robert Green: 17 October 2012
Three legal challenges against Shell for pollution charges in the Niger Delta could set precedents for how multinational companies are sued for environmental damages in developing countries. All three inquiries – in the UK, the Netherlands and the US – are being judged in countries other than the one in which damages are said to have occurred.
Shell’s trial in the Netherlands for oil pollution in the Niger Delta is a landmark; the first time a Dutch company has been brought before a home court to answer charges of environmental damage caused abroad. The UK High Court is also reviewing a case concerning the Anglo-Dutch company’s Nigeria operations.
This is also the first time a parent company has been sued over issues involving a subsidiary abroad over which, Shell argues, it had no involvement. The subsidiary in question, SPDC, is a wholly owned subsidiary of Shell, but was only the operator of a joint venture owned by Shell, the Nigerian National Petroleum Corporation, Total and Eni.
There are few precedents to this case. While UK oil trader Trafigura answered a case in the Netherlands for charges of dumping toxic waste in West Africa, the case focused on accusations that Trafigura first attempted to offload the waste in Amsterdam, not the impact of the waste in Cote d’Ivoire.
Why has the Shell case been taken to the Netherlands? “In Nigeria, hundreds of legal cases are brought by victims of oil pollution annually,” says FOE Netherlands in a statement. In 2010, around a thousand were pending against Shell. “Many of these cases, however, become stranded in the inefficient and corrupt Nigerian legal system. Furthermore, the verdicts are often not or inadequately carried out and the damages awarded – if they are paid – are far from sufficient”.
Evert Hassink, senior campaigner for Friends of the Earth, told This is Africa: “We have more confidence in the Dutch system”. Of criticisms about justice in Nigeria, Shell’s UK spokesperson Jonathan French said: “That’s an issue for the Nigerian legal system to answer”. Shell claims the pollution was caused by pipeline sabotage and oil theft.
The Shell trial is “a really important case,” says Jonathan Verschuuren, environmental law expert at the Netherlands’ Tilburg University. “If [the claimants] are successful, it is a big step in cases where Western multinationals commit acts that cause pollution. Up until now, you had to go through developing country’s courts”.
Mr Hassink agrees. “When it’s clear that this is a possibility, many others from Nigeria, or other foreign countries that have issues with Dutch or European companies, can take this route,” says Mr Hessink. But, he goes on, “I don’t expect hundreds of these cases to come about because it’s quite difficult for people from developing countries to take a case like this to Europe. It is only possible if people do that with the help of an NGO. We expect only the worst cases will come to European courts”. A verdict is expected on January 30th 2013.
But jurisdictional debates are unlikely to end there. The US Supreme Court is now considering arguments from lawyers representing the widow of one of nine Nigerian human rights activists hanged by the country’s military government in 1995, after protesting against oil companies, including Shell. Lawyers are calling on an obscure piece of legislation dating to 1789, the Alien Tort Claims Act, which says that if any human rights infringement occur anywhere in the world, US courts can deal with it.
“This dates back to the start of the US, when they thought that US courts should do justice to the world. It was a very aspirational idea,” says Professor Verschuuren. But it has long been considered a dead legislation, and discussions are now proceeding over formal questions of law.