Kiobel Case a Reminder of Remedy Gaps Still to be Bridged

Commentary, 28 February 2012

By Haley St. Dennis, Head of Communications, IHRB

This week, the United States Supreme Court is at the centre of the global business and human rights agenda.

This week, the United States Supreme Court is at the centre of the global business and human rights agenda.

The Court is hearing oral arguments in Kiobel v Royal Dutch Petroleum Co., a highly anticipated case expected to determine whether claimants from anywhere in the world can continue to bring civil suits in U.S. courts against corporate defendants for alleged egregious violations of human rights under international law, using the Alien Tort Statute (ATS), also known as the Alien Tort Claims Act (ATCA).

A decision denying ATCA jurisdiction over corporations would send a discordant signal about corporate accountability out of tune with the UN Protect, Respect, Remedy Framework and Guiding Principles on business and human rights adopted unanimously by the UN Human Rights Council in 2011.

The Remedy pillar is given equal weight in the Protect, Respect, Remedy trio for an important reason – to emphasise the importance of redress, both for its significance to victims as well as the crucial preventive role effective and dissuasive remediation processes can have.

Further, the UN Framework and Guiding Principles affirm that access to remedies for alleged human rights abuses by corporations is a key dimension in effectively discharging both the state duty to protect against human rights abuses involving private actors, as well as the corporate responsibility to respect human rights everywhere.

It is perhaps appropriate that the Kiobel case, stemming from the 1995 Ogoni protests in the Niger Delta, prompted this landmark determination of the ATCA’s future applicability to corporations as defendants. Kiobel is one of several cases brought against Shell following violent suppression of the Movement for the Survival of the Ogoni People (MOSOP) who were demonstrating against oil pollution in the Delta.

The military dictatorship at the time responded by hanging nine of the protesters, including well-known writer Ken Saro-Wiwa and Dr Barinem Kiobel, husband of one of the eleven Kiobel plaintiffs. The executions arguably sparked what has become the modern business and human rights movement, leading Shell to make one of the first corporate commitments to human rights and Amnesty International to develop one of the first sets of human rights principles for companies. As the late Shell Executive Sir Geoffrey Chandler noted, the episode ‘proved a watershed both for the company and for the human rights movement’.

The UN Framework calls on companies to establish or participate in effective operational-level grievance mechanisms for individuals and communities whose human rights may be adversely impacted by company operations. In road testing’ the Remedy pillar of the Framework, the UN Special Representative on business and human rights John Ruggie affirmed that operational-level grievance mechanisms which meet the effectiveness criteria set out in the Guiding Principles (that such mechanisms are legitimate, accessible, predictable, equitable, transparent, rights-compatible, dialogue-based and continuously evolving) can play a significant role in remediating harms early on, reducing the risk that grievances are compounded and escalate into emotive, expensive and protracted litigation such as the Kiobel case today. For companies, proactive attention to grievances may reduce the need for such litigation and help guard against activist campaigns, media interest and shareholder actions that often accompany high-profile transnational cases.

But clearly governments must be at the forefront in ensuring effective remedies. Under the state duty to protect, governments have an obligation to ensure access to justice through provision of effective judicial and non-judicial remedies accessible to all. This is particularly difficult in cases rooted in conflict situations. Indeed, John Ruggie identified the need for greater clarity for states in how to effectively engage with enterprises to meet the challenges linked to conflict situations (often the setting of ATCA cases such as Kiobel) as one of the priority issues to follow up from his mandate.

It is safe to say that whether or not the Supreme Court finds in favour of the Kiobel plaintiffs, the need for more accessible forums for national or international redress to answer grievances unable to be remediated locally will remain a priority on the public agenda. Given the high threshold of evidence involving international crimes, tort laws such as ATCA and similar international processes, though often arduous, offer more accessible options.

The fact is that the ATCA is currently one of the few legal mechanisms available to those seeking to bring claims against corporations for human rights abuses. The Kiobel case is a stark reminder of the continued struggle around the world for justice by victims of corporate human rights violations and the need for more effective remedies at every level.

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