Tuesday, February 28, 2006

Case of the Month: Shell v. Ijaw Aborigines of Bayelsa State

My vote for the most important international law case of the month is Shell v. Ijaw Aborigines of Bayelsa State. The Federal High Court in Port Harcourt, Nigeria rendered its $1.5 billion dollar judgment against Shell on February 24, 2006. I have searched in vain for the text of the decision and will update the post once it becomes available. If you have a copy please let me know.

According to news reports, the case arose after the Nigerian Senate approved the fine in August 2004 after it was presented to the lower House of Representatives in 2003 and reviewed by an independent legal advisory panel set up by the lower house. Judge Okechukwu Okeke ruled that since both sides had agreed to go before the National Assembly, the order was binding on both sides.

In a press release, Shell stated that it "cannot comment until it has studied it in detail. However, SPDC believes that its appeal, which it has filed this afternoon, has strong grounds as independent expert advice demonstrates that there is no evidence to support the underlying claims. SPDC remains strongly committed to dialogue with the Ijaw people and all its other stakeholders."

The February decision follows an earlier decision by a Nigerian court on November 14, 2005 against Shell for environmental degradation. That decision is available here, together with a summary here. Included in the earlier judgment is the finding that Shell had violated the African Charter on Human and People's Rights, including Article 24 which provides that "All peoples shall have the right to a general satisfactory environment favorable to their development." It is an unusual example of communitarian international rights being enforced at the national level.

As reported here, the essence of that claim involved environmental degradation from gas flaring. "Gas is burned off in the Niger Delta because neither the major oil companies nor the NNPC has invested in facilities to convert the gas into commercial use. As the gas is pumped through the grid of oil pipelines that crisscross the Delta's mangrove swamps, agricultural fields, and even villages, it is flared at various stations, sending huge plumes of flame and smoke into the sky with a constant roar 24 hours a day, seven days a week. The practice, as well as the frequent oil spills that have degraded the Delta's fisheries, water and soil, not to mention its inhabitants' quality of life and health, has been the subject of vigorous protests by the minority populations in the Delta, beginning in the middle of the last century when Nigeria was still a British colony."

The claims of the Ijaw people were supported by environmental groups, particularly the Friends of the Earth and the Environmental Rights Action. A detailed report on these groups allegations against Shell is available here.

I have often wondered why claimants pursue human rights and environmental claims in the United States under the Alien Tort Statute if there are viable alternatives in the home forum. Without knowledge as to the quality of justice in Nigeria I do not presume that these courts necessarily provide an adequate alternative to pursue such claims (or guarantee due process for defendant corporations). But it is a significant development that a penalty of this magnitude has been imposed by a Nigerian court. One wonders if it may portend a new wave of human rights and environmental claims in non-traditional fora.

UPDATE: Kevin Jon Heller's near simultaneous post on the Nigerian judgment is here.

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