On 17 October 2012, the Foreign Affairs Committee published its Third Report, focusing on the FCO’s human rights work in 2011. During the course of gathering evidence for the report, the Committee received written evidence from Amnesty International dated 15 May 2012. Amnesty strongly criticised the British government for co-authoring, with the Dutch government, an amicus brief supporting the position taken by Shell in defence of the claim brought by Esther Kiobel and eleven other plaintiffs for complicity in alleged human rights abuses.
To recap, the Kiobel litigation concerns events during the 1990s when it is alleged that the Niger Delta protests of the Ogoni people concerning the activities of Shell were brutally repressed by the Nigerian government. The allegations include incidents of torture, execution without due process, destruction of property and forced movement of thousands of people. It is alleged that Shell conspired with the Nigerian military forces conducting the repression, providing arms, finance and logistics.
Esther Kiobel and her co-claimants have brought a civil suit in the USA under the Alien Tort Statute. The claimants argue that the ATS gives US courts the jurisdiction to hear claims for violations of universally recognised human rights norms against perpetrators found within the USA.
Shell, supported by the UK and Dutch government through their amicus briefs, have rejected the claims by, inter alia, arguing that the ATS does not make the US courts a suitable forum to hear the case. In particular, it is argued that international law does not impose direct liability on corporations. Rather, international obligations only fall upon States and (in the case of international criminal law) on individuals.
The defendants, and the British and Dutch governments, counter claimant arguments further by stating that instruments such as the UN Guiding Principles on Business and Human Rights are just that: non-binding guidelines which do not reflect the state of customary international law. In essence, the defendants (and their British and Dutch amici curiae) are arguing against expanding the notion of extra-territorial jurisdiction, even for such heinous acts as allegedly committed in the Niger Delta.
The Foreign Affairs Committee welcomed the FCO’s intention to develop a Business and Human Rights Strategy but stated that the Government was not doing enough ‘to meet the spirit of the UN Guiding Principles’ – particularly regarding the responsibility upon states to take "appropriate steps to prevent, investigate, punish and redress abuse through effective policies, legislation, regulations and adjudication". The Committee also referred to a 1996 Home Office report discussing criteria for permitting extra-territorial jurisdiction, one of which was, "Where it appears to be in the interest of the standing and reputation of the UK in the international community". So, the ‘appropriate steps’ envisaged by the UN’s Guiding Principles would surely include extending extra-territorial jurisdiction in cases alleging torts and crimes against businesses that in effect amount to international crimes.
Beyond this obvious policy disconnect highlighted by Lisa Nandy in her article, the pertinent phrase that leaps out of the 1996 Home Office Steering Committee review is whether it would be in the interest of the standing and reputation of the UK in the international community.
Is it not manifestly in the interests of the UK’s overseas reputation to be seen to be at the vanguard of the fight against serious human rights abuses, rather than adopting an obstructionist approach to attempts to hold transnational corporations accountable?
Is it also not manifestly in the interests of the UK’s overseas standing to ensure it complies with obligations under (for example) Article 13 of the European Convention on Human Rights and Fundamental Freedoms to provide an effective remedy for such a serious violation as torture?
In the absence of agreement on the precise scope of corporate obligations under customary international law, a specific Act of Parliament to extend extra-territorial civil and criminal liability to companies committing or being complicit in the commission of limited, specific serious human rights violations would provide proof that the UK is serious in its commitment to taking ‘appropriate steps to prevent, investigate, punish and redress abuse’ as required by the UN Guiding Principles.
Sadly, the opinions expressed in the Kiobel amicus brief would suggest that this is far from likely.