“In the cases against Shell and Rio Tinto, business interests won over the human rights interests of the plaintiffs in the cases who had legitimate claims of torture and murder…”
WASHINGTON — Newly released internal memoranda and emails detail the process behind the British government’s intervention in a landmark ruling last year by the U.S. Supreme Court, which limited a pioneering law that had allowed the U.S. legal system to be used to prosecute overseas corporate human rights abuses.
Critics say the documents highlight disparities in access to the highest reaches of government between civil society groups and multinational corporations — in this case, the extractives companies Royal Dutch Shell PLC and Rio Tinto — as well as between the British government’s public and private stances on rights issues.
“The documents show an inconsistency in the U.K. government’s approach to business and human rights,” Katie Shay, legal and policy coordinator for the International Corporate Accountability Roundtable, a watchdog group, told MintPress News.
“In the cases against Shell and Rio Tinto, business interests won over the human rights interests of the plaintiffs in the cases who had legitimate claims of torture and murder, had no other option to obtain a remedy for their horrific abuses, and lacked the access to power that the well-resourced multinationals enjoyed in this case.”
The documents — 63 pages of which were released through Freedom of Information Act requests and made public earlier this month following years of requests — come from 2011 and 2012. They focus on a U.S. Supreme Court case called Kiobel v. Royal Dutch Petroleum Co., the company known in the United States as Shell Oil. The case was brought by communities in the Niger Delta, who claim that Shell-hired security groups, including the Nigerian military, tortured and killed environmentalists opposing the company’s operations during the 1990s.
The lawsuit against Shell, which had an investor office in New York, was brought under a unique U.S. law called the Alien Torts Statute. Yet Shell and others have argued that the statute should not be able to be used to prosecute for alleged crimes that take place outside of the United States. While the statute has been on the books since the late 18th century, its use in this regard has grown since the 1980s.
In the end, the U.S. Supreme Court agreed with Shell’s position, as backed by the U.K. government.
“The [Alien Torts Statute] had considerable impact, creating significant risks for companies causing or contributing to gross human rights violations,” Peter Frankental, the London-based director of the economic relations program at Amnesty International, told MintPress.
“Without the law used in these contexts, I think companies are being let off the hook and there is much less incentive to avoid causing or contributing to gross violations anywhere in the world. The one perhaps most effective law in existence to hold corporations accountable for overseas abuse can no longer be used for this purpose.”
The internal documents, received by a U.K.-based watchdog alliance called the Corporate Responsibility Coalition (CORE) that includes Amnesty International, appear to show that London officials acted following requests from Shell. The U.K. government, along with that of the Netherlands, subsequently filed two briefs, known as amicus curiae, with the U.S. Supreme Court, offering varying levels of support for Shell’s argument.
“Although Shell have [sic] not formally requested intervention by [the British government], their Counsel in the US has … ask[ed] for UK support,” a January 2012 memorandum, requesting advice from Parliament, states. The Foreign & Commonwealth Office “have [sic] also discussed the case with Shell in London and were asked if [the government] would submit an amicus brief.”
For drafting the new briefs, the British government returned to Baker & Miller, a Washington firm that specializes in Alien Tort Statute cases. According to the documents, the firm had previously written the British government’s amicus brief on a related case before the U.S. Supreme Court on behalf of Rio Tinto, the British mining giant.
That case had also been brought under the statute, with environmental activists alleging that Rio Tinto’s mining operations had extensively polluted a part of Papua New Guinea. Following the Kiobel decision, the Rio Tinto case was also thrown out.
“When you read these documents, the overall sense is really clear. Businesses are able to make the case to government that accountability is a problem for them,” Jonathan Kaufman, legal advocacy coordinator at EarthRights International, a legal advocacy group, told MintPress.
“But [no official] is asking the real question: Why is this a problem? Why would it be a bad thing if companies are held accountable for doing the most egregious things you can imagine?”
Kaufman notes that the British documents are the first substantive releases from a series of Freedom of Information Act requests made to the U.K., Dutch and U.S. governments.
“When the Kiobel decision came down we also had indications that Shell had been in the State Department and other U.S. government offices, so we called around and asked groups in the U.K. and the Netherlands whether they knew of anything similar,” he said.
“We and others submitted Freedom of Information requests in each country, but [the British response] was the only one that has turned up anything. In the Netherlands, the request was rejected and the appeal process was uncertain. The U.S. requests are still in limbo.”
Since the documents were made public, the British government has stated that its intention in filing the U.S. Supreme Court briefs was to “clarify our position on the proper limits of the extraterritorial application of US law.”
Yet the issue is complicated in light of both new and longstanding British policies in favor of corporate accountability and ensuring adherence to international human rights standards. The documents repeatedly show that British officials were keenly aware of the potential damage that filing an amicus brief could do to the country’s international image, while also acknowledging that the position would contravene stated British policies under United Nations instruments.
“Submission of a UK brief effectively defending the corporate position in this case will be perceived as inconsistent with our position on the UN Guiding Principles on Business and Human Rights,” a January 2012 memo, included in the new releases, states.
In fact, simultaneous with the drafting of the Kiobel brief, the British government was in the process of drawing up new national policies in recognition of the U.N. principles. Passed in 2011, the Guiding Principles include a key element known as judicial remedy, referring to the ability of victims of corporate abuses to access justice when the mistreatment occurs within a state’s jurisdiction.
In September, the British government unveiled its national plan to implement the Guiding Principles, proudly emphasizing the fact that it was the first country to do so. Part of the British plan includes promoting “international adherence” to the Guiding Principles.
“We live in a world where open markets and more equitable trading rules mean that British companies – large or small, public or private – are increasingly transnational,” Foreign Secretary William Hague said on Sept. 4 while introducing the national plan.
“[I]t’s not unusual for our companies to purchase materials from Bangkok, manufacture products in Bangalore, sell them in Bogota,” he said, adding, “… we live in a world where legal standards and practices for working conditions and the treatment of staff may differ from country to country.”
Yet in private discussions over the Kiobel case, British officials ultimately decided that concerns over human rights, as well as the United Kingdom’s image, were outweighed by the potential negative financial impact on British corporations.
British government agencies “fully recognise [sic] the presentational and reputational arguments for human rights policy that weigh against [submitting an amicus brief],” another January 2012 memorandum states, “but believe that the risks of damage to UK business both financially and for the UK’s wider economic and commercial reputation are at least of matching weight.”
Evidence suggesting that the British government prioritized corporate income over rights obligations — and that, too, following corporate request for intervention, whether directly or otherwise — strikes rights campaigners as egregious.
“In our view, the government caved to corporate lobbying by Shell, because they didn’t give sufficient weight to ideas that victims of abuse should have judicial remedy and that the U.S. courts should be that venue,” Amnesty’s Frankental said.
“Essentially, these documents show the U.K. government helping these companies duck scrutiny in the U.S. courts in relation to these allegations. This is an embarrassment, and we want the government to have to pay a political price for being hypocritical and disingenuous.”
There is also widespread skepticism over the central contention being argued in the internal British memos: that the Kiobel decision carried “potentially significant negative implications for UK business.” Indeed, as officials quoted in the documents acknowledge, “Quantifying these implications is extremely difficult.”
After all, most major multinational companies are able to easily sidestep any potential for extraterritorial prosecution through the common use of subsidiaries and other structural tricks.
Amnesty’s Frankental says there is “no evidence base” that the very select cases that have seen prosecution under the Alien Tort Statute would actually have any adverse impact on British business, much less the broader economy.
EarthRights’ Kaufman, too, notes that there was “never much prospect for the prosecution of British companies,” as the vast majority of cases brought under the statute have been against U.S. citizens and businesses.
“Ultimately, this was part of a broader desire to curb the reach of U.S. courts,” Kaufman said, “and to avoid the growing sense that businesses have human rights obligations for which they can be held directly responsible.”