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September 06, 2012
Lawsuit Alleging Human Rights Violations by Shell in Nigeria Reaches SCOTUS
    by Robert Kropp

In an issues brief, Professor John Ruggie wonders if Shell's efforts to undermine the Alien Tort Statute will undermine its claims of corporate social responsibility.

In the 1990s, according to the plaintiffs in a case to be heard by the US Supreme Court next month, Shell and two of its subsidiaries collaborated with the military forces of Nigeria to violate the human rights of citizens protesting the environmentally destructive practices of the oil companies there.

Kiobel v. Royal Dutch Petroleum Co. contends that Nigerian security forces tortured and executed nine protestors in 1995, and cites the 1789 Alien Tort Statute (ATS) as grounds for holding Shell responsible for its complicity.

Shell and other corporations that filed briefs in support of its legal position have argued that although corporations voluntarily observe human rights norms, they cannot be prosecuted for failing to do so because international courts have not upheld such norms in a legal framework.

"This leaves the Supreme Court with an extraordinary choice to make," Peter Weiss of the Center for Constitutional Rights wrote in a New York Times op-ed. "Whether to accept an argument that, in effect, leaves corporations less culpable than individuals are for human rights violations committed abroad."

Professor John Ruggie, author of the Guiding Principles on Business and Human Rights, weighed in on the controversy in an issues brief published this week. The Guiding Principles authored by Ruggie were endorsed by the United Nations Human Rights Council last year.

In Kiobel and Corporate Social Responsibility, Ruggie wrote, "Shell's attorneys are now seeking to persuade the Supreme Court to issue an extraordinarily far-reaching ruling: that the ATS does not apply to corporations, including U.S. firms; that as it currently stands the ATS violates international law; and that, therefore, even for natural persons its reach should be pulled back to cover only violations committed within the jurisdiction of the United States and 'possibly' on the high seas."

After citing a number of inconsistencies in Shell's legal argument, Ruggie asks, "Should the corporate responsibility to respect human rights remain entirely divorced from litigation strategy and tactics, particularly where the company has choices about the grounds on which to defend itself?"

"If, on top of the many other reputational and legal challenges it has faced over the years, Shell also ends up being held responsible for so radically constricting the ATS, its road back to the corporate social responsibility fold will be long and hard," Ruggie concludes.


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