More than twenty years ago nine local activists from the Ogoni region
of Nigeria were executed by the then military dictatorship. The story
of the Ogoni Nine does not stop in Nigeria; the tale of the nine men,
the many lives lost, and the environmental degradation linked to the
extraction of oil in the region by Shell has quite literally travelled
the world. What is often commonly referred to as the Kiobel case—after
the application lodged by Esther Kiobel, the widow of Dr. Barinem
Kiobel—originated in Nigeria, has been heard by courts in the USA, and
is currently before Dutch courts. The Kiobel case, as well as a flurry
of other cases (e.g. the Bralima case before the Dutch NCP, the Nevsun
case before the Canadian courts, the Vedanta case before the UK courts,
or the Total case before the French courts, among others), embodies the
flight of corporate accountability cases out of their original African
contexts.
This transnational quest for an effective remedy by those who’s human
and/or environmental rights have been violated is understandable, but
it also raises serious questions about the consequences of the
delocalisation of access to remedies in such cases. This conference aims
to provide a forum for critical discussions of the justifications for,
and consequences of, using various delocalised ‘sites of justice’ for
human and environmental rights violations associated with ‘doing
business’ in Africa. The aim is not to focus on Kiobel or Nigeria in
particular, although contributions on this case are welcome, but to
generally engage in a critical examination of cases that ‘migrate’
between different sites of justice, and the associated benefits and
drawbacks of the displacement of corporate accountability out of African
courts to courts or non-judicial mechanisms (such as OECD National
Contact Points) based in the so-called Global North. In doing so, we
strongly encourage applicants to consider a variety of (critical)
theoretical perspectives in the analysis of this phenomenon.
In this collaboration between Asser Institute’s Doing Business Right project and AfronomicsLaw,
we welcome contributions from scholars working on African international
law, African perspectives of international/transnational law, as well
as scholars working on business and human rights more generally. The aim
is to bring a plurality of voices into conversation with each other,
and to generate original (and critical) engagements with the operation
of transnational justice in the business and human rights space. With
important developments taking place at the international level, such as
the drafting of a binding Treaty on Business and Human Rights, the
preparation of European legislation on mandatory human rights due
diligence, as well as the emergence of the African Continental Free
Trade Area (AfCFTA), which is set to foster business across African
borders, such discussions are not only timely, they are also necessary.
Deadlines and requirements:
In order to increase engagement from a broader range of actors from
the continent, the conference will be bilingual, English and French. The
conference presentations and outputs will also be accepted in either
language (2,000 word
blog post as part of a special symposium on AfronomicsLaw, as well as a
full-length paper for a special issue with a journal (journal tbd)).
Overview of deadlines:
- Deadline for abstract submission: 15 January 2021
- Draft papers due: 1 March 2021
- Digital conference: 24-26 March 2021
- Final contribution to blog symposium on AfronomicsLaw: 30 April 2021
- Final papers due for special issue with journal: 1 July 2021
Please submit abstracts in English or French (250 words) accompanied by a short CV (max. 5 pages) to m.plagis@asser.nl by 23:59 CET on 15 January 2021.
Editor's note: Mercedes
is a recent graduate of the LL.B. dual-degree programme English and
German Law,
which is taught jointly by University College London (UCL) and the
University
of Cologne. She will sit the German state exam in early 2022. Alongside
her
studies, she is working as student research assistant at the Institute
for International
and Foreign Private Law in Cologne. Since September 2020, she joined the
Asser Institute as a research intern for the Doing Business Right project
On 25
September 2020, the final hearings in the Kiobel case took place before
the Dutch District Court in The Hague. This case dates back to 25 years ago; and
the claimants embarked on a judicial journey that led them from the US to the
Netherlands. On 16 October 2020, the TMC Asser Institute hosted an online
roundtable discussion to present and discuss the arguments raised before the
Dutch court. The three panelists, Tara
Van Ho from Essex University, Tom de
Boer from Prakken d’Oliveira, and Lucas Roorda from
Utrecht University each provided their stance on the case and analyzed the
past, the present and the main issues of the proceedings.
Depending on the outcome of the case, Kiobel could
pave the way for further business human rights litigation in Europe. It raises
questions ranging from jurisdiction, applicable law, parent company liability
and fee arrangements to state sovereignty and the responsibility of former
colonial states vis à vis countries that emerged from colonial rule. Below you
will find the highlights of our discussion, you can also watch the full video
on the Asser Institute’s YouTube channel.More...
On Friday, 16 October, from 16.00-17.00, we will organise an online discussion about the Kiobel v. Shell case,
currently before Dutch courts in the Hague. The discussion will retrace
the trajectory followed by the case in reaching The Hague, explain the
arguments raised by both parties in the proceedings, and assess the
potential relevance of the future ruling for the wider debate on
corporate accountability/liability for human rights violations.
Background
In 1995, nine local activists from the Ogoniland region of
Nigeria (the Ogoni nine) were executed by the Nigerian authorities, then
under the military dictatorship of General Sani Abacha. They were
protesting against the widespread pollution stemming from the
exploitation of local oil resources by a Nigerian subsidiary of Royal
Dutch Shell when they were arrested and found guilty of murder in a sham
trial. Their deaths led first to a series of complaints against Royal
Dutch Shell in the United States on the basis of the alien tort statute
(ATS). One of them, lodged by Esther Kiobel, the wife of one of those
killed (Dr Barinem Kiobel), reached the US Supreme Court. Famously, the
Court decided to curtail the application of the ATS in situations that
do not sufficiently 'touch and concern' the territory of the United
States.
This ruling put an end to Esther Kiobel's US lawsuit, but
it did not stop her, together with three other widows (Victoria Bera,
Blessing Eawo and Charity Levula), from seeking to hold the
multinational company accountable for its alleged involvement in the
deaths of their husbands. Instead, in 2017, they decided to continue
their quest for justice on Royal Dutch Shell’s home turf, before Dutch
courts in The Hague. 25 years after the death of the Ogoni nine, the
court in The Hague just finished hearing the pleas of the parties and
will render its much-awaited decision in the coming months.
Confirmed speakers
- Tom de Boer (Human rights lawyer representing the claimants, Prakken d'Oliveira)
- Lucas Roorda (Utrecht University)
- Tara van Ho (Essex University)
- Antoine Duval, Senior researcher at the T.M.C Asser Instituut, will moderate the discussion
Register here to join the discussion on Friday.
Editor’s
note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of
European and International Human Rights Law at Leiden University in the
Netherlands. Prior to commencing the LLM, she worked as a business and human
rights solicitor in Australia where she specialised in promoting business
respect for human rights through engagement with policy, law and practice.
Introduction
This report compiles all relevant news,
events and materials on Doing Business Right based on the coverage provided on
our twitter feed @DoinBizRight and on various websites. You are invited to
contribute to this compilation via the comments section below, feel free to add
links to important cases, documents and articles we may have overlooked.
The
Headlines
German
Development Ministry drafts mandatory human rights due diligence
It was reported
on 10 February 2019 that the German Federal Ministry of Economic Cooperation
and Development has drafted legislation (unpublished) on mandatory human rights
due diligence for German companies. It is reported that the law will apply to
companies with over 250 employees and more than €40 million in annual sales.
The draft legislation targets, inter alia, the agriculture, energy, mining,
textile, leather and electronics production sectors. Companies that fall within
the scope of the legislation will be required to undertake internal risk
assessments to identify where human rights risks lie in their supply chains.
Companies would also be required to have a Compliance Officer to ensure
compliance with due diligence requirements. The Labor Inspectorate, the Federal
Institute for Occupational Safety and Health and the Human Rights Commissioner
of the Federal Government would be responsible for enforcing the legislation,
with penalties for non-compliance of up to €5 million (as well as imprisonment
and exclusion from public procurement in Germany).
Kiobel
case heard in the Netherlands
On 12 February 2019, the Dutch courts heard
a lawsuit involving Esther Kiobel and three other women against Shell. The
plaintiffs allege that Shell was complicity in the 1995 killings of their
husbands by Nigeria’s military. The husbands were Ogoni activists that were
part of the mass protests against oil pollution in Nigeria’s Ogoniland. The
judgment is expected to be handed down in May 2019. Read more here. More...
Editor's Note: Catherine Dunmore is
an experienced international lawyer who practised international arbitration for
multinational law firms in London and Paris. She recently received her LL.M.
from the University of Toronto and her main fields of interest include international
criminal law and human rights. Since October 2017, she is part of the team of
the Doing Business Right project at
the Asser Institute.
Introduction
This report compiles all relevant
news, events and materials on Doing Business Right based on the daily coverage
provided on our twitter feed @DoinBizRight. You are invited to complete this
survey via the comments section below, feel free to add links to important
cases, documents and articles we might have overlooked. More...
Editor's note: Sara Martinetto is an intern at T.M.C. Asser Institute. She has recently completed her LLM in Public International Law at the University of Amsterdam. She holds interests in Migration Law, Criminal Law, Human Rights and European Law, with a special focus on their transnational dimension.
On 29th June 2017, four Nigerian widows launched a civil case against Royal Dutch Shell (RDS), Shell Petroleum N.V., the Shell Transport and Trading Company, and its subsidiary Shell Petroleum Development Company of Nigeria (SPDC) in the Netherlands. Esther Kiobel, Victoria Bera, Blessing Eawo and Charity Levula are still seeking redress for the killing of their husbands in 1995 in Nigeria. They claim the defendants are accomplices in the execution of their husbands by the Abasha regime. Allegedly, the companies had provided material support, which then led to the arrest and death of the activists.
In the light of this lawsuit, it is interesting to retrace the so-called ‘Ogoni Nine’ legal saga. The case saw the interplay between multiple jurisdictions and actors, and its analysis is useful to point out some of the main legal issues encountered on the path to hold corporations accountable for human rights abuses. More...