WE ALL KNOW corporations do bad things. Big corporates have been publicly named and shamed for their participation in causing harm to people and the planet, and they are not always held to account.
As the 2009 Ruggie report on business and human rights noted, governance gaps have appeared which create a “permissive environment” allowing corporations to act with impunity.
But what we don’t all know is how so-called democratic governments support these same corporations who inflict harm. These are governments that have a duty to protect human rights and who are signatories to numerous international human rights conventions.
Right now, three Western governments – the United Kingdom, Germany, and the Netherlands – are supporting Shell in the United States Supreme Court, in its attempt to fight off accusations of human rights violations.
But actions taken by a previous Australian government could also be informing the case in favour of Shell. With the current government yet to make a contribution either way.
Last week, a group of Australian International Law scholars submitted their brief to the US Supreme Court in in order to set the record straight.
Money and power
Kiobel v. Royal Dutch Petroleum is a human rights case that is currently before the US Supreme Court. Shell Oil is accused of being complicit with the Nigerian government in committing war crimes against the Ogoni tribe who were opposing oil extraction in their territory in the 1990s.
The case is being heard under the Alien Tort Statute (ATS) which allows foreign plaintiffs to seek justice for acts in breach of international law.
Plaintiff Esther Kiobel was married to Dr. Barinem Kiobel, one of the Ogoni Nine, who were famously executed alongside Ken Saro-Wiwa, by the Nigerian government. The government was suppressing their protest against the environmental degradation and other harms associated with the large-scale extraction of oil. The US Supreme Court is currently considering whether the ATS applies to abuses that took place in countries other than the United States.
In relation to this, the UK, German and Dutch governments have filed amici curiae briefs with the US Supreme Court, supporting Shell Oil and urging the rejection of this human rights case. And there is concern amongst Australian and international human rights organisations that a position taken by the previous Howard government might misinform the US Supreme Court’s considerations. The term amici curiae, literally means a “friend of the court”, providing unsolicited evidence to assist in the hearing of a specific case.
The ATS has long been an important tool for human rights accountability in the US and it has always been assumed to apply to acts that took place outside the US.
Since 2004, Australia provided amici briefs supporting the petition for review of mining giant Rio Tinto, which would like to appeal a decision under the ATS to the Supreme Court. Human rights networks such as Australian Corporate Accountability Now (ACAN) are concerned that Australia may now also file an amicus curiae brief with the US Supreme Court in the Kiobel case, arguing that the ATS should not apply to cases arising outside the United States for reasons of international law and to respect other nations’ sovereignty.
But this would surely be an error against human rights principles. The current government must not, no matter the pressure from corporations, provide the US court with an amici brief that undermines the ATS.
We all know that corporations provide jobs; we all understand that governments have to encourage business and economic activity; we are all clear on the fact that governments want to be re-elected, and they, therefore, do not want to annoy powerful stakeholders.
But we expect democratic governments to honour their duty to represent the complexity and diversity of voices. So, when governments provide unsolicited support that promotes corporate interests at the expense of human rights accountability, it is clear that these governments are making a mistake – one which befriends the powerful corporations at the expense of anyone else.
Governments that have endorsed the United Nations Guiding Principles on Business and Human Rights, including the Australian government, must be called to account to behave in ways that are compatible with human rights protection and national foreign policy.
If not, they contradict their fundamental obligations and support those who are seeking profit above the lives of human beings.