ICJ and CORE welcome landmark UK Supreme Court decision – Nigerian claimants can pursue environmental devastation allegations against Shell in UK courts

ICJ and CORE welcome landmark UK Supreme Court decision – Nigerian claimants can pursue environmental devastation allegations against Shell in UK courts

Today, the ICJ and The Corporate Responsibility (CORE) Coalition UK, welcomed the judgment of the UK Supreme Court in the case Okpabi et al. v Royal Dutch Shell plc et al as a major step forward for those seeking access to justice for corporate abuses in the Niger Delta and around the world.

The Supreme Court judgment allows the case to proceed in the UK courts, reversing earlier decisions by the Court of Appeal and the High Court, and reaffirming the precedent established in its own previous decision in Lungowe et al v Vedanta resources (2019).

Carlos Lopez, Senior Legal Advisor at the ICJ, said:

“The emphasis of the Supreme Court on the relevance of evidence from internal company documents is of utmost importance for the proper assessment of whether the parent company intervened, advised or controlled the relevant activities of its subsidiary that caused harm, including notably human rights abuses and environmental destruction.

“This should have an impact on future similar proceedings before courts in the UK and elsewhere.”

Mark Dearn, Director of CORE, said:

“This landmark ruling is a vital step towards justice for some 50,000 claimants from the Ogale and Bille communities. It sends a clear message to multinational corporations like Shell – you have a duty of care and you will be held to account for human rights abuses and environmental damage caused by subsidiaries you control.

“Shell brazenly claimed in court that the oil spills were due to ‘uniquely Nigerian problems’. But the unique problem long faced by communities in this region is Shell’s impunity, as it has repeatedly tried to dodge accountability for its catastrophic destruction of the environment and people’s livelihoods.”

“It’s now crucial that governments step up to the plate to create new corporate accountability laws so that businesses know exactly what is expected of them.”

In Vedanta, the Court affirmed that a parent company that sufficiently intervenes, controls or advises the relevant operations of its subsidiary may bear liability for the breach of its duty of care towards the people affected by those operations.

Okpabi and other nearly 50,000 claimants in total – sued Royal Dutch Shell (RDS -the UK based parent company) and its Nigerian subsidiary Shell Petroleum Development Corporation (SPDC) for their alleged involvement in the leakage of oil pipelines which destroyed their farming land, wiped out fish stocks and poisoned drinking water in the Niger Delta, Nigeria.

In 2018 the Court of Appeal dismissed the claimants’ case, but the claimants appealed to the Supreme Court. The ICJ and the CORE Coalition intervened before the Supreme Court.

The Supreme Court has allowed the claim to proceed, focusing on whether the claim had a real prospect of success and the high relevance of the internal company documents for a proper assessment.

Find the judgment here.

Notes to Editors:

  • This case was first launched in 2015 in the UK High Court. For a timeline of the case’s passage through the UK court system, see here.
  • The ICJ and CORE Coalition submitted a legal brief to the Supreme Court setting out the applicability of comparative law and standards regarding companies’ responsibilities in relation to human rights and environmental protection. These standards showed that Royal Dutch Shell PLC (Shell) could have duty of care in relation to the communities affected by its Nigerian subsidiary’s activities.
  • In 2018 the Court of Appeal dismissed the claimants’ case, ruling that Shell did not exercise sufficient control over its subsidiary SPDC for Shell possibly to hold a duty of care towards those affected by the oil spills.
  • The Supreme Court judgment reverses that judgment, cautioning against dismissing such claims in “mini-trials” without proper access to all relevant facts and evidence that are in great part in the power of the company. The judgment clarifies the evidential threshold needed for the courts to hear such cases in the UK: “The resolution of the jurisdictional challenge depended upon whether the appellants’ claim satisfied the summary judgment test of real prospect of success.” (para 127 ref. Vedanta at para 45)
  • In another section the Court also corrected the Court of Appeal’s view that the promulgation by a parent company of group wide policies or standards can never in itself give rise to a duty of care, saying: “that is inconsistent with Vedanta. Group guidelines … may be shown to contain systemic errors which, when implemented as of course by a particular subsidiary, then cause harm to third parties.” (para 143)
  • In Lungowe v Vedanta Resources plc, which CORE and the ICJ similarly filed a joint intervention, the Supreme Court ruled that a duty of care was owed by the UK parent company, Vedanta. A settlement was subsequently reached. As the Supreme Court notes, this ruling was “very relevant to both the procedural and the substantive issues raised on this [Okpabi v Shell] appeal”.
Judges in Asia & the Pacific Discuss Ensuring Gender Equality and Non-Discrimination in Environmental Cases

Judges in Asia & the Pacific Discuss Ensuring Gender Equality and Non-Discrimination in Environmental Cases

From 30 November to 1 December 2019, the ICJ and the Raoul Wallenberg Institute of Human Rights and Humanitarian Law (RWI) held the Judges’ Workshop on Adjudicating Environmental Cases with a Gender Perspective, in Bangkok, Thailand.

Judges from Fiji, Maldives, Indonesia, Philippines, Sri Lanka and Cambodia participated in the workshop. The discussions aimed at strengthening judges’ understanding of the relationship between women’s human rights and the right to a healthy environment. Throughout the two-day event, judges exchanged views on and considered cases showing how environmental degradation and climate change have a disproportionately detrimental impact on women, and how these phenomena affect them in a significantly different way as compared to men.

“It is through these gatherings that we learn from each other’s experiences and strengthen each other’s knowledge on this area,” said Frederick Rawski, ICJ’s Regional Director for Asia and the Pacific.

He continued, “We hope that this is the beginning of a greater body of work from judges in this region with a view to ensuring equality before the law and non-discrimination in environmental cases.”

During the workshop, the judges referred to the reference manual, Women’s Human Rights and the Right to a Clean, Safe, Healthy, and Sustainable Environment, which was developed by RWI with ICJ’s expert input. At the end of the workshop, judges agreed they would use this manual as a guide when faced with cases involving women and the right to a clean, safe, healthy and sustainable environment.

Contact:

Boram Jang, International Legal Advisor, International Commission of Jurists, t: +66 63 665 5315, e: boram.jang(a)icj.org

Resources:

To access pictures from the event, click here.

Thailand: ICJ co-hosts discussion on National Action Plan on Business and Human Rights

Thailand: ICJ co-hosts discussion on National Action Plan on Business and Human Rights

On 21 October 2019, the ICJ co-hosted an event on “Business and Human Rights and Thailand’s National Action Plan on Business and Human Rights” at Mido Hotel in Bangkok.

The discussion surrounded the evolution of business and human rights in Thailand and concerns arising with respect to the National Action Plan on Business and Human Rights (‘NAP’)’s key priority issues.

Notably, on the same day of this event, the NAP was being considered by the Cabinet for approval.

Participants included 37 individuals representing affected populations from all regions of Thailand, members of civil society organizations, and representatives from international organizations.

Sanhawan Srisod, ICJ’s Legal Adviser, spoke at a panel on ‘Land, Environment and Natural Resources’, addressing key concerns arising with respect to environmental laws in Thailand. These included the lack of adequate consultations with affected stakeholders before implementing development projects, inadequate assessment of environmental impacts prior to policy determination, inadequate protections under relevant laws on the environment, problems arising from Environmental Impact Assessment (EIA) and Environmental and Health Impact Assessment (EHIA) processes, and obstacles in accessing remedy for environment-related cases. She also facilitated another panel on judicial harassment of human rights defenders.

Saovanee Kaewjullakarn, ICJ’s Legal Consultant, facilitated a panel on Thai outbound investment and challenges with respect to access to justice for victims of human rights abuses committed by Thai corporations in the context of their business activities abroad.

The event was co-hosted with the Community Resource Centre Foundation (CRC), Spirit in Education Movement (SEM), Thai Extra-Territorial Obligations Working Group (Thai ETOs Watch), EarthRights International (ERI), Asian Forum for Human Rights and Development (FORUM-ASIA), Business and Human Rights Resource Center (BHRRC) and the British Embassy in Thailand.

Background

After the event, on 29 October 2019, the Cabinet approved and adopted the First National Action Plan on Business and Human Rights (2019-2022), making Thailand the first country in Asia to adopt the stand-alone NAP.

The NAP sets out plans to be followed by several public and private stakeholders in order to ensure the state’s and business’s duty to protect and respect human rights, and the general obligation of the State and businesses to provide for access to remedy in the case of business-related human rights violations and abuses. NAP has determined four key priority issues, including (1) Labor; (2) Land, environment and natural resources; (3) Human rights defenders; and (4) Cross border investment and multi-national enterprises.

Subject to these four key priority issues, the NAP emphasizes the duties of the relevant State agencies to, inter alia, review and amend certain laws, regulations and orders that are not in compliance with human rights laws and standards and ensure their full implementation, ensure mechanisms for redress and accountability for damage done to affected communities and individuals, overcome the barriers to meaningful participation of communities and key affected populations, and strengthen the role of businesses to “respect” human rights on a variety of key priority issues.

Its effectiveness in term of implementation is yet to be assessed because the NAP does not have the status of a law, but is merely a resolution from the executive branch. Under Thai law, a Cabinet Resolution is considered a “by-law” in accordance with section 3 of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999).

In March 2019, the ICJ and Human Rights Lawyers’ Association (HRLA) had also submitted recommendations to the Ministry of Justice on Thailand’s draft NAP and expressed concern on the removal of a commitment that had been included in earlier versions of the NAP to “push for an Anti- Strategic Litigation against Public Participation (SLAPP) law”.

Further reading:

Thailand: ICJ hosts discussion on human rights consequences of Special Investment Zones

Thailand’s Legal Frameworks on Corporate Accountability for Outbound Investments

Thailand: ICJ and HRLA express concern about inadequate protections for human rights defenders in draft National Action Plan on Business and Human Rights

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