Feb 12, 2021 | Cases, News
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”.
Sep 30, 2020 | Feature articles, News
Venezuela is suffering from an unprecedented human rights and humanitarian crisis that has deepened due to the dereliction by the authoritarian government and the breakdown of the rule of law in the country.
The International Organization for Migration (IOM) has estimated that some 5.2 million Venezuelans have left the country, most arriving as refugees and migrants in neighbouring countries.
The Office of the United Nations High Commissioner for Human Rights (OHCHR) in 2018 had categorized this situation of human rights, as “a downward spiral with no end in sight”.
The situation of the right to health in Venezuela and its public health system showed structural problems before the pandemic and was described as a “dramatic health crisis (…) consequence of the collapse of the Venezuelan health care system” by the High Commissioner.
Recently, the OHCHR submitted a report to the Human Rights Council, in which it addressed, among other things the attacks on indigenous peoples’ rights in the Arco Minero del Orinoco (Orinoco’s Mining Arc or AMO).
Indigenous peoples’ rights and the AMO mining projects before the covid-19 pandemic
Indigenous peoples have been traditionally forgotten by government authorities in Venezuela and condemned to live in poverty. During the humanitarian crisis, they have suffered further abuses due to the mining activity and the violence occurring in their territories.
In 2016, the Venezuelan government created the Orinoco’s Mining Arc National Strategic Development Zone through presidential Decree No. 2248, as a mega-mining project focused mainly in gold extraction in an area of 111.843,70 square kilometres.
It is located at the south of the Orinoco river in the Amazonian territories of Venezuela and covers three states: Amazonas, Bolívar and Delta Amacuro.
It is the habitat for several indigenous ethnic groups[1] who were not properly consulted before the implementation of the project.
The right to land of indigenous peoples is recognized in the Venezuelan Constitution. Yet, as reported by local NGO Programa Venezolano de Educación- Acción en Derechos Humanos (PROVEA), the authorities have shown no progress in the demarcation and protection of indigenous territories since 2016.
Several indigenous organizations and other social movements have expressed concern and rejected the AMO project.
The implementation of this project has negatively impacted indigenous peoples’ rights to life, health and a safe, healthy and sustainable environment. Human Rights Watch, Business and Human Rights Resource Center, local NGO’s, social movements and the OHCHR, have documented the destruction of the land and the contamination of rivers due to the deforestation and mining activity, which is also contributing to the growth of Malaria and other diseases.
Indigenous women and children are among the most affected. The Pan-American Health Organization (PAHO) has reported that “the indigenous populations living in border areas of Venezuela are highly vulnerable to epidemic-prone diseases”, and it raised a special concern about the Warao people (Venezuela and Guyana border) and Yanomami people (Venezuela and Brazil border).
Women and children also face higher risks of sexual and labour exploitation and of gender-based violence in the context of mining activities.
The High Commissioner’s recent report mentions that there is “a sharp increase since 2016 in prostitution, sexual exploitation and trafficking in mining areas, including of adolescent girls.”
In addition, the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) and the United Nations Children’s Fund (UNICEF) have identified a trend among adolescents of dropping out of school particularly between the ages of 13 and 17. Indigenous individuals are acutely affected, as many children leave to become workers at the mines.
Violence and crime have also increased in the AMO. Criminal organizations and guerrilla and paramilitary groups are present in the zone, and the Venezuelan government has expanded its military presence. Indigenous leaders and human rights defenders have been targets of attacks and threats; and there is a persistence of allegations of cases of enforced disappearances and extrajudicial and arbitrary killings.
Current situation under COVID-19 pandemic
The COVID-19 pandemic and the lack of adequate response to it has aggravated this situation.
The government declared a state of emergency (estado de alarma) on 13 March and established a mandatory lockdown and social distancing measures. Yet mining activities have continued without adequate sanitary protocols to prevent the spread of the pandemic.
The State of Bolívar -the largest state of the country which is located in the Orinoco Mining Arc- has among the highest numbers of confirmed cases of COVID-19 which have included indigenous peoples.
The Venezuelan authorities’ response to the pandemic in these territories has not considered culturally appropriate measures for them. In addition, although authorities established a group of hospitals and medical facilities called “sentinel centres” to attend persons with COVID-19 symptoms, they are located in cities while indigenous communities live far from cities.
Furthermore, the lack of petrol in the country aggravates the obstacles to easy transportation to these centres.
Civil society organizations and indigenous leaders complain about the lack of COVID-19 tests and the data manipulation of the real situation of the pandemic. Also, the OHCHR reported the arbitrary arrest of at least three health professionals for denouncing the lack of basic equipment and for providing information about the situation of COVID-19, and stressed that there are “restrictions to civic and democratic space, including under the “state of alarm” decreed in response to the COVID-19 pandemic.”
[1] At least Kari’ña, Warao, Arawak, Pemón, Ye’kwana, Sanemá o Hotï, Eñe’pa, Panare, Wánai, Mapoyo, Piaroa and Hiwi.
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Venezuela-COVID19 indigenous-News Feature articles-2020-ENG (full article with additional information, in PDF)
Dec 2, 2019 | Advocacy, News
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.
Oct 22, 2019 | Advocacy, News
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
Sep 21, 2019 | Advocacy
The ICJ has joined several hundred organizations working to defend human rights, the environment, and climate justice in a bold declaration setting out a vision and objectives for addressing the climate crisis and the devastating human rights and environmental impact of catastrophic climate change.
The Declaration was adopted at a gathering of the the Peoples’ Summit on Climate, Rights and Human Survival in New York on 18-19 September, which brought together some 200 representatives of Indigenous Peoples, workers, academia, environmental and human rights groups, including the ICJ.
The Declaration warns that “the climate emergency threatens human survival, the environment and the enjoyment of all human rights, for present and future generations.”
It emphasizes that governments and corporations bear the primary responsibility for acting to address and reverse the drivers of climate change.
The signatories to the Declaration agreed to 10 types of actions, including, among others, placing human rights at the core of climate activism, demanding effective access to justice for individuals and communities whose rights are impacted by the climate crisis, and support for environmental human rights defenders.
Download
Universal-Peoples Summit Declaration CC-Advocacy-2019-ENG (full declaration in PDF)