Introduction
This paper explores the continuing legal issues arising from the non-compliance of environmental protection standards by private transnational economic actors operating beyond the national jurisdiction from which they originate. The focus here is on the activities of the multinational oil industry. This species of private transnational economic actors is taking advantage of increased opportunities to trade and especially to invest, within different national jurisdictions, following the success of worldwide efforts at trade liberalisation and investment protection, established through international organisations such as the World Trade Organization (WTO),Footnote 1 the International Centre for Settlement of Investment Disputes (ICSID),Footnote 2 and international treaties such as the Energy Charter Treaty,Footnote 3 as well as numerous bilateral investment treaties (known as BITs).Footnote 4 Through these multilateral and bilateral treaties, states have used international law to intervene within global markets and create opportunities for private transnational economic actors, such as multinational oil companies, to invest and/or operate within foreign jurisdictions. However, when these private economic actors cause environmental damage that is not remedied by the domestic courts and enforcement agencies within these foreign jurisdictions, there is a lack of international mechanisms that are directly enforceable against these private transnational economic actors to hold them accountable for their environmental damage. While several international instruments addressing such environmental damage have been adopted between states,Footnote 5 and under the auspices of international organisations such as the Organization for Economic Co-operation and Development (OECD),Footnote 6 they are not binding directly against the private economic actors involved, and moreover do not establish judicial or enforcement mechanisms to hold these private actors directly responsible under international law. For example, the Commentary to the Environment Chapter (VI) of the current, 2011, OECD Guidelines for Multinational Enterprises, states, inter alia, as follows: ‘None of these instruments is explicitly addressed to enterprises, although enterprise contributions are implicit in all of them. … The Guidelines therefore draw upon, but do not completely mirror, any existing instrument. … The Guidelines are not intended to reinterpret any existing instruments or to create new commitments or precedents on the part of governments … .’Footnote 7
Thus, Part I of this paper will first outline the different international and domestic legal means utilised to render these private transnational economic actors accountable, responsible and even liable for their non-compliance of domestic environmental protection standards abroad. International law responses to such damage range from the establishment of international compulsory compensation schemes, the proposed expansion of the doctrine of state responsibility to include liability for private actors, and more recently, through litigation in the home states of these multinational oil companies. However, jurisprudence from the International Tribunal for the Law of the Sea (ITLOS) exhibits a reluctance to hold private actors directly accountable to public international law. Domestic case-law from the US, the Netherlands and the UK also reveals a general ambivalence towards holding such private transnational economic actors accountable in their home state jurisdictions for violations committed abroad. Certain states (the US and France) have responded to this ambivalence at the international level by reasserting their domestic regulatory power to require immediate clean-up and compensation, prior to domestic judicial litigation.
In Part II, the legal implications of this altogether more forceful approach taken by certain states (the US and France) against the private transnational economic actors involved will be considered. On the other hand, other states (such as Nigeria) are unable to achieve the same level of effective enforcement against the multinational oil companies operating within their jurisdictions due to their weaker political and economic bargaining positions. As we will see below in the Deepwater Horizon and Erika case-studies, international ‘best practice’ for the clean-up, remediation and compensation for oil spills was ‘enforced’ against the multinational oil companies involved, namely, BP and Total, even prior to any domestic judicial finding of liability. This is in stark contrast to the jurisdictional and enforcement difficulties encountered when attempting to ensure clean-up and compensation for oil pollution in the Niger Delta region, at least in part attributed to omissions by Shell (Nigeria). The relative negotiating strengths of the host state governments involved, namely, the US (Deepwater), France (Erika) and Nigeria (Niger Delta) clearly played a part in the different response levels by the multinational oil companies implicated in each of these case-studies. This disparity is especially evident in the proactive BP and Total responses in the US and France, respectively, as compared with the paucity of the Shell response in Nigeria. Finally, this paper will conclude by reflecting on the viability of the different legal approaches towards rendering private transnational economic actors responsible for the environmental damage caused by their activities beyond their home state jurisdictions.
Key to the arguments presented here is the need to recognise both the initial sense of legitimate expectation, but also more recently the notion of social obligation that now underpins the legal relationships between private transnational economic actors and both the states they originate from and operate within. Previously, this sense of legitimate expectation manifested itself in arguments for the recognition of such private economic actors as legal persons with enforceable rights against states, especially in the field of investment protection. More recently, the initial sense of legitimate expectation of investment protection on the part of these private economic actors has transmuted into a growing sense of common obligations, accountability, and ultimately even acceptance of responsibility on the part of these actors for their actions or omissions, when these cause environmental damage. However, such acceptance of corporate responsibility is usually voluntary on the part of the private economic actor involved, rather than the result of the effective enforcement of international norms within the domestic jurisdictions where these companies operate.
These groundbreaking developments are also taking place against a backdrop of unprecedented questioning of the role of the state in the political economic sphere within which these private transnational economic actors operate. In particular, the regulatory and enforcement roles of the state within their municipal and international legal frameworks are under scrutiny as never before, even in areas that were traditionally within the domain of states. While the regulatory role of the state is being questioned, alternative international governance frameworks for holding private transnational economic actors accountable for their activities both at home and abroad have not necessarily been effective. Thus, individual states have retained their interventionist and regulatory roles over private transnational actors licensed to undertake economic activities deemed to be of significant state interest, such as the petroleum industry. In these situations, it is the relative strength of the residual regulatory power exerted by the host states that ultimately tips the balance either towards or against voluntary compliance by the multinational oil company involved.
I. International law responses to the challenge of regulating multinational oil companies
The main obstacle for public international law within this context is ensuring the effective implementation and enforcement of human rights and environmental protection standards by transnational private economic actors, especially when they operate in foreign (host state) jurisdictions, beyond their home state jurisdictions. Public international law, normally the domain of states, but increasingly also of inter-governmental organisations such as the United Nations (UN), the World Bank, the International Monetary Fund (IMF) and the World Trade Organisation, has developed at least two ways to regulate the transnational activities of private economic actors, such as these multinational oil companies.
First, via the adoption of multilayered global and regional normative instruments targeting transnational business activities. The adoption of international instruments such as the 2011 UN Guiding Principles on Business and Human RightsFootnote 8 (hereinafter, ‘Ruggie Guiding Principles'), the 2011 OECD Guidelines for Multinational Enterprises (OECD, 2011), and the 2000 Global Compact,Footnote 9 are all examples of the normative efforts of international governance institutions such as the UN and OECD in this field. These international normative exercises are designed to appeal directly to the behaviour of multinational businesses undertaking transnational activities with the aim of ensuring their compliance with, inter alia, international human rights and environmental protection standards. They have been applauded as being the best legal avenue to internalise such standards within transnational economic actors, even when compared with the possibility of making claims against US-based corporations using the Alien Torts Statute before US courts (Koh, Reference Koh2004, pp. 272–273). Notably, these international instruments confirm the application of basic human rights and environmental protection principles and standards to private transnational economic actors, even in their activities abroad. For example, the Commentary to the Environment chapter of the OECD Guidelines notes that ‘(t)he Guidelines also encourage enterprises to work to raise the level of environmental performance in all parts of their operations, even where this may not be formally required by existing practice in the countries in which they operate. In this regard, enterprises should take due account of their social and economic effects on developing countries' (OECD, 2011, para. 71).
However, as Blitt observes in relation to the Ruggie Guiding Principles (which observation also applies for the OECD Guidelines and Global Compact), none of these instruments create binding international law or impose obligations on multinational enterprises (Blitt, Reference Blitt2012), with many of their provisions using words such as ‘respect’ or ‘responsibility’, rather than ‘duty’ or ‘obligation’, to convey their normative status (p. 43). Moreover, these instruments do not provide any international means for enforcing these principles and standards directly against the errant corporations involved, especially when they are operating abroad. For example, the Ruggie Guiding Principles require states to provide access to effective domestic judicial and non-judicial remedies addressing business-related human rights abuses (see Ruggie Principles 26 and 27 and attached Commentaries, supra note 8), but the foundational Ruggie Principle on this issue appears to limit access to such remedies only to situations ‘when such abuses occur within their territory and/or jurisdiction’ (see Ruggie Principle 25 and attached Commentary in UN, 2011, supra note 8), thereby arguably negating the possibility of access to domestic remedies for abuses committed by businesses abroad. Neither is the responsibility for remediation of any damage caused as comprehensive as it could be. As Blitt notes, the Ruggie Guiding Principles do not impose a remediation responsibility in cases where the adverse impact is linked to a business entity, but not actually caused by the entity concerned (Blitt, Reference Blitt2012, p. 49, citing UNHRC; see supra note 8, 20–21). Where there are strong corporate links between parent companies and their subsidiary companies operating abroad, which implicate these parent companies when their subsidiaries cause damage abroad, the paucity of this provision is thereby exposed.
The second regulatory means utilised in this context is through the institutional networks established both across and within national jurisdictions aimed at rendering private economic actors that originate from these jurisdictions accountable for their risky human rights and environmental practices abroad. These institutionalised accountability networks are beginning to make an impact on multinational oil industry activities, especially through the concerted efforts of civil society groups utilising these networks. An example of both these normative and networking developments is the utilisation by Amnesty International and Friends of the Earth in January 2011 of both the OECD National Contact Points (NCPs) and the OECD Committee on International Investment and Multinational Enterprises (CIME), as well as the provision of testimony before a Dutch parliamentary committee hearing, to highlight the alleged involvement of the Royal Dutch Shell oil company in the despoliation of the Niger Delta through its operations in that area (Amnesty International, 2011). However, neither of these international and national governance and accountability frameworks can ultimately hold such private actors responsible and liable for any breach of international human rights and environmental standards in their transnational activities. As a recent Chatham House report on oil theft in Nigeria observes: ‘In June 2013, an NCP panel in the Netherlands issued a statement criticizing Shell for publishing data that exaggerated oil theft's role as a cause of oil spills in the Niger Delta. The statement was a limited victory for environmental activists in the region, but had no discernible effect on oil theft proper’ (Katsouris and Sayne, Reference Katsouris and Sayne2013, p. 63).
The continuing difficulties faced by these alternative international governance institutions established to render such private transnational economic actors accountable for their non-compliance of human rights and environmental norms abroad highlights the need for a re-configuration of international law so that it can be directly enforced against such private transnational actors in foreign jurisdictions. Despite evidence of the progressive co-option of private economic actors into acceptance of international human rights and environmental protection standards by instruments such as the Ruggie Principles, OECD Guidelines and UN Global Compact, gaps remain with regard to a crucial aspect of the overall public international law system, namely the direct imputation of responsibility and liability of these private actors, if and when they fail in their performance of these co-opted international principles, rules and standards. The following subsections chart some of the possible pathways towards rendering such actors legally accountable, responsible, and even liable, for their breach of international norms and standards in the human rights and environmental protection fields.
1.1 State intervention establishing compulsory international compensation schemes
A further international law response, at least within specific fields of economic activity deemed to be ultra-hazardous from an environmental perspective, is to establish international compensation schemes that extend to cover the activities of non-state, private transnational economic actors. Examples of these mechanisms are the international civil liability and compensation schemes (established by treaties) for oil spills from tanker shipping,Footnote 10 and damage from nuclear power generators.Footnote 11 Under these schemes, members of these industries are compelled to contribute towards compensation funds that are applicable on a worldwide basis. Focusing on the international agreements applying to oil cargo shipments, the first of these is the International Convention on Civil Liability for Oil Pollution Damage 1992 (1992 CLC), which governs the liability of ship owners for oil pollution damage.Footnote 12 Under this Convention, the registered ship owners incur strict liability for pollution damage caused by the escape or discharge of persistent oil from their ships. This means that they are liable even in the absence of fault. The compensation limits are dependent on the tonnage of the oil tanker ship. The International Oil Pollution Compensation Fund 1992 established under the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992,Footnote 13 which supplements the 1992 CLC, compensates victims when compensation under the 1992 CLC is unavailable or inadequate. The 1992 Fund is financed by contributions levied on any legal person who has received in one calendar year more than 150,000 tonnes of crude oil and/or heavy fuel oil (contributing oil) in a Member State of the 1992 Fund.Footnote 14 Most major oil companies are therefore required to contribute to this Fund. The Supplementary Fund Protocol was then adopted in 2003, and entered into force in 2005, thereby establishing the International Oil Pollution Compensation Supplementary Fund, 2003. The Supplementary Fund provides additional compensation beyond the amount available under the 1992 Civil Liability and Fund Conventions. The total amount available for compensation for each incident is 750 million Special Drawing Rights (SDR),Footnote 15 including the amounts payable under the 1992 Conventions.Footnote 16 These internationally managed compensation fund schemes pay out on the basis of strict, no-fault liability but with the quid pro quo proviso that claims from each incident are subject to strict upper limits on the total amount of compensation payable. They are arguably also examples of Ruggie Principle 29, calling for business enterprises to establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted, to make it possible for grievances to be addressed early and remediated directly (see Ruggie Principle 29 and attached commentary, supra note 8).
However, even these international civil liability and compensation schemes do not engender formal international legal sanctions against the companies undertaking these activities. Moreover, the narrow focus of these international civil liability schemes should not be overlooked. The international oil spill compensation schemes, for example, only cover oil tanker cargo movements using this specific mode of transportation. Indeed, an experts workshop held at the Paris Oceanographic Institute on 30 March 2012 concluded that ‘the international framework does not comprehensively address the safety and liability issues related to offshore oil activities' (Richotte, Reference Richotte2012, p. 12).
Within the offshore exploration/production sector of the oil industry, one recently amended regional arrangement, which entered into force on 1 January 2014, is the 1975 Offshore Pollution Liability Agreement (OPOL). This is not an international convention but a private agreement between sixteen (oil and gas company) operators in the offshore sector, adopted under the auspices of the Offshore Pollution Liability Association Ltd.Footnote 17 OPOL imposes strict liability on operators of offshore facilities and guarantees payment of compensation up to a limit currently set at US$250 million per pollution incident. The current parties to OPOL are the sixteen operators of offshore facilities within the jurisdiction of any of the ‘Designated States' to the Agreement. These include the UK, Denmark, Germany, France, the Republic of Ireland, the Netherlands, Norway, the Isle of Man, the Faroe Islands, and Greenland. Cameron, however, observes that this limit is not ‘anywhere near sufficient’ (Cameron, Reference Cameron2012, p. 211) to tackle large releases of oil, such as in the Deepwater Horizon case (p. 211) Moreover, he notes that although an international convention would be the ideal approach for the establishment of a global regime, the negotiation and implementation process would take years to complete, which would in turn lead to a ‘long time period of uncertainty for operators and contractors, and … diverse and unpredictable reactions from some regulatory bodies' (p. 218).
1.2 International Tribunal for the Law of the Sea reluctance to expand international responsibility
Such international oil spill compensation schemes, whether established by agreements between states, or through private, contractual-type liability agreements between corporate/industry representatives within each sector/region of the multinational oil industry, may prove to be the way forward on this issue, as well as other types of environmentally hazardous activities, such as deep-seabed mining. This is because there are continuing indications that the international adjudication bodies established by states are reluctant to fully co-opt private actors within the doctrine of state responsibility and liability for breaches of international norms. For example, when the question of responsibility for possible damage to the deep-seabed ‘Area’ beyond national jurisdiction was considered by the Seabed Disputes Chamber of the International Tribunal on the Law of the Sea,Footnote 18 it became clear that the Chamber was reluctant to apply any form of overarching joint and several liability upon both states and the entities they license to conduct mining activities in the ‘Area’.Footnote 19 As the Chamber itself observes, in the event of any damage to the ‘Area’ and its resources, as well as marine environmental damage,Footnote 20 the notion of joint and several liability entails that where different (state and non-state) entities have contributed to the same damage, then full reparation can be claimed from all or any of them.Footnote 21 However, the Chamber then asserts that this form of (joint and several) liability is not provided for under the liability regime established in Article 139, paragraph 2, of the Convention.Footnote 22
While confirming the international responsibility of sponsoring states for ensuring that activities in the Area are carried out in conformity with Part XI of the Convention under Article 139, paragraph 2,Footnote 23 the Chamber also noted that under Article 22 of Annex III to the Convention, the contractor shall have responsibility or liability for any damage arising out of wrongful acts in the conduct of its operations. Thus, the Chamber emphasised that the international responsibility of the sponsoring state was dependent on its due diligence when regulating any private economic actors that these states may license/permit to operate such mining activities. The Chamber took the view that ‘in order for the sponsoring State's liability to arise, there must be a causal link between the failure of that State and the damage caused by the sponsored contractor’.Footnote 24 The Chamber went on to state that ‘[t]his means that the sponsoring State's liability arises not from a failure of a private entity but rather from its own failure to carry out its own responsibilities. In order for the sponsoring State's liability to arise, it is necessary to establish that there is damage and that the damage was a result of the sponsoring State's failure to carry out its responsibilities. Such a causal link cannot be presumed and must be proven.’Footnote 25
Thus, if a sponsoring state has done all it can to reasonably discharge its due diligence duties vis-à-vis the regulation and supervision of its licensees, then no state responsibility will arise, despite the fact that damage has occurred within the deep-seabed Area. Indeed, in the view of the Chamber, if the contractor has paid the actual amount of damage, as required under Annex III, Article 22, of the Convention, then there would be no room for reparation by the sponsoring state.Footnote 26 On the other hand, failing to exert sufficient due diligence over their licensees' activities might well result in state responsibility under international law, even if the damage is actually caused by the private economic actor holding the licence/permit from the state concerned.
However, the Chamber also accepted that: ‘[t]he situation becomes more complex if the contractor has not covered the damage fully. It was pointed out in the proceedings that a gap in liability may occur if, notwithstanding the fact that the sponsoring State has taken all necessary and appropriate measures, the sponsored contractor has caused damage and is unable to meet its liability in full. It was further pointed out that a gap in liability may also occur if the sponsoring State failed to meet its obligations but that failure is not causally linked to the damage, … .’Footnote 27 This raised the issue of whether the sponsoring state has ‘a residual liability, that is, the liability to cover the damage not covered by the sponsored contractor’, on which the Chamber noted, opinio juris among states was divided.Footnote 28 In the view of the Chamber, ‘the liability regime established by article 139 of the Convention and in related instruments leaves no room for residual liability’.Footnote 29 In such situations, the Chamber refused to consider extending even a residual form of international responsibility or non-fault liability to the sponsoring state concerned. Instead, the Chamber was of the view that the Authority may wish to consider the establishment of a trust fund to compensate for the damage not covered, drawing attention to Article 235, paragraph 3, of the Convention, which refers to such a possibility.Footnote 30
Following its assessment of the applicability of the Conventional rules on attribution of liability for damage to the deep-seabed Area, the Chamber goes on to examine the general international law applicable to such situations, observing that: ‘In the event that no causal link pertaining to the failure of the sponsoring States to carry out their responsibilities and the damage caused can be established, the question arises whether they may nevertheless be held liable under the customary international law rules on State responsibility.’Footnote 31 The Chamber then moved to consider whether customary international law may be used to fill the gap in the deep-seabed liability regime established in Part XI of the Convention and related instruments, noting that Articles 139, paragraph 2, first sentence, and 304 of the Convention state that their provisions are ‘without prejudice’ to the rules of international law.Footnote 32 After further noting that the efforts made by the International Law Commission (ILC) to address the issue of damages resulting from acts not prohibited under international law have not yet resulted in provisions entailing state liability for lawful acts, the Chamber again draws the attention of the Authority to the option of establishing a trust fund to cover such damages not covered otherwise.Footnote 33 It will not have gone unnoticed that the solution mooted by the Chamber here is both conceptually and practically similar to that which is already in place for tanker oil spill pollution compensation and liability for nuclear power generation accidents. While the Chamber does not elaborate on which of the entities concerned – whether the sponsoring states, or their licensees, or both – should contribute towards this trust fund, this option does allow for the possibility that the private economic actors undertaking deep-seabed activities will be included within the proposed trust fund. These private economic actors will thus be captured by public international law in line with the risks their activities pose to the fragile deep-seabed environment that is subject to the ‘common heritage of mankind’ principle.
1.3 Litigation by Niger Delta communities before domestic US, Netherlands and UK courts
A further legal response to the alleged damage caused by the overseas activity of multinational oil companies is aimed at rendering them accountable before the domestic courts of their own, home, jurisdictions rather than through the application of international regimes. Traditionally, the main legal obstacles to such litigation by alleged victims of multinational oil companies operating abroad before the domestic courts of the home jurisdictions of these companies are two-fold: first, there is a presumption under international law against the extra-territorial exercise of jurisdiction by domestic courts, also known as the forum non conveniens rule, that normally prevents them from adjudicating on claims that arise from foreign jurisdictions. Second, there is the company law doctrine of the ‘corporate veil’, which provides that the liability of a subsidiary company should not be visited upon the parent company of that subsidiary, especially when the parent company is resident in a different national jurisdiction. Both these doctrines continue to present difficulties for attempts to enforce legal accountability for multinational oil company activities within foreign jurisdictions. It should also be noted that even if/when the extra-territorial jurisdiction and corporate veil issues are overcome, any municipal court decisions in the home state jurisdictions of the parent company must be accepted by the local courts in the jurisdictions of the subsidiary company for enforcement against them.
Three recent cases within different domestic jurisdictions, namely, the US, the Netherlands and the UK, serve to focus attention on these continuing legal issues arising from activities conducted by multinational oil companies operating beyond their home jurisdictions. In each of these cases, representative individuals or groups from Niger Delta communities claimed compensation from the Shell oil multinational corporate group. The analytical arrangement of these cases reflects first, the upholding in Kiobel v. Royal Dutch (Shell) Petroleum of the presumption against the extra-territorial application of the US federal Alien Torts Statute (ATS) by the US Supreme Court. This is followed by the Akpan v. Royal Dutch Shell & SPDC/Shell Nigeria case, where The Hague District Court set aside the presumption against extra-territorial jurisdiction to hold the Nigerian subsidiary company of Shell liable under the common law tort of negligence but declined to lift the corporate veil and implicate the Royal Dutch Shell parent company (in the Netherlands) for this breach of a duty of care amounting to negligence by its Nigerian subsidiary. Finally, continuing litigation in the Bodo Community and Shell Petroleum Development Company (SPDC) of Nigeria (Shell Nigeria) case confirms the extra-territorial application of Nigerian law by the High Court in the UK to adjudicate claims of tortious liability against SPDC/Shell Nigeria but has not yet yielded a final decision on total damages and costs.
In the first of these cases, namely the US Supreme Court decision in the Kiobel v. Royal Dutch (Shell) Petroleum on 17 April 2013,Footnote 34 the plaintiff(s) from the Ogoniland region in Nigeria alleged that the multinational corporate defendant (Royal Dutch Shell), which also has major operations in the US, aided and abetted human rights abuses by the Nigerian government. However, the Supreme Court ruled against the extra-territorial application of the 1789 US Alien Torts Statute and disallowed liability claims against the US-based corporate entities of Shell related to the SPDC/Shell Nigeria.Footnote 35 As Wuerth succinctly observes: ‘[o]n the facts of the case – the relevant conduct took place within the territory of a foreign sovereign, the claims did not “touch and concern” U.S. territory, and the foreign defendants had no more than a “corporate presence” in the United States – the Court held that the presumption [against extra-territorial application of the ATS] was not overcome.’ (|Wuerth, Reference Wuerth2013, p. 603). Apart from emphasising the difficulty of establishing extra-territorial claims under the ATS, this ruling has also cast doubt on whether corporations can be defendants under this law (Slawotsky, Reference Slawotsky2011, pp. 186–187), although, as Slawotsky notes, this aspect of the ruling has been questioned in subsequent US court decisions and would result in an asymmetrical situation whereby corporate rights to investment protection under international law are not matched by remedies for corporate violations of international law (p. 201).
The Supreme Court decision in Kiobel confirming the lack of extra-territorial application of the ATS to claims originating from Nigeria cannot be directly compared with The Hague District Court decision of Akpan v. Royal Dutch Shell & SPDC/Shell Nigeria rendered on 30 January 2013 in The Hague, Netherlands,Footnote 36 as the forum non conveniens rule is now arguably redundant in continental European courts, due to the Brussels Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels I Regulation), which stipulates, inter alia, that a defendant shall be sued in its domicile, and that the domicile of a company is in the location of its corporate headquarters or its registered office.Footnote 37 However, these cases are linked by the nationalities of the claimants (Nigeria) and the corporate defendants (Royal Dutch Shell multinational group), as well as the fact that both these cases took place before domestic courts in foreign jurisdictions. Both sets of claimants also suffered from what Meeran has characterised as the lack of access to local justice, due to several possible reasons, including an inability to fund lawyers and experts to represent them in their local courts, as well as the persecution of claimants, and corruption, such that often the only prospect of obtaining justice in claims against multinational companies is to pursue claims in their home courts, where victims may obtain the services of lawyers in a position to represent them on a contingency fee or pro bono basis (Meeran, Reference Meeran2011, p. 10).
The Akpan case was initially brought against both the parent Royal Dutch Shell company, as well as its subsidiary in Nigeria – SPDC/Shell Nigeria, for its neglect of an oil spill that caused damage to adjoining farmland and fishing ponds in the Niger Delta region. According to Bekker, this lawsuit was the first time a Dutch multinational company has been sued before The Hague District Court in the Netherlands for allegations of pollution damage caused by its subsidiary company abroad (Bekker, Reference Bekker2013). In the Akpan case, Nigerian farmers and fishermen victims from the neighbouring villages of Goi, Oruma and Ikot Ada Udo lost their livelihoods when a leaking SPDC oil wellhead polluted their fields and fishing ponds. The (representative) individual claimant, Akpan is a Nigerian farmer and fisherman who supported himself by exploiting land and fish ponds near Ikot Ada Udo in Akwa Ibom State in Nigeria. He was supported in his claim by Vereniging Milieudefensie, a Dutch Non-Governmental Organisation (NGO) ‘whose objective is the worldwide promotion of environmental care’.Footnote 38 The joint claims of Akpan and Milieudefensie relate to two specific oil spills in 2006 and 2007 from an oil well, the wellhead of which was capped above ground but tampered with, causing the two spills. Following some initial remedial work in 2007, the wellhead was finally sealed off against sabotage by means of a concrete plug.Footnote 39 The joint plaintiffs brought claims against both the Royal Dutch Shell plc parent company and the SPDC/Shell Nigerian subsidiary before The Hague District Court, Netherlands, inter alia, claiming compensation and an order for SPDC to clean up the remaining oil contamination.
In response, SPDC/Royal Dutch Shell contested the jurisdiction of the Dutch courts to adjudicate on the above issues, requested that the court declare that it has no jurisdiction over the claims against the SPDC, and, moreover, that the plaintiffs were abusing the relevant Dutch law by initiating proceedings against Royal Dutch Shell, the parent company of SPDC/Shell Nigeria. A further legal issue concerned the standing of the Dutch NGO as a joint plaintiff, alongside Akpan as a representative claimant from the affected Nigerian communities, in relation to the claims for environmental damage in Nigeria.
The Akpan v. Royal Dutch Shell & SPDC/Shell Nigeria decision thus confirms the jurisdictional, corporate veil and domestic legal enforcement challenges referred to above when attempting to invoke liability against the Netherlands-based Royal Dutch Shell parent company for the activities of its subsidiary company – SPDC, based in Nigeria.Footnote 40 The jurisdictional challenge alluded to here relates to the difficulty that bringing an extra-territorial claim presents for most national legal systems around the world. On the other hand, an amicus curiae submission by a group of Dutch international lawyers to the Kiobel v. Royal Dutch (Shell) Petroleum case before the US Supreme Court concluded as follows: ‘Dutch case law is therefore incompatible with any alleged rule of customary international law prohibiting the exercise of jurisdiction by domestic courts over claims such as those pursued by the Petitioners here. To the contrary, recent Dutch case law suggests that such claims are indeed recognized by the courts.’Footnote 41 The collective view of these Dutch university academics was confirmed in the Akpan case.
In a significant interlocutory Judgment on its jurisdiction on 24 February 2010,Footnote 42 The Hague District Court unequivocally affirmed that ‘the forum non conveniens restriction no longer plays any role in today's private international law’.Footnote 43 Moreover, The Hague District Court found that it had jurisdiction over the claims against both corporate defendants, namely, the Shell subsidiary in Nigeria (SPDC), and the Shell parent company (Royal Dutch Shell) in the Netherlands.Footnote 44 The close connection between these two entities meant that a joint hearing was justified for reasons of efficiency.Footnote 45 In passing, it should be noted that the court, and indeed the relevant Dutch and EU laws that it based its decision on jurisdiction in this case, may be said to be fulfilling Ruggie Principle 26, which calls for consideration of ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to effective domestic judicial remedies for addressing business-related human rights abuses.
Following this determination on its jurisdiction, The Hague District Court then ruled that the applicable law in these proceedings would be Nigerian law,Footnote 46 noting in passing that Nigerian law is a common-law system based on English law.Footnote 47 The court had previously observed that ‘under certain circumstances, based on Nigerian law, the parent company of a subsidiary may be liable based on the tort of negligence against people who suffered damage as a result of the activities of that (sub-) subsidiary’.Footnote 48 Next, the admissibility of Milieudefensie's claims against Royal Dutch Shell and SPDC/Shell Nigeria as separate claimants were considered. Here, the court held that Milieudefensie's claims clearly went beyond the individual interests of Akpan, in that remediating the soil, cleaning up the fish ponds, purifying the water sources and preparing an adequate contingency plan for future responses to oil spills – if ordered – would benefit not only Akpan, but the rest of the community and the environment in the vicinity of Ikot Ada Udo, as well.Footnote 49 Moreover, the court considered that Milieudefensie's campaigns aimed at stopping environmental pollution in the production of oil in Nigeria were designed to promote the environmental interests of Nigeria.Footnote 50 Finally, the court held that such local environmental damage abroad would fall within the description of Milieudefensie's objective in its articles of association, i.e. to promote environmental protection worldwide.Footnote 51
However, while The Hague District Court initially ruled in favour of the admissibility of the Dutch NGO's claims to defend environmental interests in Nigeria before the courts in the Netherlands,Footnote 52 it ultimately rejected the Dutch NGO's claims in substance because oil pollution in Nigeria does not directly affect Milieudefensie's interests and did not give rise to an actionable claim by the Dutch environmental NGO based in Amsterdam, the Netherlands under Nigerian law. The fact that under the relevant Dutch law Milieudefensie can protect the interests of third parties in law does not mean that any damage to those third parties can be considered to be damage to Milieudefensie itself.Footnote 53 The court further noted that under Nigerian common law, there was no proximity between SPDC in Nigeria and Milieudefensie in Amsterdam for any damage that occurred in Nigeria. Thus, Shell et al. had not violated any duty of care in respect of Milieudefensie and the court dismissed the claims by and for Milieudefensie.Footnote 54
Moving on to the issue of Royal Dutch Shell (RDS) parent company liability for its subsidiary, SPDC/Shell Nigeria, in its final rulings of 30 January 2013, The Hague District Court dismissed all claims against the parent company – RDS – because under Nigerian law a parent company in principle is not obligated to prevent its subsidiaries from injuring third parties abroad, and in the present case there were no special reasons to deviate from the general rule (Bekker, Reference Bekker2013).Footnote 55 Specifically, Milieudefensie had argued that by making the prevention of environmental damage as a result of the activities of its operating companies – including SPDC in Nigeria – a key objective of its well-publicised overall corporate policy, RDS had assumed a duty of care regarding the manner in which SPDC's oil operations in Nigeria are conducted. In this regard, the RDS–SPDC/Shell Nigeria, parent–subsidiary corporate relationship was compared with that in the Chandler v. Cape plc case before the UK Court of Appeal.Footnote 56
However, The Hague District Court found that ‘the special relation or proximity between a parent company and the employees of its subsidiary that operates in the same country cannot be unreservedly equated with the proximity between the parent company of an international group of oil companies and the people living in the vicinity of oil pipelines and oil facilities of its (sub-) subsidiaries in other countries'.Footnote 57 Moreover, ‘the duty of care of a parent company in respect of the employees of a subsidiary that operates in the same country further only comprises a relatively limited group of people, whereas a possible duty of care of a parent company of an international group of oil companies in respect of the people living in the vicinity of oil pipelines and oil facilities of (sub-) subsidiaries would create a duty of care in respect of a virtually unlimited group of people in many countries'.Footnote 58 Thus, The Hague District Court held that a similar duty of care to that which was found by the UK Court of Appeal in Chandler could not be as reasonably, fairly and justly found in relation to RDS and SPDC/Shell Nigeria.Footnote 59 The Royal Dutch Shell group of (parent) companies was therefore absolved from the liability of its Nigerian-based subsidiary – SPDC/Shell Nigeria – for its lack of effective action to prevent oil spill damage from wellhead leaks resulting from sabotage by third persons.Footnote 60
On the other hand, The Hague District Court held that it was fair, just and reasonable to rule that SPDC/Shell Nigeria had a specific duty of care in respect of the people living in the vicinity of the oil wellhead, especially fishermen and farmers like Akpan, to take reasonable security measures against sabotage.Footnote 61 As an operator acting reasonably, SPDC could have properly secured the oil wellhead at relatively low cost, which would in turn have considerably reduced the risk of sabotage. This lead the court to the conclusion that, in this specific case, SPDC had violated its duty of care in respect of Akpan and committed a specific tort of negligence.Footnote 62 As there was a causal link between the violation of this specific duty of care by SPDC and the damage suffered by Akpan, SPDC was liable to pay Akpan compensation for this damage.Footnote 63 However, this ruling then raises the enforcement issue noted above. A continuing legal question is whether this Hague District Court decision on liability and compensation against SPDC/Shell Nigeria can be enforced and complied with in Nigeria, especially given the lack of compliance by SPDC to domestic Nigerian court decisions in other Niger Delta cases of a similar nature in the past.Footnote 64
Turning to the third domestic jurisdiction in which similar lawsuits have been brought by representatives of local Nigerian communities against SPDC/Shell Nigeria; in The Bodo Community v. The Shell Petroleum Development Company of Nigeria Ltd., representatives of the community brought claims before the UK High Court, on behalf of some 15,000 or more Nigerians living in the neighbouring Bodo and Gokana areas.Footnote 65 These claims for compensation were initially lodged against both RDS and SPDC/Shell Nigeria for oil spills that had polluted the creek, rivers and waterways as well as the mangrove areas in the Bodo region. The damage was estimated to have affected an area of 20 km2 in the Gokana Local Government Area of Rivers State in Nigeria. SPDC has admitted liability for damage resulting from two major oil spills in 2008/2009, in particular to the waterways used by this fishing community in the Niger Delta. The amount of oil spilt is estimated to be as large as the spill following the Exxon Valdez disaster in Alaska in 1989, and the amount of coastline affected is said to be equivalent to the damage done following the BP Deepwater Horizon disaster in the Gulf of Mexico in 2010 (considered below). However, this admission of liability is currently subject to further litigation over the full extent of the oil spillages and their timing.Footnote 66
Proceedings against RDS and SPDC began in the UK High Court on 6 April 2011. However, in August 2011, Shell was reported to have accepted legal responsibility for the two spills, stating, inter alia, that: ‘SPDC accepts responsibility under the Oil Pipelines Act for the two oil spills both of which were due to equipment failure. SPDC acknowledges that it is liable to pay compensation – to those who are entitled to receive such compensation’ (Vidal, Reference Vidal2011). In an agreement between the parties, SPDC has agreed to formally accept liability and concede to the jurisdiction of the UK courts, which means that the claim against RDS, the parent company of SPDC in Nigeria, has ceased (Leigh Day and Co, 2011).
In the subsequent UK High Court adjudication on the extent of SPDC liability, a similar legal finding to the duty to prevent possible sabotage of the oil wellhead that was held by the Dutch court in the Akpan case has also emerged in the Bodo Community litigation before the High Court. This relates to the extent to which the word ‘protect’ in the relevant Nigerian legislation (Section 11(5)(b) of the Oil Pipelines Act, 1990) involves an additional obligation to that of ‘maintain or repair’ the pipeline concerned. As Akenhead J held: ‘The real issue revolves around whether the required protection gives rise to any liability separate to the maintenance and repair obligation, and, if so, how far the scope of protection goes.’Footnote 67 He goes on to state that: ‘Whilst I do not consider that the word “protect” is exactly and necessarily synonymous with maintenance or repair [of a pipeline], logic suggests that they may well overlap in practice; … the usual definitions [of “protect”] can be seen to be closer to shielding from danger, injury or change and keeping safe and taking care of. … [I]t is my judgment that the protection requirement within Section 11(5)(b) involves a general shielding and caring obligation.’Footnote 68 He then concludes that: ‘neglect by the licensee in the protection of the pipeline [as defined above] which can be proved to be the enabling cause of preventable damage to the pipeline by people illegally engaged in bunkering which causes spillage could give rise to a liability … .’Footnote 69 Thus, in both these cases – Akpan before The Hague District Court, based on the common-law tort of negligence and Bodo before the UK High Court, based on interpretation of the relevant statue – it has been determined that it is the failure to protect/prevent the relevant oil wellhead/pipeline from acts of sabotage that cause oil spill damage that can give rise to liability on the part of the operating oil company.
II. State reintervention to ensure appropriate corporate responses to oil spills: international ‘best practice’?
Having outlined and assessed the legal challenges faced at both international and domestic jurisdiction levels in relation to asserting accountability for multinationmal oil companies operating in foreign jurisdictions, this Part (II) will provide two examples of (host) state-induced corporate responses to oil spill clean-up, remediation and compensation. Significantly, these state ‘enforcement’ actions against two different, so-called ‘super major’ multinational oil companies took place prior to the ultimate domestic judicial decisions on their corporate liability for these major oil spills. These two examples: the BP/US and Total/French/EU responses to the Deepwater Horizon and Erika oil spills, respectively, arguably represent international ‘best practice’ in this field.
2.1 Deepwater Horizon / Macondo offshore oil well spill (BP/US)
Following the Gulf of Mexico Deepwater Horizon / Macondo offshore oil well disaster on 20 April 2010,Footnote 70 the Obama administration, through the US Coast Guard, and without in any way relieving other responsible parties of liability, directed British Petroleum (BP), as the designated operator of the well, to establish a single claims facility for all Responsible Parties to centralise claims processing for claimants. As an initial response to its acceptance of corporate responsibility and liability, BP announced on 16 June 2010, that it would create a US$20 billion escrow account to satisfy claims resolved by the Gulf Coast Claims Facility (GCCF) and certain other claims, including natural resource damages. BP established an irrevocable Trust (for the announced escrow account) on 6 August 2010, designating three trustees with fiduciary responsibility to collect promised contributions from BP and make disbursements to permitted categories of beneficiaries. It committed BP to fund the Trust on a quarterly basis over three and a half years for a total of $20 billion to be paid into the Trust until 2014. The funding schedule for the escrow account agreed to by the administration and BP was for contributions by BP of $5 billon a year for four years. BP later confirmed that the funding schedule would include an initial deposit of $3 billion, which was made on 9 August 2010, with an additional deposit of $2 billion in the fourth quarter of 2010 and then $1.25 billion a quarter until the entire $20 billion has been deposited. The Trust was to pay some OPA-compensable claims (under the US federal Oil Pollution Act (OPA) of 1990)Footnote 71 and some other claims for personal injuries that are not OPA-compensable, but for which BP would be liable under other US federal or state laws, such as the Jones Act or state oil pollution acts. Under Section 1002 of the OPA 1990, each person responsible for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages. BP established the GCCF to provide a mechanism for individuals and businesses to file claims for costs and damages incurred as a result of the Deepwater Horizon oil spill. Under the OPA 1990, these claims can cover damage to natural resources, including clean-up and remediation costs for wildlife habitats and ecosystems.Footnote 72 The GCCF began operations and started accepting claim forms on 23 August 2010. The GCCF, administered by Kenneth R. Feinberg, drew funds from the Trust to pay the claims.Footnote 73 Thus, liability for the damage caused was being enforced at the domestic US (federal and state) jurisdictional level. Indeed, as noted above, BP has already been subjected to unprecedented US federal government fines totalling US$4.5 billion.Footnote 74
This swift admission of BP's overall corporate responsibility,Footnote 75 coupled with its advance acceptance of an initial multi-billion US dollar liability for the Deepwater Horizon spill, and moreover, the establishment of a formal institutional framework for the management of compensation claims in the form of the GCCF, can be favourably contrasted with the decades-old struggle to engage Shell (and other International Oil Companies (IOCs)) with their responsibility and liability for oil spills in the Niger Delta. Many NGOs and commentators have drawn attention to the gulf of difference between efforts to clean up, remediate and compensate oil pollution damage in the recent Deepwater Horizon spill, as opposed to the continuing lack of such efforts over spills of similar overall magnitude in the Delta region over a greater length of time (Vidal, Reference Vidal2010). For example, a local civil society organisation, the Human Rights Writers' Association of Nigeria (HURIWA) not only applauded a landmark July 2010 Nigerian Federal High Court decision requiring SPDC to pay the Ejama-Ebubu community the sum of N15.4 billion as special and punitive damages, but also advised the defaulting SPDC/Shell Nigeria to pay the damages in line with ‘international best practices' [sic], drawing a lesson from the response of both the White House and Capitol Hill to the Deepwater Horizon disaster in the US (Iriekpen, Reference Iriekpen2010). Indeed, Milieudefensie, the Dutch chapter of the Friends of the Earth (FOE) environmental NGO network, has labelled the wide disparity between the BP and Shell responses to the Deepwater Horizon and Niger Delta spills, respectively, as ‘Shell's double standard’ (Milieudefensie, 2011, pp. 8–9).
2.2 Erika oil tanker spill (Total/France/EU)
A second example of voluntarily induced corporate efforts at clean-up, remediation and compensation is evidenced from the Total oil company response following the Erika oil tanker spill off the French coast of Brittany.Footnote 76 Total (as the oil cargo owner) and several ship (worthiness) classification societies were sued by French local authorities (and wildlife NGOs) for the clean-up and remediation costs and obtained an initial order for Total to pay out millions of euros in clean-up and remediation costs. Faced with French government and public pressure, Total committed these sums in advance of its appeals against this initial order, and even when it won the appeal, did not take steps to recoup its outlay for the Erika clean-up. The facts and legal issues arising from the Erika incident are summarised below.
On 12 December 1999, the 25-year-old Maltese-registered oil tanker Erika (19,666 gross tonnage) broke in two in the Bay of Biscay, some 60 nautical miles off the Brittany coast, western France, releasing tonnes of heavy fuel oil into the Atlantic. All members of the crew were rescued by the French maritime rescue services. Some 400 kilometres of shoreline were affected by oil. Although the removal of the bulk of the oil from shorelines was completed quite rapidly, considerable secondary cleaning to remove residual contamination was still required in many areas. Operations began in spring 2001 and were mostly completed by November 2001. More than 250,000 tonnes of oily waste were collected from shorelines and temporarily stockpiled. Total SA, the French (major) oil company that owned the oil cargo of the Erika, engaged a contractor to deal with the disposal of the recovered waste and this operation was completed in December 2003. According to Total, immediately following the sinking, the company established the Atlantic Coast Task Force and spent more than €200 million to remedy the consequences of the oil spill through a clean-up of hard-to-access areas of the coastline, pumping out the cargo remaining in the wreck, and the treatment of waste collected along the coast (see Total, 2008).
Initial compensation claims were settled by the international oil pollution compensation scheme established by states, as described above. The maximum amount of funds available for compensation under the applicable international tanker oil spill compensation scheme, namely, the 1992 CLC and the 1992 Fund Convention, for the Erika incident was 135 million SDR, then equivalent to around €185 million. Both the French state and Total SA also made undertakings to ‘stand last in the queue’ for the final redemption of oil spill clean-up and remediation costs.Footnote 77 The different categories of claims allowed include the following headings: property damage and loss of tourism, damage to mariculture and oyster farming, shellfish gathering, fishing boats, fish and shellfish processors, and the costs of clean-up operations. Following the Erika and Prestige incidents, a Supplementary Fund Protocol to the 1992 Fund Convention was adopted in 2003 and entered into force in 2005, providing (for those IOPC Member States who chose to make additional contributions) a much higher limit of compensation (Supplementary Fund Protocol).Footnote 78
Aside from the clean-up and remediation costs incurred by Total in the immediate aftermath of the incident, both criminal charges and civil liability claims were also brought against Total in the Criminal Court in Paris. A number of claimants, including the French government and several local authorities, joined the criminal proceedings as civil parties, claiming compensation totalling €400 million. In its Judgment, delivered in January 2008, the Criminal Court held the following four parties criminally liable for the offence of causing pollution: the representative of the ship owner (Tevere Shipping), the president of the management company (Panship Management and Services Srl), the classification society (RINA) and Total SA. The Paris Criminal Court of First Instance also recognised (i) the civil right to compensation for damage to the environment for a local authority with special powers for the protection, management and conservation of a territory, as well as (ii) the right of an environmental protection association to claim compensation, not only for the moral damage caused to the collective interests which it was its purpose to defend, but also for damage to the environment which affected the collective interests which it had a statutory mission to safeguard. Regarding these civil liabilities, the Judgment held the four parties jointly and severally liable for the damage caused by the incident and awarded claimants in the proceedings compensation for economic losses, damage to the image of several regions and municipalities, moral damages and damages to the environment. Moreover, the Judgment considered that Total SA could not avail itself of the benefit of the channelling provision of Article III.4(c) of the 1992 CLC,Footnote 79 since the Court held it was not the charterer of the Erika, as the charterer was one of Total SA's subsidiaries. The Judgment considered that the other three parties, RINA in particular, were also not protected by the channelling provisions of the 1992 CLC, since they did not fall into the category of persons performing services for the ship under Article III.4(b).Footnote 80
The Judgment concluded that French domestic law should be applied to the four parties and that therefore the four parties had civil liability for the consequences of the incident. The compensation awarded to the civil parties by the Criminal Court of First Instance was based on national law. The Court held that the 1992 Conventions did not deprive the civil parties of their right to obtain compensation for their damage in the Criminal Courts, and awarded claimants in the proceedings compensation for economic loss, damage to the image of several regions and municipalities, moral damages and damages to the environment. The Court assessed the total damages in the amount of €192.8 million, including €153.9 million for the French state. The four parties held liable, including Total, appealed against both the criminal and civil liability aspects of this Judgment. However, without admitting its liability, Total SA nevertheless made voluntary payments in full and final settlement to the plaintiffs, who accepted them, including to the French local and state governments, totalling €171.5 million. Accordingly, Total estimates that it has spent over €370 million in total to clean up, remediate and compensate for the damage resulting from the Erika incident.
In its Judgment on 30 March 2010, the Court of Appeal of Paris confirmed the Judgment of the Criminal Court of First Instance, and held, respectively, the representative of the ship owner (Tevere Shipping), the president of the management company (Panship Management and Services Srl), the classification society (RINA) and Total SA all criminally liable for the offence of causing pollution. The Court of Appeal also confirmed the fines imposed by the Court of First Instance. The Court found, inter alia, that Total was imprudent in implementing its vessel vetting process and ordered Total to pay the original (criminal) fine imposed by the Court of First Instance, to the amount of €375,000. However, on the civil liability aspects of this case, the Court of Appeal reversed the finding of the Criminal Court of First Instance and decided that Total SA was ‘de facto’ the charterer of the Erika and could therefore benefit from the channelling provisions of Article III.4(c) of the 1992 CLC, since the imprudence committed in its vetting of the Erika could not be considered as having been committed with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. The Court of Appeal thus held that Total SA did not incur civil liability for the consequent oil spill. However, the appellate court also decided that the voluntary payments made by Total SA to the civil parties following the Judgment of the Criminal Court of First Instance were to be regarded as final payments which could not be recovered from the civil parties (see Maritime Executive, 2010). Significantly, Total did not contest this finding of the Court of Appeal.
Comparing the two case-studies presented in this Part, the pre-emptive regulatory actions by the US and France and the comprehensive responses of BP and Total in the Deepwater Horizon and Erika incidents to these actions, respectively, can be contrasted with the lack of timely response by SPDC/Shell Nigeria to the continuing oil pollution of the Niger Delta region. This disparity in the individual corporate responses to major polluting events also speaks volumes for the clear differences in the respective corporate/host state relationships in Nigeria, as compared with the US and France.
Conclusion
This paper began by observing that international normative exercises aimed at rendering multinational oil companies that are culpable of environmental damage in foreign jurisdictions accountable for their actions or omissions continue to suffer from a lack of enforceable international mechanisms to ensure corporate responsibility for such damage abroad. In the absence of international/transnational enforcement mechanisms, the present analysis has highlighted new legal developments heralding the possibility of improving the accountability, responsibility, and even liability, of multinational oil companies. Two modes of action have been examined here: first, the establishment by states of international civil liability schemes compelling individual legal persons involved in ultra-hazardous activities to contribute towards an established compensation fund. Relying on examples from the oil transport and nuclear power generation industries, it should be possible for states to expressly regulate by similar international agreements, liability for compensation for breaches of international law by private economic actors in many other fields of transnational economic activity. Second, pre-emptive regulatory action following recent examples of the US and the French governments, resulting in what is arguably now international ‘best practice’ in corporate responsibility on the part of BP and Total, respectively, for the clean-up, remediation and compensation of environmental and other damages arising from oil spills.
Finally, it remains to be seen whether the latest legal frontline that has been opened on this issue, namely, the cross-jurisdictional pursuit of the parent company, Royal Dutch Shell, through its subsidiary company, SPDC (Nigeria) in both Dutch and UK courts, will yield the requisite justice for the Niger Delta communities and its environment in the face of arguably decades of corporate misbehaviour in this region. Despite the withdrawal of the forum non conveniens doctrine in the Akpan and Bodo Community cases by The Hague District Court and the UK High Court, respectively, the continuing reluctance of both domestic courts (and international tribunals, such as the ITLOS) to ultimately extend international responsibility to private actors operating beyond their national jurisdictions is clear. In the same vein, the continuing absence of even suitable legal nomenclature denoting such responsibility for breaches of international norms by private actors is notable, in the sense that we still talk of ‘state’ responsibility for breaches of international law, as opposed to ‘corporate’ or ‘individual’ responsibility, apart from the imputation of individual criminal responsibility for war crimes. Within this context, enforcing international responsibility and liability on the part of private economic actors operating transnationally across different national jurisdictions for their breaches of international norms must still be considered to be an aspiration rather than the reality.
