Kiobel Guest Post: A rejoinder to Samuel Moyn

Kiobel Guest Post: A rejoinder to Samuel Moyn

[Dr. Elizabeth A. Wilson is Assistant Professor at the School of Diplomacy and International Relations at Seton Hall University.]

In the “Insta-Symposium” conducted here after the Supreme Court’s Kiobel decision, Peter Spiro linked to a piece by Samuel Moyn about Kiobel posted on the Foreign Affairs website and said he was “sympathetic” with Moyn’s conclusion that “human rights advocates would be better served to abandon the ATS, even to the extent that Kiobel leaves the door open.” Not willing to go quite so far as Moyn in celebrating the ATS’s demise, Spiro nonetheless said, “pressing corporate social responsibility norms may not lend itself to the same sort of sexy clinical offerings as the ATS, but it may be better preparation for today’s real world of human rights practice.” These criticisms connect with important debates happening now concerning the “legalization” of human rights and the ability of human rights to offer “a real politics of change,” in Beth Simmons’ words, so it is important to see what lessons the Kiobel case  and its underlying facts really teach.

For those not specialized in human rights, Moyn is a professor of history at Columbia who wrote a book called The Last Utopia in which he argued for a revisionist account of human rights history, stressing the discontinuity of human rights– imagined as they are today as a feature in an international legal system — with a host of ideas and events usually taken as antecedents, including the Universal Declaration of Human Rights, the American Declaration of Independence, and the French Declaration on the Rights of Man and the Citizen. In his Foreign Affairs post on Kiobel, Moyn folds the ATS into this iconoclastic revision of human rights history, stating that the “ATS strategy” favored by American human rights lawyers “resulted in a narrow approach [i.e., a legal approach] that marginalized other options,” doing nothing “to address underlying political and economic problems.”  “Far better,” he opines,” to move onto other ways of protecting human rights – less centered on courts, less rushed for quick fix, less concerned with spectacular wrongs to individuals and more with structural evils, and less disconnected from social movements abroad.”  Moyn asserts that “[t]here is little evidence…that the wave of ATS litigation has put a dent in the world’s suffering,” though he provides no evidence to support this claim.

A brief review of the facts.  The Kiobel suit was brought as a putative class action, on behalf of numerous indigenous Nigerian plaintiffs who are members of an ethnic group called the Ogoni living in the Niger Delta region of Nigeria.  Ninety percent of Nigeria’s oil comes from the Niger Delta, and between approximately 1958 and 1993 more than 634 million barrels of oil, valued at US $5.2 billion (a conservative number based on Shell’s figures), were drawn from Ogoniland alone. The Niger Delta region, one of the richest bio-systems in the world, has been ecologically devastated by the oil extraction that has taken place, making Nigeria a prime example of the “resource curse.”   A recent environmental assessment of Ogoniland carried out by the United Nations Environment Program (and funded by Shell) concluded that “[t]he environmental restoration of Ogoniland could prove to be the world’s most wide-ranging and long term oil clean-up exercise ever undertaken” if restoration of the land to full, productive health is to be achieved. Despite efforts made by the government after the return to democracy, the Niger Delta today is a zone of conflict fueled by oil company greed, disaffected youth violence and criminality, government corruption, and grinding poverty.

Before there was Kiobel litigation, a social movement emerged to challenge Shell.  Inspired by the revolutionary (and largely nonviolent) cascade of independence movements that brought about the collapse of the Soviet Union, the Ogoni were led in 1990 by the brilliant writer and activist, Ken Saro-Wiwa, to form a vibrant social movement under the umbrella organization of Movement for the Survival of the Ogoni People (MOSOP).  By this time, Nigeria had nationalized the oil industry and oil extraction was done through joint ventures with foreign oil companies.  In 1993, three-fifths of the Ogoni people (numbered at the time around 500,000) participated in various anti-Shell, anti-governmental demonstrations.  As a result of the MOSOP’s actions, Shell withdrew from Ogoniland, but never decommissioned its oil facilities there, leaving the community vulnerable to further environmental harm from vandalism, theft, and breakage.  The military dictatorship led by General Abacha arrested nine of MOSOP’s leaders, including Ken Saro-Wiwa, and executed them after flagrantly unjust trial, in defiance of world opinion.

In all, four ATS lawsuits were filed as a result of the Ogoni people’s struggle, with Kiobel being the last and, based on outcomes, least successful.  The three other ATS cases (“the Wiwa litigation”) were brought by the Center for Constitutional Rights, together with EarthRights International, on behalf of Ken Saro-Wiwa’s son and several other Ogoni who were killed or tortured in the course of reprisals against MOSOP.  In 2009, Shell settled the Wiwa litigation for $15.5 million, rather than proceed to a trial that would have exposed them to more negative publicity.  Five million of that settlement money was to go to a trust fund for the Ogoni people.

Did the ATS marginalize other options? MOSOP was a thriving, nonviolent social movement, powerful enough to drive Shell from its land if not powerful enough to force Shell to restore the environment.  Its tremendous social energy was not drained away by time-consuming and expensive litigation that tilted at far off windmills in the United States.  ATS litigation was only initiated after a robust and genuinely grassroots social movement was violently quashed and decapitated by a Nigerian military dictatorship.

Can ATS litigation be considered a quick fix? The Ogoni delivered their Bill of Rights in 1990. Ken Saro-Wiwa and the rest of the “Ogoni 9” were executed in November, 1995. The incidents described in the Kiobel complaint took place in 1993 to 1999. The first complaint in the Wiwa litigation was filed in 1996; but the Wiwa cases were not settled until 2009.

What about corporate social responsibility?  Can it do more than the ATS in untangling the deadly Gordian knot of power, oil, and greed that fuels violence in the Niger Delta?  After Saro-Wiwa’s execution, Shell made remarks suggesting that it had been “shaken” by the turn of events and was determined to change its ways. In the late 1990’s, Shell undertook efforts, centered around community development activities, to repair relations with the Ogoni, now furthered traumatized by violence on top of ecocide; however, Shell, in a tone-deaf move, released a Plan for Action in Ogoniland to the media, without consulting with the Ogoni on the plan’s contents or informing them beforehand of its existence. In 1997, a shareholder resolution requesting that the company be more transparent in its social and environmental responsibilities was put forward at the Annual General Meeting.  That this resolution received 10% of votes before going down to defeat was considered great progress in corporate social responsibility.

What the ATS litigation did do was subject Shell to discovery further revealing that the military crackdown was at its behest and that it was possibly complicit in the execution of Ken Saro-Wiwa.  It was such evidence that prompted Shell to settle the litigation on the eve of trial and such evidence also likely accounts for Shell’s  newfound openness to corporate responsibility. If litigation has held an appeal for MOSOP and other groups in the Niger Delta region, it is because litigation seemed to work to keep pressure on Shell and the Nigerian government. In 2008 and 2009, Ogoniland was ravaged by two oil spills in the Bodo creek fishing village.  Shell accepted responsibility in principle, but disagreed about the extent of the damage and attendant liability.  A spokesman for the affected community asserted, “This is one of the most devastating oil spills the world has ever seen and yet it had gone almost unnoticed until we received instructions to bring about a claim against Shell in [the UK].”  In close temporal relation to the Wiwa litigation, Shell agreed to fund the UNEP’s environmental study of Ogoniland.  Though its recommendations have yet to be implemented, this study is perhaps the most important step yet taken in redressing Ogoni grievances.  It seems reasonable to hypothesize that ATS litigation (and the other litigation in the UK and the Netherlands) was a factor, among others, that helped to bring it about.

Human rights activists, including lawyers, do not have to be reminded that litigation is just one tool in the toolbox and that it is no panacea.  One of the irksome things about Moyn’s supremely confident dismissal of the standard history of human rights is that it seems hatched at some remove from actual human rights practice.  In a telling interview with the co-editor of the Journal of Human Rights Practice, Moyn recalls meeting with the staff of a leading human rights organization..  In the way he relates his encounter one catches a whiff of a colonial anthropologist meeting with the “natives:” “But when you really encounter them in person you get a strong sense of just how flexible and realistic they are…So getting a sense that they are very open to this sort of message was a pretty big revelation…”

At least in the context of the Ogoni people’s struggles, Moyn’s criticisms of the ATS are facile. Even a cursory review shows that ATS litigation was part of a long-haul, multi-pronged effort that included grassroots activism, international advocacy, mediation, governmental reform, corporate social responsibility, and even occasionally violence.  It may be that in the future a serious assessment of the role of the ATS in the Niger Delta concludes that litigation made things worse instead of better, but prima facie the opposite seems to be true.  In any event, we need that serious assessment.

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These are very interesting and apt points.  I am struck by the fact that lawsuits led by counsel other than counsel for the losing cases (Alvarez-Machain, Sosa, Kiobel) did so much better (as you point out, e.g., Wiwa). I have also noted how even the Amici briefs are controlled by lead counsel, that the Court does not get some of the best arguments and precedent before it (and, perhaps, does not even care — since Kiobel is an example of a case misreading the Restatement’s Sec. 403 [which actually does not reflect international law despite the assertion that it does], which expressly does not apply to section 404, etc., etc. — and Moxon and Bolchos had extraterritorial aspects that the majority opinion ignores — such as the fact that foreign flag vessesls are the equivalent of foreign territory wherever the happen to end up and the fact that a violation of international law can take place elsewhere in some cases but the vessel ends up in a U.S. port).
Despite the shocking 9-0 ultimate vote, errors must be addressed and future options must be identified.


I should also make clear, however, that ultimately the vast majority of the Justices opted for partial extraterritoriality but no majority exists concerning the proper criteria or tests.  Justice Kennedy is correct that the “open … reach” of the ATS has survived, but he offers no significant guidance concerning tests and criteria and notes that there are significant questions remaining (i.e., disagreement).
For these reasons, ATS litigation remains a “tool.”