A Treaty to End Corporate Immunity?

Claimant Eric Dooh shows the crude oil that has damaged the banks of the creek through his village in Ogoniland, Nigeria.

By Hans Wetzels
UNITED NATIONS, Apr 25 2019 – When Ecuadorean diplomat Luis Gallegos first proposed a “Binding Treaty on Business and Human Rights,” many countries and environmental activists welcomed the idea with open arms.

Backed by South Africa, Mr. Gallegos urged the UN Human Rights Council in Geneva, Switzerland, to immediately begin negotiations to end human rights violations and environmental damage by transnational corporations.

In October 2018, 94 countries drew up a draft text for the binding treaty, which could address the issue of the complex global supply chain that currently makes it difficult to determine who is responsible for environmental damage or human rights violations. It should also give victims access to justice.

For two decades, Mr. Gallegos’s birth place of Ecuador waged a court battle to hold Chevron (formerly Texaco), a US-based multinational, accountable for oil spills and for allegedly dumping 16 billion gallons of toxic waste into waterways and open pits in the country’s Amazon jungle, affecting 30,000 indigenous people and campesinos in the area. The South American country tried without success to seek redress in American, Ecuadorian, Brazilian and Canadian courts.

130 oil spills in Nigeria’s Niger Delta in 2015 were reported by Amnesty International

Chevron in turn dragged Ecuador before the Permanent Court of Arbitration in The Hague, Netherlands, for violating a 1997 bilateral investment treaty, and was awarded a hefty $112 million. A binding treaty on environmental damage might have prevented this kind of outcome.

Currently, there are voluntary guidelines for international businesses. One such set of guidelines is the United Nations Guiding Principles on Business and Human Rights, which instruct corporations to respect human rights but leaves en-forcement in the hands of states.

In high-risk sectors such as agriculture, mining and the garment industry, most companies disregard these principles, says Corporate Human Rights Benchmark, a newly established research initiative funded by the Dutch, British and Swiss governments.

Multinationals easily avoid prosecution because no international legal framework exists to hold them accountable, Mr. Gallegos argues. A majority of UN member states and the African Union concur.

Ecuador is not the only country whose citizens or government is trying to keep multinationals in check. In 2016, some 40,000 Nigerian fishermen took Royal Dutch Shell, an oil company, to a British court over oil spillage in the Niger Delta region.

But the court ruled that a conflict with the company’s Nigerian subsidiary, Shell Petroleum Development Company (SPDC), could not be adjudicated in the United Kingdom.

Amnesty International reported in 2016 that SPDC’s operations in Nigeria’s Niger Delta region in 2015 alone had resulted in about 130 oil spills.

“There are few places on the planet where the impact of multinational companies on the environment are more visible than in the Niger Delta,” Nigerian diplomat Hashimu Abubakar told the Human Rights Council in Geneva.

After several rounds of consultations, the first draft of a Binding Treaty on Business and Human Rights was finally presented to the Human Rights Council in July 2018, raising hopes of adoption.

“Big multinationals always use their legal and financial firepower at the cost of people who don’t have a lot of resources,” Nigerian activist Esther Kiobel told Africa Renewal.

Ms. Kiobel is the widow of Dr. Barinem Kiobel, a former government official and one of the nine environmental campaigners executed by hanging in 1995 by Nigeria’s military government for protesting against oil pollution in the Niger Delta. She was a plaintiff in a landmark suit against the oil giant Shell.

“A new international treaty might give me the opportunity to get compensation and rehabilitate the name of my late husband,” adds Ms. Kiobel.

After fleeing Nigeria and gaining US citizenship, Ms. Kiobel took Shell before an American federal court in 2002. After years of litigation, the court dismissed the case in 2013, claiming that a conflict between a Nigerian business, the SPDC, and Nigerian claimants cannot be heard in an American court.

Undeterred, Ms. Kiobel has now filed a civil case in a Dutch court. “At this point we’re waiting for the Dutch court to set a date. Instead of facing me in court, they have been trying to prevent this case from even being heard before a judge,” says Ms. Kiobel.

Although the idea of a treaty draws huge international support, bringing EU countries and others in the West on board may be difficult if not impossible. So far, both powerful players in international diplomacy have yet to back the effort.

European diplomats are concerned that binding obligations for international business could harm international trade, documents retrieved in Brussels through a Freedom of Information request reveal.

“We were a little surprised by the vigour of European resistance against this treaty,” says Jane Nalunga of the Uganda-based nongovernmental organization (NGO) Southern and Eastern Africa Trade Information and Negotiations Institute (SEATINI).

SEATINI was established in 1996 to lobby policy makers and consult with western NGOs, the UN and other international organisations to push an agenda of sustainable and inclusive development.

“The problem is that African governments… fear that laws on human rights or the environment might chase away international investors,” said Ms. Nalunga.

“In Uganda a foreign company needs to take an environmental assessment. But the outcome is not legally binding. International legislation could make these assessments mandatory on the international level, thus ending the dynamic of African states competing for investment and neglecting their human rights responsibilities.”

The Binding Treaty on Business and Human Rights will not immediately lead to the land of milk and honey, argues Lucas Roorda, a policy adviser at the College for Human Rights in Utrecht, the Netherlands. Mr. Roorda wrote a dissertation on the liability of multinational corporations.

“A set of international rules would of course directly impact cases like Kiobel versus Shell,” he says. “But there’s also a lot of wishful thinking around this treaty. International rules can establish better access to justice for activists but wouldn’t solve the power discrepancy between multinationals and poor communities.”

He doubts that a full-fledged human rights court will be realized through international negotiations. “Setting up an international tribunal for human rights abuses costs a lot of money, while rich countries in Europe and the US are opposed to such a tribunal.”

Mr. Roorda prefers a treaty that lays out international norms that member states would then be obliged to legally adopt, adding, “That could actually make it easier to bring a case involving the Nigerian subsidiary of Shell before a Dutch court.”

While Ecuador’s treaty would make rules binding on an international level (through a tribunal, fines or some other mechanism), Mr. Roorda would like member states to adopt international rules agreed upon in the treaty but not create an international court.

The long-term impact of international legislation goes beyond the establishment of a tribunal, explains Ms. Nalunga. “Besides adjusting the direct power imbalance between international investors and the poor communities in which they operate, this treaty could end the discrepancy between trade agreements and human rights.”

Environmental and human rights activists and countries experiencing the impact of the activities of some multinationals may debate the best way to achieve the goal of holding multinationals accountable. What is not debatable is the need to end impunity.

*Africa Renewal is published in English and French by the Strategic Communications Division of the United Nations Department of Global Communications. Its contents do not necessarily reflect the views of the United Nations or the publication’s.

Women and Girls “Preyed on as the Spoils of War”

A young girl whose family fled the Boko Haram insurgency stands in front of a tent in a camp for internally displaced persons in Maiduguri, Nigeria. Boko Haram has abducted thousands of girls and forced them into unwanted marriages and enslavement. Credit: Sam Olukoya/IPS

By Sam Olukoya
MAIDUGURI, Nigeria, Apr 25 2019 – “They forcefully took us away and kept us like prisoners,” Lydia Musa, a former Boko Haram captive who was abducted at the age of 14 during an attack on her village in Gwoza, in Nigeria’s north eastern Borno State, tells IPS. Musa and two other underaged girls were captured and forced to marry Boko Haram fighters in spite of their protests that they were too young to marry.

“You must marry whether you like it or not they told us as they pointed guns at us,” the now 16-year-old girl recalls.

Boko Haram’s violation of the rights of women and children paints a larger picture of human trafficking, forced marriages and enslavement in Nigeria.

As the extremist group enters the 10th year of its insurgency, it remains formidable enough to abduct women and children at will, continuing “to prey on women and girls as spoils of war,” Anietie Ewang, Nigeria country researcher at Human Rights Watch, said in a statement.

This West African nation has the highest incidence of Africans being trafficked through the Sahara Desert and the Mediterranean Sea to Europe. The north and north eastern parts of the country, where Boko Haram is active, have high incidences of forced marriages, while across the country there are frequent cases of young girls being ‘traded’ as modern day slaves.

The group, whose name means ‘Western education is forbidden’, is reputed to be among the five-deadliest terror groups in the world. It has been involved in a violent campaign for strict Islamic rule in north east Nigeria and in parts of the neighbouring states of Cameroon, Chad and Niger. More than 20,000 people have been killed since the start of the insurgency in 2009.

Boko Haram is also involved in the kidnapping, trafficking and enslavement of children and women. Hundreds of women and children have been abducted since the group’s insurgency started. But Boko Haram’s most well-known abduction occurred in April 2014, when 276 female students were taken away from their dormitory at the Government Secondary School, Chibok, in Borno State.

The abduction started a global campaign #BringBackOurGirls.

A few months after the Chibok girls were abducted, Boko Haram’s leader, Abubakar Shekau, said he would sell them. “I am the one who captured all those girls and I will sell all of them,” he said in an online video in which he justified human slavery. “Slavery is allowed in my religion and I shall capture people and make them slaves.”

Consequently there have been other mass abductions of children in the region since the Chibok incident. In March 2015, Boko Haram fighters abducted more than 300 children from Zanna Mobarti Primary School in Damasak; while 116 female students from the Government Girls Science and Technical College, in Dapchi, Yobe State, were abducted in February 2018 during an attack on the school.

“The way Boko Haram hold women and children against their will is by itself a form of slavery,” Rotimi Olawale of the group Bring Back Our Girls (BBOG) tells IPS. The group is involved in a powerful campaign for the speedy and effective search and rescue of the Chibok girls and other abducted women and children.

Olawale says Boko Haram is also using captives, like the Chibok girls, as “valuable bargaining chips” to collect ransoms and secure the release of their members held in Nigerian prisons. While many of the Chibok girls are still missing five years after their abduction, others escaped or were released by Boko Haram in deals made with the Nigerian government. But 112 girls are reportedly still missing.

In an apparent reference to Boko Haram, the United Nations Children’s Fund (UNICEF) says that since 2012, non-state armed groups in north east Nigeria have recruited and used children as combatants and non-combatants, raped and forced girls to marry and committed other grave violations against children.

Accounts by others who escaped from Boko Haram’s captivity confirm this.

Ali Mohammed is also a former Boko Haram captive. He tells IPS that while in captivity he saw Boko Haram members using captive girls as sex slaves. “At night they freely go to where the girls are kept to pick them for sex,” he explains.

Another former Boko Haram captive who preferred to be called Halima says male children born through sexual slavery are being breed to be the new generation of Boko Haram fighters. Halima, who gave birth to twins (a boy and a girl), tells IPS how Boko Haram members always celebrate when a baby boy is born in their camps.

“Once they realise it is a male baby they will start shooting their guns into the air in happy mood saying that a new leader has been born,” she says.

“After I delivered the babies, they carried the male in jubilation and were chatting Allah Akbar, in contrast, they did not show any joy with the female, they did not even touch her.”

Boko Haram’s abduction of young persons are in part aimed at turning them into fighters. UNICEF says between 2013 and 2017 more than 3,500 children, most of whom were aged 13 to 17, were recruited by non-state armed groups who used them in the armed conflict in north east Nigeria. UNICEF says the true figures are likely to be higher because its figures are only of those cases that have been verified.

Musa confirms that while in captivity she saw abducted boys being trained to be Boko Haram fighters. “In the mornings, they normally teach them how to shoot guns and carry out attacks,” she says, adding that some of the boys were just 10 years old.

Boko Haram is also known to train children to become suicide bombers. A UNICEF report in 2017, says between January and August of that year, 83 children, mainly girls, were used by Boko Haram as suicide bombers. The UN’s children agency said this figure was four times higher than it was for 2016.

Attempts to use legislation to address such abuses as child marriage, sexual abuse, trafficking and abduction have failed in the past. In 2003, Nigeria adopted the Child Rights Act as a legal documentation to protect children from these abuses. Currently the country’s constitution does not have a minimum age of marriage. Though the Child Rights Act set the marriageable age as 18, it failed in part because a number of Nigeria’s 36 states refused to domesticate the law.

“It was also a failure in states where it was adopted because it only existed on paper and was not enforced,” Betty Abah, a women and children’s rights activist, tells IPS.

In 2016, Nigeria’s male-dominated senate voted against a Gender and Equal Opportunities Bill. The bill in part prohibits trafficking, sexual abuse and exploitation of women and children. The bill, which also prohibits forced marriage, set 18 as the minimum legal age for marriage.

According to UNICEF, 43 percent of girls in Nigeria are married off before they turn 18. Some of the lawmakers who voted against the bill cited such grounds as their religion which permitted underaged marriage.

“It sends a very bad signal that we have a long way to go if those who are supposed to make laws to protect women and children feel these laws are not necessary,” Abah says.

In the meantime, Musa, may have fled the captivity of Boko Haram but she is too terrified to return home. She now lives in Maiduguri, which is also in Borno State and about 130 kms from Gwoza.

She tells IPS she is home sick. “I am always praying for the crisis to end so that I can return home, for now I cant go back because I don’t want to risk being taken away by Boko Haram again.”


—————————————–The Global Sustainability Network ( GSN ) http://gsngoal8.com/ is pursuing the United Nations Sustainable Development Goal number 8 with a special emphasis on Goal 8.7 which ‘takes immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms’.

The origins of the GSN come from the endeavours of the Joint Declaration of Religious Leaders signed on 2 December 2014. Religious leaders of various faiths, gathered to work together “to defend the dignity and freedom of the human being against the extreme forms of the globalization of indifference, such us exploitation, forced labour, prostitution, human trafficking” and so forth.