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Slippery Independence

Since independence from Britain in 1960, Nigeria has been blessed and cursed by its abundance of high quality crude oil. Blessed because oil provides 99 percent of the country’s revenue; cursed because oil extraction has been marred by spills of blood. Oil has propped brutal military dictatorships and lined the pockets of corrupt politicians. If the revenue could be distributed equitably, the country could experience significant poverty reduction and economic growth. Sadly, similar experiences from around the world suggest that nothing of the sort will happen.

Oral argument is slated to begin in the historic case Wiwa v Royal Dutch Shell for environmental degradation and gross human rights violations in the Niger Delta region of Nigeria. The proceedings will occur in Federal Court at the Southern District of New York in June 2009.

Both Royal Dutch Shell and Chevron-Texaco have been accused of being the greatest offenders. Writer, activist, and businessman Ken-Saro Wiwa was executed in 1995 for his involvement in protecting the homeland of the Ogoni people against corporate abuse. Evidence strongly suggests that Shell at least tacitly approved of the repression of Saro-Wiwa’s protest movement, and possibly even his execution. His cause is being championed by his son, Ken Wiwa, and a host of human rights groups. (For more background, visit my earlier post here.)

Alien Tort Statute

The case will turn on an interpretation of the Alien Tort Statute, among others, a law enacted two hundred years ago which was rediscovered in the 1970s. EarthRights International and the Center for Constitutional Rights will represent the plaintiffs. Ken Saro-Wiwa’s cause has also been supported by the PEN American Center Freedom to Write Project.

This is an important case which will determine whether a company with billions of dollars can be brought to justice by its victims. Earlier cases argued under the Alien Tort Statute such as the UnoCal case in Burma and the Talisman oil case in Sudan have met with mixed results.

Popcorn and Oil

For a compelling view of the issues at stake in the Saro-Wiwa trial, check out Crude, a documentary that will be screened at the Human Rights Watch Film Festival. Crude examines the role of one of the other controversial actors in the Niger Delta region, Chevron-Texaco, several thousands of miles away from Nigeria in the rainforests of Ecuador. There, too, victims have suffered from flared oil wells, spills, sludge, and extrajudicial killings against innocent locals. Mysterious illnesses are appearing at an alarming rate and the victims, often indigenous Indians, are scared.

Crude captures the pitfalls of corporate greed. The film is a shocking revelation of the extent to which legal procedural tactics can determine the outcome of entire ecosystems and communities. After fiercely fighting a $27 billion law suit in U.S. courts, Chevron-Texaco removed the case to Ecuador, where it hoped to more easily grease the wheels of justice. But when the courageous Ecuadorian lawyer Pablo Fajardo teamed up with international plantiff’s lawyers, things got nasty.

Chevron’s lawyers in the film accuse the plaintiffs of litigating for a share of the spoils, while they themselves line their pockets with Chevron’s cash. Both sides accuse each other, in other words, of being greedy. But to worry about their squabbles would miss the point.

Who cares if a greedy plantiff’s lawyer fights this battle, I say, as long as the final aim of cleaning up the environment and restoring a community to health is achieved? Even stranger, Chevron claims that the state run oil refinery caused the mess, but does not dispute that a mess was caused. In the U.S., Chevron could join the other polluter to the case and force it to pay up. The victims would receive compensation either way in the event of a favorable judgment. Blame would be apportioned afterwards. In Ecuador that does not seem to be how the system works. (For such a legal film, a few simple explanations in Crude of the procedural steps in each legal system could quickly bring the viewer up to speed. They are frustratingly lacking.)

Whichever side you agree with, it is clear that only headstrong perseverance and arrogance will lead to victory in Ecuador. And it helps a great deal if you have 30,000 other voices from the local community cheering you on in the courtroom. The rockstar Sting and his wife Trudie have since signed on to the cause with his non-profit Rainforest Foundation, and Ecuadorean President Correa has expressed his sympathy. The slick waters of this delta may be clearing.

Lawyers still estimate that the case in Ecuador may drag on for another ten years in the courts. Such an outcome would represent a manifest failure of the law to further the cause of justice.

–Deji Olukotun

Photo credits (c): Juan Diego Pérez (top), David Gilbert (bottom)

At this very moment, an operation is being carried out by the Nigerian military in the Niger Delta region. To learn more, visit the Nigeria watchdog SaharaReporters.net.

For more about the Saro-Wiwa trial, visit the Center for Constitutional Rights.

Check out crude at the Human Rights Watch Film Festival in New York.