Can Petroleum Aid development?

Shell obtained permission to occupy (PTO) during the apartheid era, when black people were not permitted to obtain title deeds to land. A PTO holder once paid a token rent to the government; now it pays it to the Ingonyama Trust Board, which administers about 2.8m hectares of land in KwaZulu-Natal. The board says the agreement legally cannot be changed, despite the stations' profitability.

In the latter arbitration, Chevron claims that Ecuador had violated the Bilateral Investment Treaty (BIT) by letting the case advance.     Since that time, the BIT claimed jurisdiction over the case, and both parties are currently gathering evidence for proceedings on whether Chevron received a fair shake in Ecuador.

Under U.S. law, federal courts can issue discovery orders forcing parties involved in "foreign or international tribunals" to turn over information that would be useful in those proceedings.     The 5th Circuit, a New Orleans-based federal appeals court, found that Chevron cagily straddled this language to get Ecuador to cough up documents while protecting its own.

A federal judge quashed the subpoenas, deferring to Chevron's arguments that the BIT did not qualify as a "tribunal" - when Ecuador wanted evidence for it.

Once this surge in U.S. energy production was linked to a predicted boom in energy from Canada’s tar sands reserves, the results seemed obvious and uncontestable.  “North America,” he announced, “is becoming the new Middle East.”  Many other analysts have elaborated similarly on this rosy scenario, which now provides the foundation for Mitt Romney’s plan to achieve “energy independence” by 2020.

Perhaps the most notable example of this was Shell Oil’s costly failure to commence test drilling in the Alaskan Arctic.  After investing $4.5 billion and years of preparation, Shell was poised to drill five test wells this summer in the Beaufort and Chukchi Seas off Alaska’s northern and northwestern coasts.  However, on September 17th, a series of accidents and mishaps forced the company to announce that it would suspend operations until next summer — the only time when those waters are largely free of pack ice and so it is safer to drill.

Only after promising to take immensely costly protective measures and winning the support of the Obama administration — fearful of appearing to block “job creation” or “energy independence” during a presidential campaign — did the company obtain the necessary permits to proceed.  But some lawsuits remain in play and, with this latest delay, Shell’s opponents will have added time and ammunition.

Balkanising the country into North-South entities would undermine the central government in Abuja and bolster exploitation by these corporations.

Political analyst Olufemi Ijebuode says: “The upshot of this latest massacre is to destabilize the state of Nigeria by sowing sectarian divisions among the population. The killers may have been Boko Haram operatives, but Boko Haram is a proxy organization working on behalf of foreign powers.”

Campbell reiterated the significant observation: “The Mubi atrocity will feed a popular perception that the government can no longer ensure security in large parts of the country.”

With a population of 160 million, Nigeria is the known as the “giant of Africa”. In addition to crude oil, Nigeria has also the biggest reserves of natural gas among Sub-Saharan nations. Western energy companies are gearing up to tap this wealth even further in the coming years. Balkanising the country into North-South entities would undermine the central government in Abuja and bolster exploitation by these corporations.

However, some Nigerian analysts believe that the organization is being used by powerful external forces as a conduit for destabilizing Nigeria. Political analyst Olufemi Ijebuode says: “The upshot of this latest massacre is to destabilize the state of Nigeria by sowing sectarian divisions among the population. The killers may have been Boko Haram operatives, but Boko Haram is a proxy organization working on behalf of foreign powers.”

Campbell reiterated the significant observation: “The Mubi atrocity will feed a popular perception that the government can no longer ensure security in large parts of the country.”

But now, under these circumstances, Shell Oil claims it is not a person, subject to human law, but an entity possessing corporate immunities.

When Shell Oil walked into the U.S. Supreme Court building, this week, claiming that it is not responsible for the torture and murder of Nigerians in its oil fields in the Niger River Delta, the Dutch corporation had a friend in the courtroom: the Obama administration.

In February 2011, Donziger and his clients won the judgment after an eight-year trial in Ecuador marred by Chevron’s attempts to intimidate judges, offer bribes to Ecuador's government, fabricate scientific evidence, and sabotage the proceedings by filing dozens of frivolous motions and drowning the court in paper.  See here.

Chevron's legal team at Gibson Dunn openly markets a “template” to corporate defendants like Chevron facing large liabilities for environmental and human rights abuses.  The template, which the firm calls a “rescue operation” for clients in trouble, assumes that the wholesale intimidation of lawyers will allow clients to win via subterfuge what they can’t win on the merits. The Gibson Dunn “rescue” team – led by New York attorney Randy Mastro, Ted Boutrous, Andrea Neumann, Scott Edelman, and William Thomson – has used over 60 lawyers and billed Chevron hundreds of millions of dollars.  All their hard work has brought a fair amount of disrepute to their law firm as Chevron has suffered multiple courtroom setbacks around the world, dramatically increasing its liability and creating a shareholder rebellion against CEO Watson.  See here.

The Donziger suit explains that once Chevron realized it would lose the Ecuador trial based on the scientific evidence, the company turned to Gibson Dunn to try to render the Amazonian communities defenseless.

Ben Amunwa from Platform said, “Every payment made by oil companies in Nigeria should be linked to a clearly and accurately recorded transaction. If there is a significant risk that payments and contracts could go to armed groups or worsen conflict, the transactions should stop.”

Lawyers at EarthRights International, a Washington-based human rights law nonprofit, say they suspect that a new legal submission  - which was signed only by the U.S. Justice Department - reflects tensions inside the government on how to deal with multinational corporations do business in the U.S. Significantly, neither the State nor the Commerce Department signed on to the brief, despite their key roles in the case.

Filartiga v. Peña-Irala set a precedent for U.S. federal courts to punish non-U.S. citizens for acts committed outside the U.S. that violate international law or treaties to which the U.S. is a party. ATCA has brought almost 100 cases of international (often state-sanctioned) torture, rape and murder to U.S. federal courts to date.

No plaintiff against a corporation has won on ATCA grounds, although some have settled or plea bargained.