The Government announced yesterday that it will seek a place for Britain on the UN’s Human Rights Council.
It has not improved its chances by intervening in the US Supreme Court to protect companies accused of complicity in torture, rape and genocide. It has asked the court, in a case against Shell, to restrict the only law that makes multinationals accountable, allowing actions to be brought in the US by victims who cannot sue their wrongdoers anywhere else.
Through historical oversight, corporations cannot be prosecuted for the international crimes that some commit, often through local subsidiaries, by killing or enslaving native people. Royal Dutch Shell itself was accused of complicity with the Abacha regime in Nigeria which executed Ken Saro-Wiwa and others who protested against pipeline construction; other multinationals (Unocal in Burma, for example) have been accused of paying local militias to persecute and kill tribespeople who stand in the way of their profits. The only redress is to sue in the US under ATCA – the 1789 Alien Tort Claims Act – a unique statute which permits victims from anywhere in the world to sue any company or person for a wrong “committed in violation of the law of the nations”.
This Act has become the only effective legal recourse against multinationals which incite or sponsor torture, genocide, murder or a breach of the Geneva Conventions. But earlier this year, the UK Government filed an “amicus” brief which asked the US Supreme Court to stop the Act being used against corporations based outside the US – which would prevent action not only against Shell, but against most other multinationals (many based in tax havens). It hired four counsel from a small and expensive Washington firm which specialises in anti-trust cases, not in human rights. In return for many thousands of taxpayer pounds, this firm filed a brief on behalf of Britain and the Netherlands, urging that this beneficent law should be confined to US nationals.
The brief begins by asserting the UK Government’s “firm belief that corporations should not be able to act with impunity vis-à-vis human rights issues”, and then proceeds to argue that multinationals should have exactly that – impunity. Civil actions should be brought, it argues, in the country where the wrong occurred – despite the obvious fact that such wrongs are perpetrated in certain countries precisely because they have no effective local law. That is why the greatest deterrent to inhumane conduct by multinationals in many developing countries is the prospect of being sued in the US under ATCA. There are 150 cases of very serious human rights abuses by corporations currently filed in the US, and the UK wants most of them thrown out of court without a hearing.
The UK argues that although all states have power to put on criminal trial any individual torturer or mass murderer, they cannot allow foreigners or corporations to be sued for damages in their local courts because that would be “a breach of international comity”. This is illogical because international law identifies a class of “crimes against humanity” so heinous they are unforgivable: if they can be the subject of criminal action in any state, it follows they must be capable of civil action for damages as well. If companies cannot be prosecuted for international crimes, all the more reason they should be sued for damages. The profits of their illegal conduct should be re-distributed to their victims.
The UK Government never answers this argument. Instead, it complains that it’s too easy for poor people to sue rich corporations in the US, because of contingency fees (which give the poor access to the courts) and broad discovery rules (which enable the poor to discover the truth). It is very expensive, it complains, for defendant multinationals to obtain evidence from far-away places – although that is where they have chosen to do business.
The final argument is the most absurd: “it has been the longstanding view of the UK Government that the most effective way to ensure that there is no impunity for human rights abuses” is “by seeking international consensus and co-operation through treaties rather than by recourse to private civil litigation in distant courts”. New York courts are not “distant” and “international consensus and co-operation” at the UN has brought only “the Global Compact”, a set of well-meaning but worthless words which some multinationals sign for PR purposes. The OECD guidelines are exactly that: guidelines without teeth, other than for gnashing. The UN’s “principles on business and human rights” has no teeth and no gums. The only language that would-be corporate criminals understand is the law – the only deterrent the prospect of being sued for many millions under ATCA.
So the brief filed by the UK in the US Supreme Court profoundly misunderstands the difficulties in human rights enforcement. Who authorised it? Mr Hague, some junior minister or (which would be a serious breach of the ministerial responsibility) no minister at all? Did Shell ask the Government to intervene? Was Cabinet told that the UK was seeking to demolish a vital human rights safeguard? Do the Lib Dems who affect concern for human rights really want impunity for British businesses if they behave with colonial-era brutality in former colonies?
The UK’s submission to the Supreme Court whinges on about ATCA, because it dares to hold multinationals liable for rape and murder. But the US has done the right thing by giving victims an opportunity for redress. Instead of trying to demolish ATCA, the UK should enact its own version of a law that has helped, more than any other, to end corporate impunity for crimes against humanity.
Geoffrey Robertson QC’s latest book is ‘Mullahs Without Mercy: Human Rights & Nuclear Weapons’