Rio Tinto revealed as lobbying in human rights case

Published by MAC on 2014-04-08
Source: Statement, Guardian

FOI request reveals UK government backed Shell and Rio Tinto in human rights court cases after companies lobbied for support

CORE & Amnesty International press release

6 April 2014

The oil giant Shell and mining multinational Rio Tinto lobbied the UK government for support against human rights cases in the US Supreme Court, newly-revealed government documents show.

The documents were obtained by CORE, a network of human rights, development and environmental NGOs, including Amnesty International UK and Friends of the Earth, after a Freedom of Information request was lodged in July 2012. The request related to the UK government's two interventions in Kiobel-v-Shell (2012) a case against the oil company for its role in alleged crimes against humanity in the Ogoni region of the Niger Delta in Nigeria. The FOI documents also show that in 2011 the UK intervened in Sarei-v-Rio Tinto (2008) a case which alleged human rights abuses at a copper mine in Papua New Guinea.

The UK submitted briefs to the Supreme Court in an effort to secure a ruling preventing future similar actions in the US. The briefs did not deal with the substantive allegations in either case.

The interventions were made while the government was developing an "action plan" designed to implement the UN Guiding Principles on Business and Human Rights, a set of global standards which include a section devoted to access to remedy for victims of corporate abuse.

Marilyn Croser, Co-ordinator of CORE said: "The UK government has very serious questions to answer about these documents, which tell a sorry and startling tale of confused priorities and policy incoherence. While paying lip-service to corporate responsibility, the government was conniving with multinationals to reduce their exposure to litigation for the worst kind of abuses."

The 2011 intervention in the Sarei case, jointly undertaken by the UK-Australian governments, appears to have been made in response to a direct request from Rio Tinto. According to a Foreign Office official, the intervention was seen as "...an important opportunity to set a useful precedent for British businesses."

The government has previously refused to acknowledge that its intervention in the Kiobel case was made at the behest of Shell. However, a Foreign Office memo dated 11 January 2012 describes how the briefs were prompted by Shell and its lawyers:

"Although Shell have not formally requested intervention by HMG, their Counsel in the US has
approached the Counsel who drafted our Rio Tinto amicus brief asking for UK support. [The FCO] have also discussed the case with Shell in London and were asked if HMG would submit an amicus brief."

It was agreed that the Foreign Office would inform Shell of the decision to intervene but the issue was felt not to warrant a statement to parliament.

The UK subsequently decided to submit a second brief in Kiobel. In an effort to win the support of more countries, it was decided on this occasion that the intervention would be neutral, rather than supportive of Shell. When Shell was informed of the UK's intention, its Executive Vice President Andy Browne contacted No. 10 to demand an explanation and to push for a second supportive brief. The UK maintained a neutral stance, though no additional governments joined the brief.

Marilyn Croser added: "Unlike Rio Tinto and Shell, victims of corporate human rights abuses do not have a hotline to Whitehall. Governments agreed to address corporate impunity when they endorsed the UN Guiding Principles on Business and Human Rights in 2011, yet less than three years on the situation has deteriorated. The Kiobel ruling closed a vital route to remedy in the US, while in the UK changes to the court costs regime introduced in 2012 have made it more difficult to bring cases against multinationals. The UK government must now deliver on the promise made in its Business and Human Rights Implementation Plan, launched last September by William Hague and Vince Cable, to review the provision of remedy for corporate abuse victims."

According to Peter Frankental, Economic Relations Programme Director at Amnesty International UK: "When you consider the gross human rights violations that took place in Nigeria, including extra- judicial killings and torture, and the close relationship that Shell had with Nigeria's security forces, it is truly shocking that the UK Government saw fit to take Shell's side. In these David versus Goliath encounters, the UK has effectively shielded the interests of powerful companies at the expense of their alleged victims."

ENDS

Marilyn Croser
Coordinator
CORE
t. +44 207 354 7068 / +44 7791 580915
e. coordinator@corporate-responsibility.org
www.corporate-responsibility.org
@corecoalition

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Documents reveal extent of Shell and Rio Tinto lobbying in human rights case

Multinationals sought legal support from UK government to fight allegations of rights abuses in Nigeria and Papua New Guinea

Owen Bowcott, legal affairs correspondent

The Guardian

6 April 2014

The extent of lobbying conducted by Shell and Rio Tinto in seeking legal support from the UK government to dismiss allegations of human rights abuses has been revealed in internal memorandums released by the Foreign Office.

The documents, obtained by the Corporate Responsibility Coalition (Core) and Amnesty International, show the closeness of the relationship between the multinational corporations and UK government departments. They also show that UK government officials were privately worried about being seen to be promoting business interests over ethical trading principles.

More than 60 pages of documents and letters from 2011 and 2012 have been obtained through freedom of information requests. The documents relate to two high-profile court cases against the firms at the US supreme court over alleged complicity in mistreatment of protesters and people who lived near extraction operations.

The lead case, Kiobel v Royal Dutch Petroleum Company, related to the fate of anti-Shell protesters in the Ogoni region of Nigeria who were executed by Nigeria's military junta in 1995. The second case was brought by environmental activists under the US's Alien Tort Statute against Rio Tinto, claiming that residents in Bougainville, an autonomous region of Papua New Guinea, suffered from pollution linked to the company's copper and gold mine.

The US Alien Tort Statute dates back to 1789 but had been used to pursue claims over violations of international law. In a landmark judgment last year, the US supreme court limited the law's reach by declaring that it cannot be used to sue foreign organisations for supposed wrongdoing on foreign soil. The cases against Rio Tinto and Shell were consequently dismissed.

In the runup to the hearings in Washington, Shell and Rio Tinto approached the Foreign Office and other ministries in London seeking UK government backing.

The FCO initially intervened at the US supreme court with a legal brief supporting Shell, pointing out the damage to British business of "extraterritorial jurisdiction".

The FCO documents say the submission "was not at the behest of Shell". The FCO then added a second, neutral brief - against Shell's wishes - making similar points of law.

One memorandum states: "While our argument in this case is a matter of sound legal principle, the perception of critics of HMG's position on business and human rights will be that we are standing up for big business and against the human rights cause of ordinary people."

Marilyn Croser, of Core, said: "While paying lip-service to corporate responsibility, the government was conniving with multinationals to reduce their exposure to litigation for the worst kind of abuses."

Peter Frankental, economic relations programme director at Amnesty International UK, said: "In these David versus Goliath encounters, the UK has effectively shielded the interests of powerful companies at the expense of their alleged victims."

Responding to the claims, the FCO said: "The UK intervened in this case to clarify our position on the proper limits of the extraterritorial application of US law. The UK initially submitted a brief in support of Shell because we were not advised that a neutral brief was a possibility. As soon as we became aware, we replaced our original brief with a neutral brief, as the best way of representing our wider legal concerns without taking a position on the specific allegations in this case."

A Shell spokesman said: "Shell companies have the right and the responsibility to make our position known to governments on any matters which affect us, our employees, our customers, our shareholders or local communities in a manner which is in accordance with our values and business principles. We have always denied, in the strongest possible terms, the allegations made by the plaintiffs in the Kiobel case."

Rio Tinto declined to comment on the documents.