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November 10, 2015
Posted by Susan Farbstein
Twenty years ago today, Ken Saro-Wiwa and the other members of the Ogoni Nine were hanged in Port Haurcourt, Nigeria. Saro-Wiwa was a writer, environmental activist, and outspoken critic of Shell’s destruction of Ogoniland. He accused Shell of waging an ecological war against the Ogoni, co-founding the Movement for the Survival of the Ogoni People (MOSOP) to protect their rights and protest the devastating effects of Shell’s oil exploitation on their land.
In response, Nigeria’s military junta falsely accused him of murder and then created a special tribunal — which violated international due process standards — to prosecute and sentence him to death. In 2009, Shell agreed to pay $15.5 million to settle a case in which it was accused of collaborating with the Nigerian government in Saro-Wiwa’s execution.
On this anniversary, it would be nice to document how much has changed in the Niger Delta over the last two decades — how pollution from oil extraction has been reduced, how Shell has cleaned up past spills, how the Ogoni no longer suffer from poisoned waterways, fishing areas, and surface soil. Unfortunately that article can’t be written, because the devastation continues.
Although Shell was forced out of Ogoniland in 1993, it remains responsible for leakages, gas flaring, and oil blow-outs from approximately 5,000 kilometers of its pipelines that still run through the area. Hundreds of spills occur annually across this old and poorly maintained pipeline network, ruining drinking wells, agricultural fields, forests, and fisheries that the Ogoni depend on for their food and their livelihood. Shell acknowledges spills leading to more than 55 million liters of oil leaked in the Delta in recent years — and these numbers likely understate the true scale of the damage. (By comparison, on average there were 10 spills annually across the whole of Europe from 1971 to 2011; the infamous 1989 Exxon Valdez spill in Alaska accounted for approximately 41 million liters lost.)
The most comprehensive study on the impact of oil pollution in Niger Delta, produced by the United Nations Environment Programme (UNEP) in 2011, documented appalling levels of ongoing contamination. The UNEP also found that Shell had failed to properly clean up spills at more than 60 locations across Ogoniland. In response, Shell assured its critics that, since 2011, it has addressed the pollution identified in the UNEP report.
But a recent study by Amnesty International (AI) and the Centre for the Environment, Human Rights and Development (CEHRD) flatly contradicts Shell’s claims. In locations where Shell asserts it has cleaned up and remediated past spills — and where Nigerian government regulators have certified sites as clean — AI and CEHRD found water-logged areas with an oily sheen, land that was black and oil-encrusted, and soil that was soaked and visibly contaminated with crude. They conclude that Shell has not improved its methodology for addressing oil spills and still fails to adequately clean up its pollution.
To truly commemorate Saro-Wiwa, the struggle for social and environmental justice and a clean Niger Delta must continue. Nigerian President Muhammadu Buhari’s recent pledge to fast-track implementation of the UNEP’s recommendations is commendable but insufficient. Shell must improve its approach to oil spill remediation, properly clean up the Delta, and compensate communities for past harms. And the Nigerian government must create an effective oversight, regulation, and accountability process for the oil industry, one that addresses the underlying causes of pollution in the Delta, including the maintenance of oil infrastructure and a re-examination of the spill investigation process.
Shell’s unapologetic attitude and unchanged behavior are an insult to human rights and all that Ken Saro-Wiwa represents. The Nigerian state and Shell might have hoped that killing Saro-Wiwa and his colleagues would end the struggle. We owe it to him to prove them wrong.
Susan and a team of clinical students participated in litigating Wiwa v. Shell, which charged Shell with complicity in the killing of Ken Saro-Wiwa and other non-violent Nigerian activists, and successfully settled in 2009.
February 23, 2011
Posted by Susan Farbstein
Pfizer has settled an Alien Tort Statute (ATS) suit brought by Nigerian plaintiffs who alleged that the company violated international law by testing an experimental drug on children, without their parents’ consent or knowledge, and without informing families that another (non-experimental) drug was available. The case had already led to important legal developments, including a Second Circuit ruling in 2009 which recognized the existence of a norm of customary international law prohibiting medical experimentation on non-consenting human subjects.
After nearly 15 years of litigation, the timing of the settlement is striking—it comes on the heels of the Second Circuit’s recent decision in Kiobel ruling that corporations cannot be liable under the ATS. Although the terms of the settlement are confidential, we do know that it allows a maximum of $175,000 per child to those who can demonstrate death or permanent disability due to the 1996 trials of the drug Trovan, intended to treat meningitis. These payments would come from a $35 million trust fund established as a part of a prior settlement with the Kano state government in Nigeria, where the drug testing occurred. Additional information is available here.
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