Guest post by Liesbeth Enneking

On January 30th, the The Hague district court rendered a verdict in five civil liability procedures that had been brought by a number of Nigerian farmers and the Dutch NGO Milieudefensie against Royal Dutch Shell (RDS) and its Nigerian subsidiary Shell Petroleum Development Company of Nigeria (SPDC). The reasons for these procedures were four incidents in which oil had spilled from SPDC-operated pipelines in the Nigerian Niger Delta, causing damage to the neighbouring farmers’ lands and fishponds, compromising their livelihoods. The plaintiffs had asked the court, among other things, for a declaratory judgment holding that the defendant companies had acted unlawfully towards them and could be held liable for the resulting damage.

In its ruling, the district court dismissed the plaintiffs’ claims in four of the five procedures. On the basis of the evidence presented to it, the court came to the conclusion that the oil spills were a result of sabotage, and not a result of faulty maintenance as had been argued by the plaintiffs. This, in combination with the fact that under Nigerian law the operator of an oil pipeline is not liable, in principle, for harm resulting from oil spills caused by sabotage, led the court to dismiss the claims against SPDC. It also dismissed the claims against the parent company RDS, finding that under Nigerian tort law a parent company does not in principle have a legal obligation to prevent its subsidiaries from causing harm to third parties except under special circumstances, which the court did not find to exist.

In the fifth procedure, however, which related to two oil spills in 2006 and 2007 from an abandoned wellhead near the village of Ikot Ada Udo, the The Hague district court did grant the plaintiff’s claims, albeit only in part, ordering SPDC to pay compensation for the resulting loss. Although starting from the assumption that the immediate cause of the oil spills had been sabotage, the court in this specific case decided that SPDC was liable for the damage caused to the plaintiff’s crops and fishponds as a result of the oil spills. According to the court, SPDC had been negligent in leaving behind the wellhead without adequately securing it, thus making it simple for saboteurs to unscrew its valves. This led the court to conclude that in failing to take sufficient precautions against the risk of sabotage, SPDC had violated the duty of care it owed to neighbouring farmers.

On this basis, the The Hague district court concluded last Wednesday that SPDC had committed the tort of negligence viz-à-viz one of the farmers involved in the dispute and can be held liable for the damage he has suffered as a result. The exact amount of the compensation that is to be paid will be established in follow-up proceedings for the determination of damages. Notwithstanding the fact that all other claims made by the Nigerian farmers and Milieudefensie in these procedures have been dismissed, including those against the parent company RDS, The Hague district court’s ruling is groundbreaking.

Over the past two decades, Western societies around the world have seen a trend towards transboundary civil liability cases against (the parent companies of) multinational corporations. These so-called ‘foreign direct liability cases’ are typically brought before Western society courts by citizens from developing host countries who have suffered harm as a result of those multinationals’ local activities there. The main reason for pursuing these claims is that the host country plaintiffs are typically unable to address and obtain redress for the harm caused to them in their own countries before their local courts.

The reasons for this include the fact that they may not expect to receive a fair trial by an impartial court locally, that the local legal system may not be up to dealing with such complicated claims, that the local subsidiary may have ceased to exist or that they seek to hold the parent company accountable so as to make a statement and perhaps bring about structural changes in the multinational’s environmental, health & safety, human rights and/or labour policies.

The vast majority of these cases have so far been pursued in the US, where an obscure 1789 federal statute called the Alien Tort Statute (ATS) has since its ‘rediscovery’ in the 1980s provided non-US citizens (‘aliens’) with a legal basis for bringing before US federal courts civil liability claims relating to international human rights violations perpetrated anywhere in the world. A high-profile example are the claims against a large group of multinationals including General Motors, IBM and DaimlerChrysler for their alleged involvement in human rights violations perpetrated by the South African Apartheid regime.

In the spring of 2013, the US Supreme Court is expected to consider a number of fundamental questions relating to the interpretation of the ATS, including its applicability in foreign direct liability cases, in the case of Kiobel v. Shell. This case relates to Shell’s alleged involvement in human rights violations perpetrated by the Nigerian military regime in the 1990s against environmental activists who were protesting against the environmental degradation caused by oil exploration activities in the Nigerian Niger Delta.

Also in other Western societies such as Australia, Canada and the UK courts have been asked to deal with claims by plaintiffs from developing host countries who seek to address and obtain redress for harm caused to people and planet there by multinationals that are incorporated or headquartered in or otherwise connected to the forum country. Due to a lack of an ATS-equivalent, these non-US foreign direct liability claims have typically been pursued on the basis of general principles of tort law and the tort of negligence in particular. Recent examples include the Probo Koala toxic waste dumping incident, which led not only to the criminal prosecution of the international oil trading company Trafigura in the Netherlands but also to the pursuit of civil claims against Trafigura before the London High Court by a large group of Ivorian citizens. A group action brought against Shell by 11,000 Nigerians from the Bodo community in relation to two serious oil-spill incidents in the Niger Delta is currently pending before that same court.

The foreign direct liability claims against Shell in which the The Hague district court has now rendered a verdict are the first to have been brought before a court in the Netherlands, a fact that makes them unique. Already in 2009, the court issued a ruling stating that it had jurisdiction not only over the Netherlands-based parent company but also over the Nigerian subsidiary, due to the close connection between the claims against both entities. Even regardless of their outcome, the fact that the plaintiffs have succeeded in bringing their foreign direct liability claims against RDS and SPDC before the The Hague district court is a novelty that may signal to other plaintiffs in potential future cases that it is possible to bring this type of claim in the Netherlands. This is especially important at a time when controversy surrounding the ATS is increasing, rendering it a less reliable basis for future foreign direct liability claims.

What is also novel is the fact that the The Hague district court has rendered a ruling on the merits of these claims. Of all of the foreign direct liability cases that have been brought in other Western societies so far, only a handful have reached the trial stage; the far majority have either been dismissed at a preliminary (pre-trial) stage or settled out of court. Of course, what makes this case particularly salient is the fact that SPDC, Shell’s Nigerian subsidiary, has been held liable by the court for having failed to exercise proper care towards (one of) the plaintiffs, and has been ordered to pay compensation for the damage suffered. Although this may not seem like such a sweeping result, it is one of the very first instances that a corporate entity within a multinational group, albeit a subsidiary, has been held liable in a foreign direct liability claim.

As regards the issue of parent company liability, which is particularly interesting from a legal perspective as it is a relatively novel and uncharted concept, the court leaves the door ajar. It has explicitly rejected Shell’s contention that the plaintiffs’ claims against the parent company RDS were manifestly prospectless. According to the court, a parent company may under certain circumstances be held liable under Nigerian (and English) tort law for harm caused to third parties by the activities of its subsidiaries, as is made clear by a recent case in the UK in which a parent company was held liable for asbestos-related injuries suffered by an employee of one of its subsidiaries. The court also considers, however, that under the particular circumstances of these claims (including the court’s conclusion that the spills were caused by sabotage), there is no reason to depart from the general principle in Nigerian (and English) tort law that there is no general duty of care to prevent others from suffering harm as a result of the activities of third parties.

All in all, even though the The Hague district court’s ruling in the Shell Nigeria case does not necessarily set a precedent in a strictly legal sense (due to the fact that it is a rendered by a Dutch court on the basis of Nigerian tort law), it is likely to have a broad impact. It represents another step on a path that leads from soft law standards on the social responsibilities of internationally operating business enterprises towards hard law consequences. Moreover, it will provide a signal to legal practitioners, legal academics and especially Western society courts dealing with this type of claims that the trend towards these foreign direct liability cases is a real one. After all, it shows that both subsidiaries and parent companies of Western society-based multinationals may be held accountable before courts in their home countries, not only in principle but also in practice. This message is likely to strike a note not only among lawyers, but also among multinationals, NGOs, policymakers and the general public in both developing host countries and Western society home countries.

Liesbeth Enneking is a postdoctoral research fellow at UCALL, Utrecht University’s Centre for Accountability and Liability Law. In May 2012, she defended her PhD thesis on foreign direct liability and the role of tort law in promoting international corporate social responsibility and accountability. The text of this blog will be incorporated into an article on this issue; please do not quote without prior permission from the author.

The ever-instructive UK Human Rights Blog (Rosalind English and commenter hp lehofer) reports on an illuminating series of cases, all deriving from one case in Austria. (I should say at once that these were not blasphemy cases along the lines of Otto Preminger Institut v Austria.)

In all three cases, an Austrian news magazine had published reports of police searches at a Catholic seminary at St. Pölten. The police was reported to have searched for child pornography alleged to have been downloaded at the seminary. In connection with these allegations, the news magazine reported that the principal and deputy principal of the seminary had had homosexual relations with some of the seminarians. Some suggestive photographs were also published.

The principal and deputy principal sued before the Austrian courts, requesting damages. Both lost. However, the principal also applied for a judicial injunction against (inter alia) the publication of the photographs. This was granted by the Austrian Supreme Court.

In a strange twist, therefore, both parties of the overall dispute took their cases to Strasbourg. The magazine argued that the injunction had breached Article 10 (freedom of expression), whereas the principal and deputy principal submitted that their rights under Article 8 (privacy) had been violated by the refusal of damages. The cases of Verlagsgruppe News GmbH and Bobi v Austria on the one hand and Küchl v Austria and Rothe v Austria on the other hand therefore effectively pitted the parties from the domestic cases against one another again (even though the cases were technically against Austria, obviously).

In another neat twist, neither side won (except Austria). Continue reading →

Job description

Developing, conducting, and supervising high quality academic research on International Relations;

Teaching general and specialist courses in Political Science, more in particular International Relations at both undergraduate and post-graduate levels, and involvement in post-graduate supervision;

(Participation in) the acquisition of external research funding;

Contributing to the research programme of the Amsterdam Institute for Social Science Research and to the development of the field through scholarly publications and participation in national and international research networks and educational initiatives.
Requirements

A completed doctoral thesis in Political Science or other relevant field in the social sciences;

An ongoing programme of research and publications, focused on internationally ranked, ‘peer reviewed’ journals and/or books published by internationally recognized academic presses;

Broad general knowledge in International Relations;

Mastery of appropriate social science research methods (qualitative and/or quantitative);

Ability to provide excellent and inspiring teaching at both undergraduate and postgraduate levels, in English as well as (eventually) Dutch;

Strong passive and adequate active knowledge of Dutch, or the ability and willingness to acquire such within a period of three years;

The basic qualification at Dutch universities in higher education (Basiskwalificatie Onderwijs; BKO) certificate, or a willingness to acquire such.

Conditions of employment

Depending on experience, pay will be based on assistant professor scale 1 or 2 (i.e. a gross monthly salary ranging from a minimum of €3195 to a maximum of € 4970 for full-time work, based on the January 2009 salary scale). Holiday pay is 8% of the gross annual salary, while the year-end bonus is 8.3% of the gross annual salary. According to our employment policies, you will be offered a temporary contract for three years, with conditions for tenured position thereafter agreed upon appointment.

Organisation

Faculty of Social and Behavioural Sciences

The Faculty of Social and Behavioural Sciences (FMG) is the largest educational and research institution in the social sciences in the Netherlands. The Faculty serves around 9,000 students in numerous Bachelor’s and Master’s programs in Political Science, Sociology, Anthropology, Communication Science, Psychology, Social Geography, Planning and International Development Studies, and Educational Sciences. The academic staff is employed in education as well as research. There are over 1,200 employees at the Faculty, which resides in a number of buildings in the centre of Amsterdam.

Additional information

Additional information about the vacancy may be obtained from:

Prof. Dr. Brian Burgoon
Website PETGOV
More information about employer University of Amsterdam (UvA) on AcademicTransfer.

Direct link to this job opening: www.academictransfer.com/16137

Guest post by Dr. Sinan Çankaya 

Police officers cannot tackle all crime, enforce all laws and stop all people. They have to make choices. During proactive policing so-called street cops make use of generalizations. This practice is ineffective and has a stigmatizing impact on ‘communities’.

Traditionally, the police organization functions as ‘fire fighters’: they react as quickly as possible to a fire, extinguish it and then wait for the next call. This type of officer is unfortunately always late. Since the eighties there is a development whereby the officer who is always late, wants to be early – in fact, the police officer is preferably at the occasion before the fire even ignites. The proactive police organization waits no longer for the reports of citizens, but attempts to prevent, disrupt and deter crime from happening.

The street cop as a “Where’s-Waldo–seeker”

During proactive policing, officers use generalized images of potential suspects and work with a selection profile. Citizens who tend to the profile, are more inclined to be stopped and checked. I define this decision-making process with the notion where’s-Waldo-seekers. In my childhood I ‘read’ almost the entire series of Where’s Waldo? In this comic book for children, which has an A3-format, the reader is supposed to find Waldo. The drawings represent a variation of realistic scenes, but also imaginative worlds. However, the ‘description’ of Waldo remains unchanged: a white man with glasses and a cane, dark brown hair, blue jeans, brown shoes and a red and white striped sweater.

My argument is that the officer also searches for Waldo, who apparently looks a certain way. Here, Waldo symbolizes the archetypal and decontextualized images of a ‘criminal’. Consciously and unconsciously, street cops define civilians not only as suspicious because they have committed or are committing a criminal offense. Partly they judge their appearance – such as skin colour, age, gender, clothing and jewellery – in a positive or negative way. The judgments about the personal facades of civilians are not neutral with respect to class, ethnicity, age and gender. Some facades work to the disadvantage of civilians, while others form privileges. Yet the appearance is not necessarily the decisive factor in the daily decision making processes of police officers. For the same reason there is not just one Waldo, but there are several variables that constitute numerous Waldo’s.

Ethno-racial profiling

This selection process is partly consistent with what is described as racial and ethnic profiling. This method is problematic for several reasons. The first false assumption is that so-called ‘communities’ can be identified on the basis of biological, thus racial, characteristics. This is highly unworkable, because the physiological variations within ethnic categories are too large. Secondly, the reasoning jumps from individual offenders to ‘groups’. An overrepresentation of for example Moroccan-Dutch young men in specific offenses does not justify the association of the total population with that offense. Thirdly, the present practice can undermine the trust of ‘groups’ of citizens in the police organization. Fourthly, criminals who do not tend to the ‘picture’ of police officers can be overlooked. Bad policing in my opinion.

It is remarkable that the deleterious effects of the current practice are unconvincing in public opinion. The fact that innocent civilians are subjected to proactive checks is perceived as collateral damage. The most persistent objection is the over-representation of ethnic minorities in the visible forms of crime. In the same category, officers say: “What should we do? ID check grandmas?” But the current practice has little to do with robust intelligence-led policing. Instead of focusing on individual, specific and concrete delinquents and ‘suspicious behaviour’, it leads to (self)management at the level of risky profiles. In other words: social categorization, stereotyping, status and prestige are inextricably linked to proactive policing.

 From the officer as a ‘crime fighter’, to the officer as an ‘information broker’

Moreover, the proactive stops do not result in a significant number of arrests. The reason is that the stops rely on the intuitive and vague suspicions of the police officer. A ‘gut feeling’ as they will say. As a result, street cops usually have insufficient legal grounds for an arrest. The relative low numbers of arrests are in sharp contrast to how street officers justify selective attention to certain ethnic categories.

So what is it that cops do? The result of the proactive control is generally (a) a record in a police system and (b) the assumption that crime is prevented in the preliminary phase of its execution. When we look at the first ‘hit’, it becomes clear that Intelligence-led Policing (Informatiegestuurde Politie), an abstract policy concept of management cops, has seeped to the level of street cops. However, the formal and informal norm of “the more intelligence, the better” is at odds with the Police Data Act (Wet op de Politiegegevens, WPG). For much of the records the basis for processing data is general and unclear, and seems redundant and irrelevant. Besides, it is unclear how many records are actually used in concrete investigations.

This practice has a curious side effect. The choices of street cops in the present affect the focus areas in the future. Intelligence is also proactively acquired, created, edited and added. In addition, the supplemented intelligence focuses on the already defined ‘target groups’ and perpetuates these categories. The everyday decisions of street cops not only relate to stops and checks, but also to who is and is not recorded in police systems.

Preventive Policing = black box

When looking at the second ‘hit’: the effectiveness of preventive interventions are difficult to be determined. There is no actual crime in the present, but an imagined act in the future – that does not necessarily need to occur, even without the intervention of the police officer (see also Schinkel 2009). Preventive policing is basically a virtual business. Police officers avoid a hypothetical and a future scenario from taking place. At the same time, it is possible that street cops paradoxically prevent hypothetical criminal acts from happening.

Inclusive and exclusive function of the police organization

The labels and categorizations of street cops are not about hostilities towards certain social or ethnic groups. In my interpretation, ethnicity and social class are the criteria by which a given social order manifests itself. What matters are the underlying power relations in a society. All together, the enforcement of public order is accompanied by the consolidation of the boundaries between positively valued ‘normal’ groups and the groups ‘who do not belong’ to society.

Sinan Çankaya is a cultural anthropologist and researches the police organization and inclusion – and exclusion processes. This article is a snapshot of his latest publication (in Dutch) “The control of Martians and other scum: the decision making process during proactive policing”. Anyone interested can mail to info@boomlemma.nl

Literature:

Schinkel, W. (2009) ‘De nieuwe preventie: Actuariële archiefsystemen en de nieuwe technologie van de veiligheid’ Krisis (2): 1-21

Since a few days, the Netherlands has a brand new College voor de Rechten van de Mens (National Institute for Human Rights). Why did we establish it? The Netherlands believes itself to be a country heavily committed to human rights, both nationally and internationally. When it “campaigned” for a seat in the UN Human Rights Council after the Council’s establishment in 2006, the Netherlands already pledged to establish a national human rights institute. It took some time, but now we have kept our word.

But keeping our promise is not the reason why the Institute was established, of course. The core mission of the Institute is to promote compliance with human rights within the territory of the Netherlands. The Institute will do so through a combination of advice, research and information. It will often remind the government of its responsibilities, because it is the government which is primarily responsible for the realization of human rights for all in the Netherlands. The Institute does not deal with individual human rights complaints. However, it does act as watchdog of the Dutch equal treatment legislation; in individual cases brought before it, it will decide whether someone has been discriminated against at work, at school as a consumer. It thus effectively takes over this task from the Dutch Equal Treatment Commission.

On 2 October 2012, Navanethem Pillay, herself the UN High Commissioner for Human Rights, gave a speech on the occasion of the opening of the Netherlands Institute for Human Rights. According to Pillay, the new Institute should become “active in protecting marginalized individuals and groups by ensuring that principles of nondiscrimination and equality are incorporated into legislation, policies and practice.” Pillay also reminded everyone of the most persistent human rights problems in the Netherlands:

“Policies and programmes to combat all of forms of discrimination, racism and xenophobia, including those based on religion; efforts to advance the rights of immigrants and asylum seekers in the country, including in the area of justice and detention; and measures to eliminate violence against women and domestic violence.”

She was referring here to the debate between freedom of expression and respect for religious practices; the treatment of aliens in alien detention centres (much criticized by Amnesty International).

In the reporting of the massacres in Houla in Syria, it has been alleged that civlians called the UN mission, located only kilometres away, to notify them of the massacres occurring at that time. The massacres occurred during the night, and in the two days either side of the night, the UN had come to Houla. Houla civilians are thus questioning why the mission did not come to help them- a cry that echoes of Srebrenica. However, what it is important to note is that the mission in Syria is a Supervision Mission. Its mandate is extremely limited. The mission is to monitor the cessation of armed violence through up to 300 UNARMED military observers and an appropriate civilian component (SC Res 2043, 21 April 2012). As of 30 May, the mission has 297 unarmed military observers, 71 international civilian staff, and 14 local civilian staff. This is not a contingent with capabilities to stop armed military or militia assaults. While the mandate itself may be questioned or criticised for not being robust enough, the contingent as it exists, as it is resourced, and as it is tasked, should not be criticised for stopping armed attacks and assaults. Thus it is quite different to the situation in Srebrenica, where the mission had a much more robust mandate. Therefore, while it is still astounding that the Syrian government would engage in massacres with UN observers so close by, it is vital the media does not run with the tag line that the Supervision Mission personnel should have stopped the massacres.