According to Wouters et al. (2014), the European Union (EU) member states are subject to a range of human rights obligations, which are derived from the United Nations Charter and the core human rights treating, which are elaborate under the UN aegis. Various administrative bodies in the EU exist that deal with human rights. However, as a preliminary point, it should be noted that the terminology that is applied in the EU is that of fundamental rights and not human right, but there is no difference between the two aspects. In addition, other different labels, including civil rights or civil liberties have all been used to refer human rights. As a matter of fact, human rights coincides legally and conceptually with fundamental rights, which is clear from the Court of Justice of the European Union (CJEU), which is responsible for drawing human rights treaties. In addition, it also coincides with the Charter of Fundamental Rights of the EU (CFR), made up of human rights that feature the European Convention (Wouters et al., 2014). Further, the EU Agency for Fundamental Rights (FRA) is guided by the UN human rights treaties and the CFR, and is involved in setting standards against which to compare the EU and its member states practices. In addition, the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) are also involved in ensuring that human rights are not violated in the EU. Their relationship is an issue of the EU law and the human rights law. The ECJ rules on EU law while the ECtHR rules on European Convention, which covers the EU member states of the Council of Europe. However, cases cannot be brought to ECtHR against the EU, but the court has made it clear that the member states cannot escape their obligations on human rights by saying that they are implementing the EU law.
On the other hand, in the US, human rights comprise a series of rights incorporated in the US Constitution, including the various amendments and state-wide legislations, which are conferred by treaties and enacted via Congress legislations, state referenda, citizen initiatives, as well state legislatures (Wouters et al., 2014). The federal courts in the US have jurisdiction over international human rights laws, which is also part of the US laws. The US Federal Government, via the constitution and amendments encompassed therein, guarantees unalienable rights not only to citizens but also to some degree the non-citizens (Lauren, 2008). Also, individual civil recourse in the US possesses anti-discriminatory and governmental enforcement bodies, including the Equal Employment Opportunity Commission.
Therefore, both the EU and the US emphasize on the centrality of human rights, both in domestic and external policies. However, they differ in terms of human rights promotion. For instance, according to the US position pertaining anti-terrorist conflict involvement is the Middle East, only the international humanitarian law applies, which is in contrary to ICJ opinions (Cassel, 2009). In contrast, the EU accepts both bodies of the law should apply. The US continues to place less emphasis on international organizations and international law, and thus, it submits less to international adjudication compared to EU member states. American unwillingness to conform to international law is rigid when it comes to global human rights treaties. For instance, even though the US does ratify human rights treaties, for example, the International Covenant on Civil and Political Rights, it attaches understandings and reservations that are mainly designed to make the treaties, as applied within the US borders, conform to the domestic laws, rather than making them meet the international norms (Cassel, 2009). Lastly, EU member states submit to European Court of Human Rights judgments on human rights of the EC. However, the US is yet to join the Inter-American Court of Human Rights or any other court.
Case: Wiwa vs. Royal Dutch Petroleum Company
The district court proceeding arose from a class action lawsuit pending the US District Court of the Southern New York, where Kiobel and others alleged that the Royal Dutch Petroleum Company, Shell Petroleum Development Corporation of Nigeria, Shell Transport and Trading Company, which collectively are known as Shell, colluded together and assisted the Nigerian military to brutally repress the Ogoni, which was a Nigerian minority group (Find Law, 2004). Kiobel presented a complaint that the Ogoni demanded that Shell, in its business endeavours, should adhere to proper environmental standards, as well as compensate via pay of the environmental damages Shell impacted in relation to its production and exploration activities in the country. In essence, as the case proceedings held that the Nigerian military and police forces, having been assisted and supported by Shell, retaliated against the Ogoni minority for its unwavering voice against Shells exploratory advances in the area (Find Law, 2004).
The retaliation was characterized by waging a campaign of terror, which entailed launching armed attacks on the Ogoni villages, as well as subjecting the inhabitants to arbitrary arrests, torture, and confinement. Furthermore, the Ogoni leaders were executed following proceedings held in a military kangaroo court, which clearly presents proof that their human rights were violated (Hoffman, 2013). As the proceedings went on and during the discovery of the underlying litigation, Kiobel identified Victor Oteri as a non-party witness and resided in Houston, Texas. Oteri stood to provide crucial evidence as he served as Shells security coordinator, which was the companys subsidiary at the time of the complaint. In consequence, Kiobel at the US District Court for Texas, sought, procured, and also served a subpoena duces tecum on Victor Oteri in February 2003. It ordered Oteri to subsequently appear in court and testify in regard to Shells cooperation with the Nigerian government and military collaboration against the Ogoni people that saw their efforts thwart Ogonis peaceful protests against Shell. In addition, the subpoena also ordered Oteri to produce deposition documents that were relevant to the claims put forward by Kiobel.
However, both counsels, for Oteri and Kiobel failed to agree on Oteris deposition date or on the scope of what documents he would present. In consequence, Kiobel issued a second subpoena in September 2003, identical to the first, requiring Oteri to produce documents he was in possession of regarding his employment with Shell. Oteri objected, leading to Kiobel filing a Motion to Compel Attendance, as well as the production of the documents in October the same year. The District Court was in favour of Oteri, where it used his motion to credit the objections, and it quashed the subpoena. It denied Kiobels motion but it did not offer any explanation, leading to Kiobel filing a notice of appeal. It was later found that the District Court rulings unreasonable and Oteris arguments were rejected by the Supreme Court, which reversed the District Courts ruling. The orders were reversed, subpoena modified, and the case remanded for further proceedings in consistency to the law (Find Law, 2004). The case was settled out-of-court in 2009, with Shell paying $15.5 million to Saro-Wiwa on June 8.
Discussion of Case and Human Rights from Business and Legal Perspective
First, it is important that companies observe the basic human rights while conducting its business operations. In essence, this should involve respecting all the rights of the employees, as well as the immediate community. No company should violate human rights. In addition, it should adhere to legal and regulatory measures, including aspects such as environmental protection to reduce any adverse effects that the business operations might have on the environment. Besides, it should practice aspects of corporate social responsibility (CSR) to promote a positive brand image by participating in community betterment programs, such as treatment of waste and supporting communities which it has adversely affected. In the case of Shell, the company did not meet these criteria. By colluding with the Nigerian government and the police that used deadly force to conduct brutal and massive raids against the Ogoni. According to Mitchell, Carey and Butler, (2014), if militias are involved in killing and terrorizing people, it is violation of their human rights. The fact that the company financed these raids and killings is proof that it disrespected human rights, and thus, it is liable to legal sanctions, and as the Institute for Global Ethics (n.d), such a company is not ethical because it did not follow ethical decision-making.
Besides, the company had adverse effect on the environment due to its production and exploration activities, of which it did not rectify. As such, the business did not exercise its responsibility to protect the environment. In effect, the company did not initiate any CSR initiatives, which affected its brand image. In addition, Oteri having worked at Shell at the time, refused to cooperate with the courts to provide evidence, not until the Supreme Court overturned his decision. As such, from a business viewpoint, he did not want to provide the evidence which wold adversely affect the company, and it was illegal. Shells outside of court settlement with Wiwa meant that the company was guilty.
In conclusion, from the research, EU and US administrative bodies on human rights despite having some similarities, they are different. The US is reluctant in applying international treaties on human rights. For instance, it places less emphasis on international organizations and international law, and thus, it submits less to international adjudication compared to EU member states. American unwillingness to conform to international law is rigid when it comes to global human rights treaties. It is for this reason that the case was tried in a District Court, which resulted in faulty ruling only to be reversed by the Supreme Court. The company colluded with the Nigerian military and police to conduct brutal and massive raids against the Ogoni, which was a violation of their human rights. The Ogoni people were right and their peaceful demonstrations were justified, but Shell corrupted the military and police to wage their interests of mining oil in the Ogoni territory. The company did not take any initiatives to better the degraded land, which is wrong as the company did not follow CSR initiatives, which could stand to tarnish its brand image. Oteri did not want to reveal the evidence, which gives a perception that the company was guilty. Through the research, it is clear that human rights should not be violated, and companies should respect that. However, with different legal infrastructure in the EU and US, there are gaps on how human rights cases are solved. It is suggested in the future, District Courts in the US should provide evidence of their rulings to ensure that justice is done for cases involving human rights. In addition, it is recommended that the US should be welcoming to international treaties to provide a comprehensive and uniform dealing of human rights not only in the US, but globally.
Cassel, D. (2009). The European Union, The United States And Human Rights: Major Trends and Challenges. Retrieved from http://www3.nd.edu/~ndlaw/news/EU-US-HR.pdf
Find Law. (2004). Wiwa v. Royal Dutch petroleum Company. Retrieved from http://caselaw.findlaw.com/us-5th-circuit/1308497.html
Hoffman, P. L. (2013). Kiobel v. Royal Dutch Petroleum Co.: First Impressions. Colum. J. Transnat'l L., 52, 28.
Institute for Global Ethics (n.d). Our Approach: Why Ethics Matter. Retrieved from https://www.globalethics.org/What-We-Do/Approach.aspx...
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