INTRODUCTION:
The focus of this
paper is to discuss human rights abuses and conflicts that have arisen
as a result of the attainment of oil. Furthermore, this paper describes
cases that have been brought under domestic and international bodies, and
the possibilities that these arenas hold for punishing offenders, rectifying
damages and restoring this global resource to its rightful owners. Finally,
a particularly contentious region because of its promise of rich reserves,
the Caspian Sea area, has already been affected by wars fought for the
control of oil. This area will be described and shown as an example for
required World Court intervention.
Oil has been at the source of corruption,
bribery, murder, human rights violations and wars. Additionally,
the extraction and transportation of oil has caused extreme environmental
destruction. The problems created by oil rights have plagued the
international community since this resource has been used for energy needs.
The giant boom in population and the growing development of Africa and
Asia are only going to increase the demands for this resource. As
a result of this increased development, the exploration of new oil reserves
is escalating, and areas that hold promises of vast amounts of oil reserves
are fiercely contested. Now, more than ever, it is important for
the international community to set boundaries and regulations for the extraction
of this global resource to avoid the egregious human rights violations
and the conflicts between nation-states that result from the contention
of this resource. Recently oil corporations have faced several civil
suits in U.S. courts, and organizations have concentrated on making the
public aware of some of the atrocious practices of some of these companies.
The bad publicity caused by these suits and the awareness created by watchdog
organizations will hopefully cause the oil corporations to improve their
policies. On the world stage, bodies like the World Court at The
Hague and the Rome Statute of the International Criminal Court must make
oil rights that were obtained by invasion or by violating human rights
invalid. Consequently, countries will not attempt to obtain control
of oil by violence if they know they cannot profit from the rewards.
The World Court at The Hague, has set a precedence in removing control
of reservoirs of oil from countries that have obtained them illegally or
present a point of conflict. Because oil is a global commodity, it
is the responsibility of international bodies to regulate the extraction
and distribution of this resource.
BACKGROUND AND ANALYSIS:
Several recent
trials against oil corporations have been brought under the Alien Tort
Claims Act (ATCA), which grants jurisdiction of US Federal Courts over
civil actions by an alien for a tort committed in violation of international
law or a treaty of the U.S. Recent efforts in the U.S. have focused
on suing transnational corporations for their violations of norms of international
law. As mentioned, the ATCA allows suits for money damages.
Plaintiffs can also seek injunctive relief, also a civil remedy.
An injunctive relief requests the court to order the defendant to perform
certain actions or refrain from them. Even if the court were to issue
this type of relief, plaintiffs would not necessarily be guaranteed that
their needs would be addressed because the government can continue to engage
in abuses, only the government would replace the former corporation with
a new corporation. Civil cases can also issue punitive damages awards,
which can sometimes be very large. However, punitive damages awards
allow a company to pay to violate human rights. Finally, civil suits
can ask the court to order declaratory relief, which is a statement by
the court that a particular course of conduct is unlawful. This sort
of declaratory relief could cause public relations problems, thus influencing
the corporation to seek more lawful practices. These civil suits
brought under the ATCA are targeting corporations in the hope that they
will take responsibility for violations that they have committed and cause
them to abide by international law [9].
Some example
cases that have been brought under ATCA display egregious human rights
abuses, murder and environmental destruction by oil corporations.
One such case involves the California based oil company Unocal, and their
actions on a pipeline project in Burma. The 9th Circuit Court of
Appeals in Washington on September 18, 2002, reversed an earlier decision
by the Federal District Court and allowed the lawsuit against Unocol to
go forward. Unocol is charged with forcing labor on their pipeline
project in Burma. In addition, the abuses that have been attributed to
Unocol include knowingly assisting the Burmese military in cases of rape
and murder. Another such case involves Royal Dutch Petroleum Company and
Shell Transport, which are charged with involvement with the Nigerian military
in perpetrating human rights abuses in Nigeria. These abuses include the
November 10, 1995, hangings of two leaders of the Movement for the Survival
of the Ogoni People (MOSOP). Additional abuses include the torture and
detention and the shooting of a woman who was peacefully protesting the
bulldozing of her crops. This woman’s crops were the future site
of a Shell pipeline and were bulldozed by Nigerian troops called in by
Shell. It was charged that these abuses were perpetrated in order to suppress
the Ogoni people’s peaceful opposition to the defendants’ long history
of environmental damage and human rights abuses in the Ogoni region.
Lastly, a human rights abuse case associated with Chevron’s oil production
activities in the Niger Delta region of Nigeria, was filed in May of 1999,
in Federal Court in San Francisco. In this case, the plaintiff’s case rests
on incidents that include the shooting of peaceful protestors at Chevron’s
Parabe offshore platform and the destruction of two villages by soldiers
in Chevron helicopters and boats. Chevron attempted to get the Court to
dismiss the case in the Spring of 2000. Chevron argued that the case
was better tried in Nigeria. Although, the Court rejected Chevron’s proposal,
this attempt at dismissal leads to one of the problems associated with
trying these cases in U.S. courts [1]. If this case were to be brought
under the Rome Statute of the International Criminal Court (ICC), dismissals
based on country of origin would not be valid because ICC has international
jurisdiction. The ICC is the more appropriate court for the cases in Burma
and Nigeria because criminal cases can be brought against the perpetrators.
The Rome Statute
of the International Criminal Court (ICC) provides a much-needed component
of the international legal system that the world community had lacked previously.
The International Court of Justice (ICJ) at The Hague, which began work
in 1946, only handles cases between nation-states and not individuals.
Now with an international criminal court that deals with individual responsibly,
acts of murder, genocide and egregious human rights violations can be punished.
In the cases in Nigeria and Burma that were discussed above, a corporate
officer could be tried in the ICC. In a Federal U.S. court, although
civil remedies could greatly damage a company’s assets or cause a public
relations nightmare, civil penalties are not severe enough based on the
crimes that were committed. It cannot be determined
how civil penalties will affect corporate behavior because these civil
cases in Federal courts have not yet been judged, but it does provide a
courtroom where the victims can confront the responsible party. Because
the UN International Criminal Court has just come into effect this year,
it has not yet had the opportunity to prosecute corporate human rights
offenders. However, under this body, not only can victims confront
their abuser, they will be able to bring charges against the responsible
individual that will bring about more fitting penalties.
The other legal
body of the UN, the ICJ, also known as the World Court at The Hague, has
jurisdiction over nation-states only. In the ICJ it would be impossible
to sue a corporation in this court, but provides an excellent arena to
try countries that illegally seizes control of oil resources by invasion
or other violations of international law. The International Court
of Justice is a wing of the United Nations and is its principal judicial
body in dealing with nation-states [4]. There have been a couple
of recent cases that have highlighted World Court decisions over oil rights.
One of these World Court rulings was over the Bakassi Peninsula and was
designed to remove the threat of military action over the rights to this
peninsula. On October 10, 2002, the World Court ruled that Cameroon
was the rightful owner of this region in the Gulf of Guinea that was formerly
under the control of Nigeria. This oil-rich area holds the possibility
of deposits of hundreds of millions of barrels [12]. Although, this was
not a ruling against any practices by ExxonMobil, which is one of the oil
companies active in the region, it does make precedent that there is a
ruling U.N. body that can make decisions about border disputes above existing
oil corporations contracts. Additionally, it sets a precedent for solving
military disputes in which a world resource is at stake. In this case,
any existing contracts between the Nigerian government and oil corporations
in the peninsula are obviously voided because Nigeria no longer has control
over the area.
Another case
brought to the ICJ involved the substantial oil and natural gas reserves
under the Timor Sea. Portugal first colonized East Timor in 1520
and this country remained under control of the Portuguese until 1975.
The potential oil wealth under the Timor Sea has been central to Australia’s
policy with Indonesia and East Timor. In the early 1970s when the
Timor Sea showed promise of huge reserves, the Australian ambassador to
Indonesia advised that a Timor Gap Treaty, which would secure control over
the reserves, would be more readily negotiated with Indonesia than with
Portugal or independent Portuguese Timor. Later, Australia’s government
made it clear to Indonesia that they would not oppose the invasion of East
Timor. After Portugal left East Timor, the small island was extremely
vulnerable. Nine days after East Timor declared itself an independent
nation, Indonesia invaded and annexed East Timor. Then in January
1978, Australia gave legal recognition to East Timor’s incorporation as
the 27th Indonesian province in order to meet Indonesian pre-conditions
for negotiations on the Timor Gap. However, the illegality of this takeover
presented problems to Australia. In fact, this country was the only
Western country to formally recognize the Indonesian takeover. Portugal
has allowed the Indonesian takeover, but kept its colonial interest alive
by sponsoring various UN resolutions that recognized East Timor as a “non-self-governing
territory.” Eventually, the Timor Gap Treaty was signed in December
of 1989. After major new discoveries in the Timor Sea in 1991, Portugal
revived its formal claim to sovereignty and began proceedings against Australia
in the World Court. Portugal charged that the Timor Gap Treaty was
illegal, damaged the material interests of the Portuguese and East Timorese,
and abolished the right of the people of East Timor to self-determination
[13]. In June 1995, the World Court ruled that it could not make
a decision on the legality of the Indonesian annexation because Indonesia
did not recognize the Court’s authority. The Court did, however,
find Portugal’s claims to be valid. After the president of Indonesia,
Suharto, left office left office in 1998, his successor stated that he
would allow a referendum on East Timorese independence. Because of
violence in the region between separatist and pro-Indonesian parliamentary
forces, the UN-sponsored referendum has had to be rescheduled a couple
of times and was finally voted on in August 30, 1999 [11]. The overwhelming
majority voted for independence. However, pro-Indonesian militias
and Indonesian soldiers continued to murder the East Timorese, forcing
a third of the population out of the province. After enormous international
pressure, Jakarta agreed to allow UN forces into East Timor on Sept 12,
1999 and these forces, led by Australia, restored order in the area and
expelled Indonesian forces from East Timor. The UN then set up the
UN Transitional Administration in East Timor (UNTAET) as a temporary government,
and eventually the East Timorese people voted for independence under the
watch of the UN [3]. In February of 2000 the UN and Australian government
representatives signed a new Timor Gap Treaty, which officially replaced
Indonesia with UNTAET at Australia’s partner in exploiting the reserves.
This case provides a very good example of international intervention to
remedy the invasion of a stronger power overrunning a lesser power to seize
control of a natural resource. The UN was able to return the oil
rights to the people of East Timor, and the contracts were renegotiated
to benefit the native people. Recently, a treaty signed by East Timor
and Australia gives a 90-10 split in favor of East Timor [5]. Furthermore,
the Indonesian invasion ultimately proved fruitless for the government
of Indonesia. This type of example hopefully serves as a warning
to stronger countries that desire to wage war in the hope of obtaining
oil reserves.
A region where
the resolve of the UN and the World Court will be tested is the Caspian
Sea area. Five countries surround the Caspian Sea: Azerbaijan, Iran, Kazakhstan,
Russia and Turkmenistan. This area contains 10 billion barrels of
proven oil reserves, or 6 percent of the world’s proven oil reserves, and
holds the possibility of another 233 billion barrels of oil [1]. To put
this into perspective, Saudi Arabia, which is the world’s leading oil producer
and exporter, contains 264.2 billion barrels of proven oil reserves and
holds the possibility of 1 trillion barrels of ultimately recoverable oil.
Although, the Middle East contains most of the world’s oil reserves, the
U.S., in addition to other countries, wish to move to the more stable region
of the Caspian Sea and leave behind the constantly precarious Middle East.
The Middle East has a long history of bribery, intimidation and wars over
oil resources, and this should serve as a warning to the international
community in the Caspian Sea region. One country that has greatly
suffered is Iraq. Because of its vast oil resources, the country
of Iraq has been in constant turmoil. In this country, the U.S. has
been faced with a government that has proven unfit where U.S. oil considerations
are concerned. Oil reserves in Iraq are second to those of Saudi Arabia
in the region and of high importance to U.S. corporations is a stable and
controllable government in Iraq. U.S. has attempted to demonize Mr. Hussein
and these efforts simply have not been successful in adequately convincing
the world that U.S. goals in Iraq do not include the oil resources.
The U.S. has threatened unilateral strikes and the looming threat of a
second Gulf War face the global community. The rest of the world
must learn from the history of violence in the Middle East and protect
the members of the Caspian Sea region. However, already, the international
community has witnessed violence and instability in the Caspian Sea region
during the war in Afghanistan. When oil pipeline projects with the
Taliban failed, the pipeline projects that would weave there way south
from the rich oil reserves of the Caspian Sea to Pakistan and India were
jeopardized [6]. However, when Al Qaeda was implicated in the World Trade
Center attacks and it was known that Al Qaeda cells existed in Afghanistan,
the U.S. had little fear of widespread backlash after the U.S.-led invasion
of the area. This invasion allowed the U.S. to rekindle pipeline
projects in the region.
Additionally,
the war in Afghanistan has allowed the U.S. to reside in more areas of
the Caspian Sea region, and this could signal their intention to use military
force to intimate countries and assure that U.S. corporations will amass
most of the oil wealth in the area. During the war the U.S. used
the airspace and military bases of Kazakhstan for offensive strikes in
Afghanistan. Kazakhstan contains 88 percent of Central Asia’s oil
wealth. Moreover, the U.S. already has a large military base, the
Incirlik Air Base, in Turkey. Lastly, the U.S. has pushed for a pipeline
from Baku, Azerbaijan to the Turkish Mediterranean port of Ceyhan, which
avoids Russian territory. There are close ties between the Bush family
and corporations involved in the Baku pipeline project. The leader
of this project is British Petroleum and is represented by Baker &
Botts, which is led by James A. Baker III, a close friend to the Bush family
and was secretary of state under George H. W. Bush [10]. The Caspian
Sea area has attracted other developed countries as well. Russia
is also very active in the region and has been discussing oil pipeline
projects for years. Russia has wanted pipeline projects on its territory
and some are built from the Caspian Sea region to Russian markets. With
these two superpowers descending on the Caspian Sea it is imperative that
the UN regulate the extraction of oil in this area.
Thankfully, the
UN also has many areas in the Caspian Sea region where they are stationed
or are considered international areas. Left over from the war, the
UN has forces occupying Afghanistan. A 4,800 member International
Security Assistance Force (ISAF) operates in the capital of Kabul and the
surrounding areas. The ISAF mandate has been extended to December,
2003 [7]. Additionally, if the oil is to be carried to the Black
Sea from the Caspian Sea, the tanker must exit through the Bosporus, which
is an internationally controlled waterway. The 1936 Treaty of Montreux
established that the Turkish straits are international waters, thus there
is an international presence in that area. Finally, the United Nations
is involved in protection and preservation of the marine environment and
the legal definition of offshore oils. The United Nations Industrial
Developmental Organization particularly deals with regional activities
such as the Global Environmental Facility Caspian Sea Environmental Programme
[8]. The UN work includes developments with regard to offshore installations
and structures, which are usually associated with the offshore oil and
gas industry. Most of Azerbaijan’s oil resources, both proven and
possible, are located offshore and a significant amount of Kazakhstan and
Turkmenistan have their oil resources located offshore. With forces
in Afghanistan and projects in the Caspian Sea and the Bosporus, the UN
has a presence in the Caspian Sea and can more easily act as a watchdog
for violations of international law.
Of course, there
are several barriers to trying countries at the World Court at The Hague,
which was highlighted by the case of Indonesia and East Timor that was
discussed above. Indonesia has removed itself from the International
Criminal Court’s jurisdiction, so any case filed against them would likely
be dismissed. However, the ICJ did express its opinion, and if it
had had jurisdiction it would have likely ordered Indonesia out of East
Timor. The ICJ’s opinion obviously reflected the opinion of the UN,
and eventually the UN was successful in expelling Indonesia from East Timor.
Moreover, a ruling or statement by the World Court could affect public
relations and might cause countries to be isolated, but the World Court
has difficulty enforcing its ruling if a country does not recognize them.
However, the world has made it clear in recent years that it is in moving
towards international bodies of law. The Rome Statute, another body
of the UN, which entered into force on July 1, 2002, emphasizes this sentiment.
As of September 19, 2002, 81 countries have ratified the Rome Statute,
including all the countries of the European Union. Even if the U.S.
continues to fail to recognize this body of law, a U.S. national who is
charged with committing an international crime abroad and is found in a
member country can be brought before the ICC. If the U.S. ignores
courses of actions that unify the world, the world will just begin to move
away from the U.S. economically and diplomatically, or in the case of Indonesia,
the global community will continue to labor to make sure that international
law is followed.
CONCLUSION:
Recently, federal
courts have shown their willingness to prosecute transnational oil corporations
for their abuses of human rights and protecting norms of international
law. The efficacy of these trials can not be determined because these
trials have not been concluded yet. Although, these trials can validate
the claims that are being made by the plaintiffs and could cause massive
economic problems as well as public relations nightmares, these civil penalties
are not harsh enough and do not fit the crimes. Acting in concert
with armies to murder civilians and destroy villages can not be corrected
by money. As a result, international bodies of law that can criminally
prosecute serve as a much better arena to try corporate officers or employees
who commit these egregious human rights violations. The ICC,
which recently came into effect on July 1, 2002, is the correct arena for
individuals who violate international law. When nations commit the
crimes in obtaining oil resources, the ICJ is perfectly suited to uphold
international law. The ICJ has shown precedence in removing areas
of contention for oil resources, and the UN has shown its willingness to
use military force to ensure that countries that invade in the hopes of
seizing oil resources will not benefit. The ICC and ICJ provide the
world’s population with institutions that can protect them. With
the global community becoming so interwoven, it is imperative to have bodies
of law to protect human rights and global resources. This positive
direction that the world has entered only leaves behind countries that
persist in being aggressors and pillagers on the world stage and the world
community is coming together to eliminate the violence committed by these
nations in the decades to come.
REFERENCES:
[1] http://www.earthrights.org/news/unocalsept19pr.html
[2] http://www.eia.doe.gov/emeu/cabs/caspian.html
[3] http://www.un.org/peace/etimor/UntaetB.htm
[4] http://www.icj-cij.org/icjwww/igeneralinformation/icjgnnot.html
[5] http://asia.cnn.com/2002/BUSINESS/asia/05/17/timor.oil.biz/
[6] LeVine, Steven, “Unocal Quits
Afghanistan Pipeline Project”, NY Times, Dec 5, 1998
[7] http://www.ips.org/ips/Tve.nsf/vwTVEbyData/0E4A91428C5168FD80256C7F004DCC7C?OpenDocument
[8] http://www.un.org/documents/ga/docs/55/a5561.pdf
[9] Notes and discussions with Professor
Van Schaak, University of Santa Clara and EDGE speaker on Nov. 6, 2002
[10] Banerjee, Neela and Tavernise,
“Sabrina, As the War Shifts Alliances, Oil Deals Follow”, NY Times,
Dec 15, 2001
[11] http://www.infoplease.com/ipa/A0902237.html
[12] Lacey, Marc and Banerjee, Neela,
“World Court Rules for Cameroon in Prolonged Oil-Land Border Dispute With
Nigeria”, NY Times, Oct. 11, 2002
[13] http://www.wsws.org/articles/2000/feb2000/timo-f15_prn.shtml