For the first time in Italy, a multinational, Eni, has been brought to court in its home country for human rights violations committed abroad. An interview with Luca Saltalamacchia, the lawyer leading the case.
It was the community of Ikebiri, in Bayelsa State, on the Niger Delta, that sued the oil company Eni and its local subsidiary, Naoc (Nigerian Agip Oil Company), for the environmental pollution caused in 2010 by an oil spill on the land and waterways of one of the countless branches of the River Niger that flows near their villages.
The legal proceedings have been pending since 4 May, when the writ of summons against Eni was served at the Milan court by Luca Saltalamacchia, who represents the inhabitants of Ikebiri in this case. The community is protesting the failure to remediate the environment and the river, despite the company having declared that it fulfilled its obligations. The incident, caused by the rupture of a pipeline running near their villages, had serious repercussions on the health, food supply and economy of the population due to pollution that damaged biodiversity.
Six days after the spill began, representatives of Naoc and the other parties involved, including the local community, visited the site to assess the situation and the company committed to remediating the area as soon as possible. Shortly afterwards, the crude oil leak was stopped, but the affected area was subsequently set on fire, increasing pollution and damage in the zone. Naoc claims to have carried out the remediation and to hold documents attesting to this, but has never sent them to the opposing lawyers.
Bringing a lawsuit does not mean winning the case, but this is already a victory for the environment and for those communities seeking justice. We therefore try to explore this case in depth with lawyer Luca Saltalamacchia, who represents the community of Ikebiri.
How did the case against Eni in Nigeria come about?
This campaign came about through the intervention of Friends of the Earth (FoE), a non-governmental organisation that fights for the protection of the environment and human rights through legal campaigns. Access to justice is, in fact, a major problem in these situations, and FoE steps in as a facilitator. In the past I had already taken on Italian multinationals over environmental disasters, in particular in a case concerning the financing by an Italian credit institution of a controversial dam in Turkish Kurdistan. On that occasion the company proved very cooperative from the outset and effectively abandoned the operation without the matter ever reaching court. In Nigeria, Eni polluted the area and carried out neither remediation nor compensation of the community. For this reason, FoE — with whom I had been in contact since 2010 — approached me, given my background, and together we identified the Ikebiri case as a suitable situation in which to proceed through legal channels.
What charge have you brought against Eni?
Eni, through its subsidiary Naoc, polluted the territory of Ikebiri and was legally required to remediate it and compensate the communities affected. In reality, we believe it has fulfilled neither obligation. The soil remains contaminated, as we demonstrated by conducting independent analyses, and the fact that Naoc claims to hold remediation certificates is irrelevant, not least because it has never provided them to us. In any case, a piece of paper is not sufficient proof of remediation when the established evidence tells a very different story. In this regard, it is important to note that following an investigation into a similar case, also in the Niger Delta, the United Nations Environment Programme (Unep) demonstrated that these certificates are unreliable, having been issued — in 10 out of 15 cases — for land that was still contaminated. Moreover, the independence of governing and oversight bodies is far from solid: for example, during an on-site inspection we conducted, local authorities arrived accompanied by an escort and in Naoc vehicles, and the report was drafted on the company's headed paper. A troubling conflict of interests.
So the soil is still contaminated?
The first time we visited the site, in 2013, simply by pressing one's feet on the ground the oily hydrocarbon substance could clearly be seen rising to the surface. Now the oil is no longer visible because it has been absorbed into the soil, but pollution levels are still above the legal limit across a very wide area. Initially the affected area was estimated at around 17 hectares, but samples taken 2 kilometres from the point of the spill showed that hydrocarbon levels even at such distant points were around 100 mg/kg, while near the spill site a value of 207 mg/kg was recorded. The legal threshold below which land can be considered uncontaminated is 50 mg/kg.
Is compensation for the local population envisaged?
Although negotiations to that end took place at the time between the community and Naoc, adequate compensation has never been provided. It is precisely thanks to the pride and determination of the king of Ikebiri and the council of elders that it has been possible to pursue this fight, as they refused to accept the settlement offers made — worth just a few thousand euros. Even had the amount been increased, the fundamental element of remediation would have been absent, and that was something the community could not forgo. This is a very rare occurrence, because communities usually settle for a small sum of money which, however, precludes any further possibility of intervention.
As we were saying, you were the first in Italy to take this route. What do you think the reasons are?
Yes, we believe this carries great value. It is incredible that no one has ever attempted such an undertaking, despite Italian law having been in force since 1995 (Law 218/95) and European law also having permitted this type of case for several years. Other countries are further ahead — the Netherlands, for example, has already brought Shell to court in a similar case. First of all, Italian law greatly favours companies and large multinationals over the rights of individuals, so the prospect of taking legal action against these powers is not very encouraging. Furthermore, bringing non-Italian-resident foreign nationals before a judge in Italy is also complicated from an economic standpoint, since they cannot benefit from free legal aid and representation. The fact that class actions are not permitted in Italy for this type of violation also creates many difficulties for lawyers, although in our specific case this was not relevant.
And then there is always the question of nobody wanting to be the first. If no one has done it until now, there must be a reason. Everything is more difficult: there are no similar cases to draw on, there is no case law, the interpretation of the law has yet to be refined. But we decided to try anyway. When you embark on these endeavours you want everything to be perfect, but that is not possible — something is always missing. The preparation took five years and was complicated. Of course it will be difficult for the other side too, because there are no precedents for them either.
Why is it important to bring multinationals before the courts of the countries where they are headquartered?
For a start, one expects a European judge to be impartial and sentences to be enforced more precisely. And then public pressure can do a great deal to keep attention high and ensure that companies and governments are held accountable for their actions. Until now, Italian companies operating abroad have done so in complete freedom and impunity. Although in this case Nigerian law applies, the procedural rules will be Italian ones, and those too can shape the course of justice. Very often in cases judged by local courts, even when penalties have been imposed, they have not been served and sentences have not been implemented. The reasons are various and responsibility lies at different levels. In any case, governments are keen to maintain good relations with multinationals that bring investment and money into their coffers. Unfortunately, however, the local population does not benefit from these infrastructures — in Ikebiri, for example, none of the approximately 500 inhabitants works in the sector.
What are the positive implications of this first step?
If our case has a positive outcome, it would set an important precedent in cases of other human rights violations, pollution, land grabbing or labour exploitation. We must, however, be careful, because while in our case we believe Eni has violated Nigerian law, there are situations in which companies operate within the law, yet the rights of local populations are violated nonetheless, due to national laws that conflict with international ones or that allow multinationals various forms of abuse.
On the other hand, recommendations issued by international institutions such as the European Union and the United Nations, urging greater corporate accountability in respect of human rights, are becoming ever more frequent. This jurisprudence should also guide behaviour in that direction.
While we are struggling to move in this direction, the United States was already well ahead, but recently reversed course: the Alien Tort Claim Act had in fact guaranteed a trial in an American court regardless of the nationality of the defendants. A bastion of universal justice, which unfortunately was dismantled three years ago.
How should Italian law be improved?
First of all, I hope that access to justice is made simpler by providing foreign communities and citizens with the possibility of benefiting from legal aid and class actions. It would also be appropriate to establish automatic liability for parent companies in cases of violations of fundamental human rights or environmental devastation committed by their subsidiaries.
And now?
The road ahead is still long. We do not want to stage a trial by media, but it is important that attention remains high, to make clear that the issue is significant. Furthermore, precisely because it is the first of its kind, this case will certainly encounter obstacles, but that is no reason to abandon it — quite the contrary. It must rather be supported, because even if it is still fragile, it will grow stronger. It is a step forward towards legality, the application of a law that has never been applied.
