19/10/2012 08:52 BST | Updated 19/12/2012 05:12 GMT

Government's Intervention in Shell Human Rights Case at Odds with its Commitment to Human Rights

A report published this week by the Foreign Affairs Select Committee has urged the government to do more to address human rights abuses resulting from the overseas activities of UK businesses by, for example, linking all government support to business to their human rights records overseas.

The government's strategy on business and human rights will be released imminently. To be effective this must go beyond advice and guidance and set out concrete measures to curb the human rights abuses perpetrated by some British companies, particularly in conflict zones.

The Foreign Affairs Committee is urging the government to look beyond advice and voluntary initiatives and to set out the state's responsibilities in this area. One radical policy considered by the Committee is the extension of extra-territorial jurisdiction which would mean that business based in the UK and operating under contract to the UK government would be held accountable for their record overseas including, for instance, rights relating to working conditions, or the impact of environmental harm upon living conditions.

It would mean that in countries where lower ethical standards apply, British business would be held to the UK's higher standards. The policy would clearly have a huge impact on business but deserves serious consideration. At present many businesses operate to the ethical standards demanded by local law, but these, and the local administration of justice, do not always do enough to meet the UK's high standards on human rights. Those businesses that do can find themselves at a competitive disadvantage. Action is needed to support them, and the UK should be considering radical options at an international level and unilaterally.

The government set out its position on extra-territoriality through its intervention in a major human rights case (Kiobel v Shell) brought in the US by a group of Nigerians who alleged that Shell was responsible for the jailing and ultimate execution of nine activists campaigning against the company's operations in the Niger Delta.

Shell's legal team argued that corporations should be exempt from extra-territorial jurisdiction, a position the UK government supported, stating that "US courts should not assert jurisdiction on claims brought by a foreign plaintiff against a foreign country which concern events in a third country." This position attracted criticism from a range of experts including Professor John Ruggie, the former UN special rapporteur for business and human rights, who described it as an attempt to "...destroy an entire juridical edifice for redressing gross violations of human rights."

The US Supreme Court is currently considering whether the case can be heard under the Alien Tort Statute - a piece of legislation that was designed to allow foreign citizens to bring claims in the United States for harms committed overseas if they violate US laws or treaties. The question is not whether the alleged actions breached international human rights law but whether international human rights law applies to corporations at all.

More worryingly, it is not clear how the UK government's intervention in a case of this kind is in keeping with its wider commitment to tackle corporate human rights abuse. As is too often the case, this looks like a clear case of a government that is not joined up - not only across different government departments but actually within departments: the intervention came from the Foreign Office, which is the department leading on developing and championing the business and human rights strategy.

The Select Committee report is right to highlight that "there is an unresolved debate about the extent to which vigorous promotion of trading opportunities for the UK can co-exist with the UK's drive to promote its human rights values around the world." This government must decide whether or not it is prepared to pursue trade at any cost, and if it is not, it must ensure that this is made clear across government and in any jurisdiction that British business operates.