Electronic copy available at: http://ssrn.com/abstract=1986163

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A RESEARCH FOR PROPOSING INCORPORATION OF ENVIRONMENTAL HUMAN

RIGHTS PRINCIPLES TO FOSTER ENVIRONMENTAL PROTECTION IN NIGERIA

Ainul Jaria Maidin1

Abdulkadir Bolaji Abdulkadir

Abstract

This research is chosen to address the need to manage issues of environmental degradation and

human rights abuses and violations by the multinational companies (MNCs) operating in Nigeria

leading to the people living in the locality to suffer the consequences. If the assertion that health

is wealth has a philosophical basis, there is the need to look at the human rights dimension to

environmental degradation. This research discusses how environmental degradation affects the

enjoyment of guaranteed rights. The regulatory frameworks on environment and MNCs in

Nigeria have proven to be inadequate and ineffective in the protection of the rights of the victims

of environmental degradation. A research is therefore proposed to investigate and analyze the

problems of the existing legal framework on environment and MNCs in Nigeria. This analysis

would assist in the research as to whether human rights offer a better remedies and solution to

the victims of environmental degradation in Nigeria and safeguard the interest of the future

generations and a future sustainable development.

Keywords: Environment, Environmental degradation, Development, Human rights, Human

Rights Violations, Sustainable Development.

1. INTRODUCTION

The advancement of human civilization coupled with technological advancement brought rapid

development. As the process of human civilization continues, so is the process of development.

Therefore, the process of development has been in growth since the evolution of human

civilization. Development, apart from being a continuous process has always had a close

interface with its surroundings, which is known as environment (Agarwal, 1998).

Environment has two essential components: first is the physical and second is social. History has

shown that the course of development has done enormous damages to the physical environment

because it has resulted into the environmental devastation (Alan Boyle, 2007). Not only has it led

to immense deforestation but also polluted the air and water bodies all around. Further, the

course of development has over exploited the natural resources which did not only belong to the

present generations but also to the upcoming or unborn generations as well. This suggests that

the process of development has not remained companionable with the natural environs.

If we look at society from historical perspective, we will appreciate that protection and

preservation of the environment has been primary to the culture and religious philosophy of most

1 Correspondence Author: Ainul Jaria Maidin, Ahmed Ibrahim Kulliyyah of Law International

Islamic University Malaysia

Electronic copy available at: http://ssrn.com/abstract=1986163

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human communities. Nature has been admired by ancient Hindus, Greeks, Natives Americans

and other believers around the globe. They worship all forms of nature, believing that it

emanated from the spirit of God. Hinduism affirmed in its command that “the Earth is our

mother and we are all her children.” Islamic law regards man as having inherited all resources of

life and nature and having certain religious responsibility to God in using them. In the Judeo-

Christian tradition, “God gave the earth to his people and their offspring as an eternal possession

to be cared for and passed on to the generations unborn.” Therefore, this shows that the duty to

protect and preserve our environment is as old as the world itself.

Humankind all over the world, are encountering the consequences of ecosystem decline. The

sufferers of these consequences tend to belong to the helpless and ethnic minorities and the poor

who frequently carry a proportionate burden of such abuse (Ainu Jaria, 2004). More and more,

many basic human rights are being placed at risk, because the right to health can be affected by

the spoil of resources, or the right to property and culture endangered by commercial interference

into indigenous lands.

The early 1970s ecological beginning which resulted in the United Nations Conference on the

Human Environment, held in Stockholm in 1972 was the outcome of scientific study which

proved that the situation of our environment was to a slighter or advanced degree impaired

disturbingly by the activities of mankind. Gradually, all scientists, most politicians and other

decision-makers as well as the entire public acknowledged the idea that our environment was in

jeopardy and that something had to be done (Amnesty International, 2009).

Faced with the consequence of polluting and destructive action, several international treaties and

local legislations and regulations on environmental protection have been introduced in the

second half of the 20th

century. This at the initial did not talk about human rights in relation to

environmental protection. Nevertheless, since the 1970’s, acquaintances between human rights

and environment have increasingly been recognized.

People more and more begin to observe that a clean and healthy environment is fundamental to

the realization of basic human rights, such as the right to life, family life, personal integrity,

health and development. Since every human being depends on protecting the environment as the

resource base for all life, the push to human rights approach started with merely linking

acknowledged human rights to cases of environmental disruption, like Bhopal and Chernobyl

disaster, it has turned out to be more acknowledged over the years that human rights and

environment are so intrinsically intertwined that a clean and healthy environment is seen as

human right.

Global concerns with human rights, health and environmental protection have expanded

significantly in the past several decades. The international community has created enormous

range of international legal instruments, specialized organs and agencies at the regional and

international levels to act in response to identified problems affecting the environment. Indeed,

health appears to be the subject that bridges the two fields of environmental protection and

human rights in places or community that experiences environmental degradation like Nigeria.

Therefore, this paper discusses the major environmental problems facing Nigeria and the effects

of such problems on the enjoyment of the basic rights on the people in general and the victims of

Electronic copy available at: http://ssrn.com/abstract=1986163

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environmental degradation in particular. The research discusses the various ways by which

existing human rights instruments whether international or domestic can be used to foster

environmental protection and regulate the activities of the MNCs companies. Such discussions

take into consideration of the need for improvement in the near future through the possible

revision of the existing legal framework regulating environment and the activities of MNCs in

Nigeria.

II. PROBLEM AND OBJECTIVES

The research is proposed based on the literature review that identified the following gaps:

● The law regulating land use in Nigeria laid the foundation for environmental

abuse in Nigeria because it has given a far-reaching power to the government to

confiscate property for use without incorporating environmental protection in its

provisions;

● Specific legal frameworks on environmental protection in Nigeria are obsolete

and therefore, failed to adequately regulate the activities of MNCs in Nigeria;

● Besides the inadequacy of the existing legal frame work on environmental

protection in Nigeria is the problems of institutional mechanism responsible for

the protection of laws on environmental protection in Nigeria. The institutions are

not independent of the government and this affects their effectiveness to

environmental issues;

● The problems and adequacy of civil law remedies to the victims of environmental

degradation has not also been helpful in safeguarding the environment and control

the activities of the MNCs;

● The Constitution of the Federal Republic of Nigeria which is the ground norms

for all other laws did not provides for a justiciable environmental rights against

the polluter and major actors involved in environmental degradation in Nigeria;

The objectives of the proposed research are developed based on the following guiding principles

for environmental protection and justice system in Nigeria:

● The principle of corporate responsibility require MNCs engaging in activities

likely to occasion human rights abuse to exercise a preventive measures and

ensure compliance with recognized international human rights law;

● States are require in international law and national law to safeguard its citizens on

activities likely to cause environmental disruption and human rights abuse;

● The precautionary principle requires MNCs to bear and assume responsibilities

for damages occasion by their activities and to restore the environment back to its

original position.

The objectives and scope of the proposed research are as follows:

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● To examine major environmental problems in the Niger Delta Region of Nigeria

and how it affects the enjoyment of the basic human rights.

● To identify and examine the major undisputed rights likely to be affected by the

activities of the multinational companies in the Niger Delta of Nigeria.

● To analyze the benefits of addressing environmental protection through human

rights approach to promote environmental protection in the Niger Delta of Nigeria

● To examine how the inadequacy of the existing legal frameworks on

environmental protection in Nigeria has led to incidence of human rights violators

of the Niger Delta.

● To examine how the existing human rights instruments can be suited towards

affording environmental protection in the Niger Delta of Nigeria.

● To examine the extent to which the courts are prepared to take a proactive step in

upholding environmental protection through right-based approach.

III. BACKGROUND

It is no longer an interesting tale that Nigeria is the most populous nation in Africa. It is not also

news any more that Nigeria is richly blessed with abundance natural resources. What may

perhaps be interesting is what have we benefit from what we possess. That is, how far has the

detection of oil over five decades ago improved the standard of living of the people of Nigeria?

The environment is one of the liveliest and newsworthy subjects of our day. The environment is

in disaster globally and the Nigeria position is such a pitiable one due to the scale of devastation

done to it and the complexity of the crisis. Nigeria in some circle is regarded as Africa’s Kuwait,

for its oil and geographical abundances (Eregha and Irughe, 2009).

Nigeria, after almost five decades of oil production, had by 1990s become nearly dependent on

petroleum extraction which accounts for 25% of its GDP (Emeka, 2009). In spite the huge

wealth realized from petroleum, the indigenous people who have since 1960s been forced to

abandoned their source of livelihood are still swimming in poverty and even becoming poorer

than one could ever imagine due to the activities of MNCs on the environment and resultant

effects on the enjoyment of basic rights.

Crude oil was originally discovered in commercial quantities at Oloibiri, a small community in

Bayelsa State. This was discovered in 1956 and the nation rejoiced as this was seen as great

opportunity to develop and boost the nation’s economy. To the people of the region, it was an

opportunity for the goose that lays the golden egg to be treated as a golden goose (Francis,

2001).

As each year passes, the story appears to have taken a new look as the resultant effect of the

growth and development of the nation’s economy was and is still a destruction and worsening of

the nation’s environment. This springs surprises whether the detection of crude oil is truly a

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blessing or a curse (Hassan, 2007). The issue of environmental problem and degradation in

Nigeria and how this has hindered the enjoyment of basic human rights and led to the

impoverishment of the people of the Nigeria has been acknowledged by all and sundry both at

national and international sphere, scholars, governmental and non-governmental organization. It

is however, annoying to witness that in spite of the acknowledgement, nothing much has been

done to deal with the difficulty of people in Nigeria and the oil producing states in particular.

Under the Nigerian Law, individuals and local communities have no legal rights to explore or

exploit the resources within their territories. The Constitution of Nigeria provides that “the entire

property in and control of all minerals, mineral oils and natural gas in, under or upon any land in

Nigeria or in, under or upon the territorial waters and the Exclusive Economic Zone of Nigeria

shall vest in the Government of the Federation and shall be managed in such manner as may be

prescribed by the National Assembly.

Besides, the Land Use Act vested in the Governor of a state all land within its territorial

jurisdiction and it is lawful for the Governor “to revoke a right of occupancy for overriding

public interest” and this includes mining and other purposes connected to it. Furthermore,

provisions within the Oil Pipelines Act, Petroleum Act, Mineral and Mining Act vested in the

Federal Government of Nigeria the freedom to grant licence and permit to the prospective

company in oil industry (Land Use Act, 1978). Oil matters are under the exclusive legislative

list and therefore fall under the exclusive control of the federal government. Once a company has

been given a licence to operate, the state government without prior consultation or information to

the local communities has to give access to the land.

For instance, provisions under the Petroleum Act and Oil Pipelines Act permit the holder of a

lincence to survey to engaged in kinds of activities ranging from cutting down of the trees and

other vegetation, to laying of pipes and dredging without adequate supervision and monitoring of

the consequences of their activities on the environment and the indigenous people. This has

resulted in conflict between the communities and the companies over the land. The communities

rely on the land for survival while the companies want the land because of its value. Therefore, it

will not be an overstatement to say that environmental laws in Nigeria lay the foundation for the

violation of human rights in the Nigeria.

The combined effect of constitutional provision, Land use Act and other laws regulating oil

activities in Nigeria has given far-reaching powers to the government to confiscate land for use

by the oil industries without due process and adequate compensation being paid. This has indeed

created an atmosphere for the oil companies to operate without due regards to the consequences

of their activities on human rights.

Therefore, the need for human rights approach to environmental protection in the Nigeria arises

for obvious reasons. Firstly, poverty continues to escalate in the country especially within the

indigenous people due to the activities of multinational companies because the right of the

people to source of income and livelihood has been jeopardized by environmental hazards that

follow it. Secondly, the health conditions of the people in the oil producing region are seriously

threatening. Thirdly, the rights of future generations to a sound and ecological environment are

also under threatening.

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This research is sought to be written at a time when the protection and conservation of the

environment has rapidly risen in importance to become one of the foremost concerns of the

world community. Environmental deterioration through human activity is proceeding at an

unprecedented level, and unless this process is held in check, the destruction to be occasioned

will be grave and irreversible, hurting not only ourselves but future generations, and not only the

nation where it occurs but the global population in general.

IV METHODOLOGY

The proposed research is accomplished using the diverse method of case study approach and data

collection procedures in realizing the research objectives. Data collections embrace the research

of all relevant documents to establish preliminary perceptive of the current picture of legal

provisions and institutional bodies involved in environmental matters. Also are observations

through field study at several selected states and interview with administrators (executive level)

at the various offices involved in environmental matters.

The first phase of the study involves the investigation of literature to establish a preliminary

theoretical understanding of the issues and problems in the application of the laws on

environmental protection in Nigeria and how human rights can be incorporated into the legal

frameworks on environmental protection. Such analysis is illustrated through the report provided

in the next section.

In the next stage, preliminary field visits will be conducted. In Nigeria, environmental protection

is distributed through several levels. These levels are divided into federal level which is located

at the Abuja office (Federal Capital Territory), and the state level, with office located at the state

capital. In this stage, three jurisdictions were selected with visits made to the state office in

Kwara, Ekiti and Lagos.

Based on these visits, data were collected by and the analysis of the data are discussed in the next

section.

V FINDINGS

Analysis of literature and documents has lead to findings that explain the problems of laws on

environmental protection in Nigeria and the need for human rights approach to the

environmental degradation and disruption.

National Policy on Environment

The need to safeguard Nigerian environment against unnecessary harms was initiated in 1988

subsequent to the Koko toxic dumping incidence in Nigeria. However, since then, various

institutional bodies have been created to address and regulated activities likely to occasion

environmental damages and human rights abuses in Nigeria. This research found as a fact that

the inconsistency in the institutional bodies involved affects environmental protection negatively

in Nigeria. From 1988 to date, the bodies have undergone amoeboic attitude because of sudden

changes in their name and affiliation with other ministry which affect the continuity of purpose.

For example, in 1988, Federal Environmental Protection Agency (FEPA) was established to

oversee the protection of Nigerian environment. In 1999, the body was substituted with the

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Federal Ministry of Environment who assumes the responsibility of the former FEPA. 1n 2007,

the National Assembly passed another Act which subsequently established the National

Environmental Standard Regulation Agency Act (NESREA) who now assume the responsibility

to enforce all laws on environmental protection in Nigeria. Therefore, research found as a matter

as of fact that this inconsistency in regulatory body affects the protection and application of laws

on environment in Nigeria.

Government Interference

The research reveals that the content of Nigeria’s laws on oil operation is to some extent

minimally adequate to control MNCs activities. However, these laws have more momentous

flaws particularly as they relate to oil industry. The research found that because of the

government involvement in regulatory system, the laws are poorly enforced. The government

who is the regulator is a partner in and major beneficiary of the oil proceed. This is because of

the government reliance on oil as a major source of income for the country. For this reason, the

government is reluctant in regulating the activities of the oil industries. Oil operation in Nigeria

is under federal jurisdiction. The Federal Government is both a partner in the oil industry and at

the same required by federal law to enforce environmental laws and standards. Although, there is

nothing unusual for a government to be a partner in a business that it regulates. However, it

required a strong and self-governing regulatory mechanism if the activities of the oil industries

are to be checkmated and regulated in order to prevent the infringement upon basic rights of the

people owing to the pollution of the environment. The Nigerian government has failed to

guarantee independent regulation of the oil industry. It has left the power to regulate oil activities

in the hands of the Department of Petroleum Resources (DPR) which is a department in the

Ministry of Energy (Petroleum Resources) that forms part of the government cabinet.

Power of Institutional Bodies

The major body now responsible for the protection of the environment and regulation of any

activities likely to occasion environmental harms and human rights abuses is the National

Environmental Standard Regulation Agency Act which was created in 2007 to replace the old

Federal Environmental Protection Agency. The body is saddled with the responsibility to enforce

all laws relating to environmental protection in Nigeria. However, the body suffers a heavy blow

when the law creating it expressly excludes its interference in oil and gas matters. The research

found as a fact that this indeed is a deliberated effort to frustrate the existence of independent

body to protect Nigerian Environment knowingly well that more than 90% of environmental

related problems comes from the oil and gas matters.

The Court

The research reveals that the court approach to environmental cases is not given the environment

adequate protection it deserves. Data collection shows that environmental cases are being

decided based on the common law rules of civil remedies which imposes more burden on the

victims of environmental degradation. The research further revealed that less than 10% of related

environmental cases succeeded so far. Therefore, many victims were left without justice and

many were reluctant to approach court because of the lack of confidence in the ways and manner

by which environmental cases are handled.

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Human Rights

The data collection revealed that human rights offer many opportunities for the victims of

environmental degradation to seek justice in the law court and to regulate the activities of the

polluter. This is because unlike the civil law remedies of common law, human rights approach is

less burdensome and it obviates the hard rule of tort law. However, research further revealed that

this aspect of law has not being fully utilized due to the lack of environmental specialist to

exhaust the opportunity. But so far, cases instituted using the human rights approach fully

succeeded.

VI EXPECTED OUTPUT

The research is expected to bring out some useful outputs for the benefit of the government

For the Government

1 Ensure strong, independent and synchronized oversight of the oil industry including

impact on human rights

2 Strengthen the role of the National Environmental Standard Regulation Agency to

incorporate oil and gas matters

3 make sure that social and human rights impacts of all oil and gas project are made

mandatory.

4 Makes the environmental impact assessment of any project to be mandatory

5 Review the existing legal frameworks especially on the compensatory formula because

the existing formula is too ridiculous as it does not take into account the long-term effect

of the pollution on the victims of environmental degradation.

For the Companies

1 compiled with the international standards required in their operational activities

2 undertake a broad assessment of social and human rights impacts of all oil and gas

projects, and to ensure that they put in place a preventive measures to mitigate the effects

of their operation of the environment and human rights when it occur.

3 Earlier to engaging in any project ensure that the society is fully aware of the project, is

able to partake in a social and human rights impact assessment, and is given complete

information on the project and any other relevant data held by the company.

For the Court

1 The court should relax the rule relating to the institution of joint action. this would assist

the victims of environmental degradation to pool resources together in order to challenge

the activities of the major actors involved in pollution of the environment.

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2 Be ready and prepare to adopt the human right approach to the protection of the

environment since environmental degradation has a high impact on the enjoyment of the

basic rights.

For the Home Government of the MNCs

Ensure that people whose rights are injured in a foreign country where the companies operate be

given access to seek effective remedy in the home state, including access to the courts in the

event that the victims cannot access effective remedy in their own state.

VII CONCLUSION

The focus of this paper has been to provide partial and encouraging preliminary result of a

research on the legal frameworks on environmental protection in Nigeria and the need for a

human right dimension of the problem. The information in this paper provides the preliminary

report on the analysis made through data gathered from literature review and site visitation and

observations. Based on the analysis of literature collected and interviews conducted, a report was

produced in reviewing the existing legal framework on environmental protection in Nigeria. This

is because; the significant flaws of these laws laid the basis for the violation of human rights by

the MNCs with impunity. Current institutions on environment are found to be lacking in their

operational capacity. Therefore, there is room and the need for further improved or designed in a

more robust and effective manner. These findings led to the recommendations above in order to

ensure that the government adopt and improve in designing and developing of a high successful

enforcement mechanism in the future to meet the changing needs of the Nigerian Environmental

problems.

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