Dissertation

Topic: Enforceability of the Right to a Healthy Environment and Sustainable Development in Oil

Exploration Areas in Nigeria: Myth or Reality?

Introduction

The accelerating pace of globalization is having profound effects, either directly or indirectly, on the

lives of people in rich and poor countries alike. As the concept had played a key role in the

unprecedented increase in the prosperity of advanced countries and their companies in the last 50

years, so also poor developing states have their share in its aftermath. The issue became more

complex since African countries with enormous natural resources lacked the technological skills to

harness the wealth derivable from those minerals which were readily available in the developed

countries. Transnational corporations have become the most effective vehicle of economic production

today for which governments compete1 while company influence is growing even more. Although it

has been regarded as a myth, some companies have greater power than the political power of

governments2.

The effect of globalisation promoted the influx of exploration companies from various developed

countries into the economies of developing states mainly in Africa. Western nongovernmental

organisations also increased their involvement in developing countries as a result of them being more

profitable and the immense natural resources these countries possess.3 The infantile condition of most

of the developing states after independence made them indirectly dependent on the colonial

government.4 Lack of the basic infrastructure, machinery and technology made some basic areas of

1 Addo, M.,(ed) Human Rights Standards and the Responsibility of Transnational Corporations, 39- 45( Great

Britain, 1999: Kluwer Law International) at pg 40. See also Clapham, A., Human Rights Obligations of Non-

State Actors( United Kingdom, Oxford: Oxford University Press, 2006) at pg 195-207 2 Id

3 S. Bokhari, F., “Economic Development through Globalisation in Nigeria. An Analysis of Shell& IMF

Structural Adjustment Programs” Malardalen University Thesis, 2008 at page 1 4 Nigeria still relied on the British Government even after independent for education, health and petroleum even

after the 1960 Independence.

the economy5 to still be in the hands of the Colonial governments whose companies extracted the

mineral resources of these new independent countries with little or no regards to their environmental

laws.

Exploration countries further relax their environmental policies so as to attract investors and MOC

who have the technology to carry out the exploration. The combined effect of weak environmental

laws and resultant activities of these Multinational Oil Companies over the years have resulted into

many instances of environmental degradation and threat to the livelihood of the citizens in the

explorative areas. Nigeria‟s environmental conditions have deteriorated over the years as over 98% of

the country‟s export earnings and 83% of the government‟s total revenue6 are derived from crude oil

exploration gotten from the Niger Delta region of the country. Different reports7show that these

environmental degradations have adverse impacts on the lives and health of the indigenes.

On the 19th of December, 2011, a major spillage occurred in one part of the exploration areas of

Nigeria which is recorded to be the largest in 13 years.8 Considering the fact that a lot of exploration

activities are done offshore these days, enforcement of the right to healthy environment and

sustainable development in the exploration areas therefore ought to be promoted more as exploration

activities are performed in areas where the effects will have more damaging impact when not properly

managed.

The aim of this dissertation is to examine the enforceability of the Right to a Healthy Environment

(RHE) in Nigeria and consider how instrumental its enforcement is to sustainable development of the

country. It further argues that environmental degradation violates basic human rights of the people

which are provided for in Conventions and Instruments Nigeria is signatory to and has ratified. For

the purpose of this analysis, the dissertation is divided into 6 sections. Section one deals with

5 In Nigeria, oil was explored by foreign companies who were given the lease under the old concession

agreement for a period of 50 years. 6 Bayode & Ors., “Environmental Implications of Oil exploration and Exploitation in the Coastal Region of

Ondo State, Nigeria: A Regional Planning Appraisal” Journal of Geography and Regional Planning Vol. 4(3),

pp.110-121, March 2011 at page 110 7 In 2009, a detailed report on the state of the Nigeria environment was compiled and released by Amnesty

International. See 8 This reported a spill of over 20,000 barrels of oil per day which happened while a tanker was loading oil

leading to the closure of the 200,000 barrel per day Bonga Facility.

environmental degradation as a major issue in developing economies and Nigeria specifically. Section

two defines what is meant by RHE under International Instruments, Special Reports, Regional

Instruments, provisions of Nigeria‟s 1999 Constitution and other national laws. Section three

examines the implementation of the right and other procedural laws that guarantee RHE while section

four discusses the environmental impact of exploration activities, the different companies involved in

exploration activities in Nigeria and exploration areas where activities are performed. Section five

analyzes the Nigeria situations and problems associated with enforcement of RHE. Finally, Section

six provides findings, recommendations and conclusions on enforcement of RHE in Nigeria.

Chapter 2: WHAT IS MEANT BY THE RIGHT TO HEALTHY ENVIRONMENT?

The right to healthy environment is categorized as a new generation right guaranteed under different

laws and instruments9. As far back as the 1972 Stockholm Conference on the Human Environment, an

effort was made to strike a balance between human rights and environmental protection.10

However,

the relationship between human rights and the right to a healthy environment has been perceived from

different perspectives by authors over the years. Some scholars believe that there are no human rights

without an environmental right11

while some see the right as either an existing of emerging one.12

A

variety of other scholars see the right to a healthy environment as one ancillary to other human rights

such as right to life, right to information and right to health.13

It was the UN Conference on Human

Environment that first demonstrated the nexus between environment and development thereby

adopting a human rights approach to environmental protection.14

In an attempt to define this concept

of RHE, the provisions of different Conventions and International Instruments will be examined.

There is a level of disparity with regards to RHE caused by an ongoing debate over the extent to

which courts can pronounce such rights as justiciable.15

Below is a general overview on International

Instruments on RHE:

The 1972 Stockholm Conference

The concept of the RHE is not a new invention. It date back to the United Nations Stockholm

Declaration of 1972 which provides that: “Man has the fundamental right to freedom, equality and

adequate condition of life, in an environment of a quality that permits a life of dignity and well being,

9 Hayward, T., Constitutional Environmental Rights (United States, Oxford: Oxford University Press, 2005) 27-

31 10

Dinah Shelton, „Human Rights and the Environment: What specific Environmental Right Have Been

Recognised?‟ 35Denv. J. Int‟l L. & Pol‟y 129 2006-2007 11

Fitzmaurice, M., „The Right of a Child to a Clean Environment‟, 28, Indiana Journal of International Law,

1988, 1-32. See also Anderson, M., „Human Right Approaches to Environmental Protection: An Overview‟, in

Boyle, A., and Anderson, M.,(eds.), Human Rights Approaches to Environmental Protection, Oxford: Clarendon

Press. 12

ibid 13

Giorgetta, S., „The Right to a Healthy Environment, Human Rights and Sustainable Development,

International Environmental Agreements: Politics, Law and Economics‟ 2: 173-194, 2002 at pg 175. See also

Picolotti, R., Linking Human Rights and the Environment, (Arizona: University of Arizona Press, 2003). Here,

the authors linked the different rights associated with RHE. 14

Ibid i75 15

B. Hill, S. Wolfson., N. Targ., “Human Rights and the Environment: A Synopsis and Some Predictions” 16

Geo. Int‟l Envtl. L. Rev. 359 2003-2004 at pg 374

and he bears a solemn responsibility to protect and improve the environment for present and future

generations.”16

(Emphasis mine)This specifically provides for a right to a healthy environment but

does not stop there. It further provides for a duty imposed on the individual and the state towards

sustainable use of the environment in cognisance of generations yet unborn17

. This provision has

considered a right to a quality environment as a necessary fundamental human right which states

should put into consideration in making their laws. The interrelatedness and independence of human

rights also makes RHE recognised in other human rights such as rights to life, health, water, child‟s

right etc. This view was further heralded by the former Vice President of International Commission of

Jurists, G. Weeramantry when he submitted that protection of environment is the sine qua non for

other numerous human rights.18

The Stockholm Declaration has however been criticised as a narrow provision which pronounces a

right that literarily does not exist on its own but that which finds expression in other rights as stated

above. Where this is the case, the RHE can only be enforced in life threatening situations19

because it

is seen as a derivative right from other rights.

The 1992 Rio Conference on Environment and Development

One of the major distinctive qualities of the Conference was putting the issue of the right to clean and

healthy environment within the context of sustainable development. Principle 1 of the Rio

Declaration provides that humans are the central concern for sustainable development and they are

entitled to a healthy and productive life in harmony with nature.20

One of the major criticisms of the

Rio Declaration is the avoidance of the use of the word „right‟ even though it established a connection

between the concepts of clean and healthy environment, development and the protection of human

16

Declaration of the United Nations Conference on the Human Environment, Principle. 1 (June 16, 1972) U.N.

Doc. A./ CONF.48/14/Rev.1 (1973)[ herein referred to as the Stockholm Declaration] 17

Santillo, D., Johnston, P., „Ethical Standards and Principles of Sustainability‟ in Addo, M.,(ed) Human Rights

Standards and Responsibility of Transnational Corporations (The Hague, Kluwer International, 1999) at 351 18

Gabcikovo-Nagymaros Project (Hungary v. Slovakia) 1997 I.C.J. 97, 97-110 (Sep 25) (separate opinion of

Judge Weeramantry 19

Atapattu, S., „The Right to a Healthy life or the Right to Die Polluted?: The Emergence of a Human Right to a

Healthy Environment Under International Law‟ 16 Tul. ENVTL.L. J. 65, 72-73 (2002) 20

Ibid 15 at 376

health.21

The Rio Declaration shows clearly that it is a more subtle approach on RHE as compared to

the Stockholm Declaration. This was attributed to the fact that states are beginning to see the

importance of such rights and the problems associated with making it a justiciable right as opposed to

other spelt out rights in International Instruments and National Laws.22

It further reflected the

complexities governments of different countries face, which are political, social and economic, in the

quest for sustainable development.23

The UN Committee on Economic, Social and Cultural Rights

Despite considerable efforts made to establish RHE as a recognised and enforceable right of

international law, it was still difficult to achieve this feat. Even though some other basic socio

economic rights could be stretched to cover the RHE, it was not spelt out in any instrument for it to

have a legal status. In November 2002, the U.N. Committee on Social and Cultural Rights adopted a

comment on Article 11 of the ICESCR where they stated that “the human right to water is

indispensable for leading a healthy life in human dignity…”24

the enforceability of some other rights

under ICESCR are sine qua non to realization of the RHE. On this premise, it can be deduced that

joint provisions of Article 11 of the ICESCR which provides a right to an adequate standard of living,

Article 25 of the UDHR (right to adequate standard) and Article 6 of ICCPR (right to life) provides

for different rights which are all linked to the environment.25

Regional Instruments

As pointed out above, the RHE has been omitted in International Instruments because some scholars

believed it has not achieved the status of a right.26

It becomes more problematic when it merely has

21

ibid 22

See Ibid 15, pages 381-387 23

Agenda 21 of the Rio Conference was also produced which was a blueprint on sustainable development

available at http://www.unep.org/documents/default.asp?DucumentID=52 24

Substantive Issues Arising in the Implementation of the ICESCR, U.N. Committee on Economic, Social and

Cultural Rights, 29th

Sess., U.N. Doc. E/C.12/2002/11(2002), available at

Http://www.unhchr.ch/html/menu2/6/gc15.doc 25

Picolotti, R., Linking Human Rights and the Environment, (Arizona: University of Arizona Press, 2003) 74 26

Pogge, T., World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms, in Hayward, T.,

Constitutional Environmental Rights (United States, Oxford: Oxford University Press, 2005) 27-31

soft law status thus having just persuasive effect. On the other hand, the RHE is more prominent in

regional instruments as compared to international Conventions which may be as a result of a more

manageable implementation and enforcement effects it may have in regions than international arena.

The American Convention on Human Right

This Convention has a similar provision on RHE to the African Charter on Human Right. Although

both provide for environmental rights, the American Convention makes the RHE an individual right

rather than a collective one as provided in its African counterpart. The additional protocol to the

instrument provides that “everyone shall have the right to live in a healthy environment and have

access to basic public services.”27

In addition to the individual characteristic of the provision, it

follows the fundamental right approach and not the expressly conditioned approach on development

as the African Charter.28

The Aarhus Convention

The European governments in their effort to enforce the RHE negotiated a Convention under the

auspices of the United Nations Economic Commission for Europe to promote environmental health.

This Convention established the obligation of European states concerning access to information,

public participation and access to justice with the overall goal of empowering the people to enjoy the

human right to a healthy and clean environment.29

This Convention emphasises the importance of

public participation to the overall goal of achieving the right to a clean and healthy environment.

Apart from the international and regional Conventions that are mentioned above, some regional

bodies have basic provisions which promote RHE. The two major ones which are of relevance are the

Inter-American Commission on Human Right and the European Commission on Human Right.30

As

27

Additional protocol to the American Convention on Human Rights, Nov. 17, 1988, Art. 11, 28 I.L.M. 156,

161 28

Ibid 15 at 379 29

Convention on Access to Information, Public Participation in Decision Making and Access to Justice in

Environmental Matters, June 25, 1998. Doc. ECE/CEP/43 30

This is reflected in their reports as seen in INTER-AM. C.H.R., REPORTS ON THE SITUATION OF

HUMAN RIGHT IN ECUADOR, OEA/Ser.L/V/II.96, doc. 10 rev. 1(1997). This also can be seen on reports for

Brazil, Paraguay amongst others.

documented in the report of the former, which is of utmost similarity to that of Nigeria, the

Commission listed the threats environmental degradation from pollutions caused by extractive

industries, have on the realization of peoples‟ RHE. The Commission‟s report also shows that the

“derivative right” approach of the Stockholm Declaration does not prevent development but requires

it to take place in a manner that respects individual rights.31

General Comments on the above Instruments

Under different legal systems, the RHE is seen as a procedural one which the courts in different

jurisdictions have used substantive rights to enforce in the past years. The African Charter however

makes express provision for this right although rarely enforceable in the jurisdictions of most African

States when compared to other countries. For instance in India, the courts have extended the right to

life to cover the right to a healthy environment32

and similar incidents have happened in different

states such as the United Kingdom and Ecuador and the United States.

As observed from the Rio Declaration to the American Convention on Human Right and Aarhus

Convention, the rights to development, information, and public participation are often linked to the

right to healthy environment making them a bit interlinked33

and also being a collective rather than

individual right34

. In Nigeria, the provision of the African Charter makes the institution of

environmental right action more stringent as the harm suffered must be a collective one. Where an

environmental degradation has happened to the environment but an individual has suffered the harm,

such person may be hindered from instituting an action as he lacks locus standi under the provisions

of the applicable law.

The work of the UN Special Rapporteur

In an effort to understand the connection between human rights and the environment, the UN

recommended the appointment of a Special Rapporteur on human rights and the environment. The

31

Id. at 89 32

Subhash Kumar v. State of Bihar AIR 1991 SC 420, 424, para , M. C. Mehta v. Union of India (1987) 4 SCC

463, 478, para 1, Attakoya Thangal v. Union of India 1990 (1) KLT 580, 583, para. 7 33

Id., The Aarhus Convention 34

Ibid 28., The American Convention on Human Rights

Subcommittee appointed Ms. Fatima Zohra Ksentini, a human right lawyer and an activist from

Algeria as Special Rapporteur. The aim of her mandate was to observe the nexus between human right

and the environment. Between 1991 and 1994, Ms. Ksentini produced 4 reports focusing on the link

between the two areas which are regarded as one of the most thorough examination of the connection

between human right and the environment35

.

The 1991 report is the first to critically examine the link between human rights and other

constitutional provisions which relates to the environment. It went further to analyse the

interrelatedness of different rights and their link to the right to environment. The distinctive feature of

the report as expressed by Dias was the delineation of human rights violations that result from assault

on the environment like poverty, climate change, pollution and other issues such as deforestation and

the loss of biological diversity to erosion.36

The report further elaborated through different

illustrations other rights that may have been violated along with the RHE. In its preliminary

conclusion, the report stresses the link between human right and the environment and the justification

of the right to a clean environment. The report later recommended effective implementation of the

RHE through human right standards and emphasises RHE as both individual and collective right. It

included the right to conservation, prevention of ecological harms and makes mention of

environmental degradation that affects the rights of vulnerable people and groups.37

Ksentini‟s 1992 report examined laws of 49 countries and the European Community draft Charter on

environmental rights and obligations of other instruments. It reviews provisions and decisions of other

committees and international human right bodies and summarizes the jurisdiction behind the ideas and

workings of these committees. It finally concluded with the examination of the Rio Principles and

Agenda 21 of the UN Conference on Environment and Development.

The third report which was released in 1993 focused on the origin and development of the rights to

environment at the national, regional and international levels, specifically considering their laws,

35

Dias, A., „Human Rights, Environment and Development: With Special Emphasis on Corporate

Accountability‟, (2002) Human Development Report Background Paper, pg 18 36

Id 37 37

Id 37

Court Judgements and Constitution. It also included the analysis of different working groups38

and

specialized UN agencies39

, International Law Commission as well as the International Court of Justice

in her attempt to establish this link. The report‟s conclusion was premised on its observations that

there is wide acceptance of environmental right and calls for immediate implementation of this right

as what she considers is lacking.40

The 1994 final Report began by recapitulating the legal foundation to the right to healthy environment

as contained in different human rights instruments. It created the nexus between the right to

development, public participation and the right to environment. It also spelt out the implications of

environmental degradation on the people and jeopardy to sustainable development. It painstakingly

detailed the effect of the environment on the enjoyment of different fundamental rights and ultimately

their interrelatedness. The 11 Principles document captured most of the relevant rights which relates

to human rights and the environment. Principle 2 is of great importance as it makes the RHE and other

rights in other Covenants enforceable in a single document. This is of great relevance to Nigeria as

there is no excuse of the in-justiciability of the rights contained in the Chapter 2 of the 1999 Nigeria

Constitution. Principle 4 brings sustainable development doctrine into focus as a major requirement

for enjoying full RHE.

Principle 5 sheds a lot of light on persistent problem of environmental pollution in the inland waters

and offshore platforms the oil companies are exploring from41

. However, the major problem which

may be encountered is the implementation and enforcement of these principles as they ought to reflect

in the laws being promulgated in Nigeria. It demonstrates that accepted environmental and human

rights principles embody the right of everyone to a secure, healthy and ecologically sound

environment. It however ought to state by whose standard the right should be measured, if it is the

State‟s or international bodies like UNEP.

38

This includes the group on Indigenous people, the Vienna World Conference on Human Rights, Commission

on Sustainable Development 39

Agencies such as the WHO, FAO and the UN High Commissioner for Refugees 40

Id 37 41

Draft Declaration of Principles on Human Rights and the Environment, 1994 3/7/08 assessed at

http://www.yale.edu/lawweb/avalon/diana/undocs/33198-11.html last visited on the 24th of February, 2012

The report concluded by stating the problem of environmental right as an international one and called

for immediate implementation of the RHE by relevant human right bodies from international, regional

to national level. It also made recommendation for the appointment of a special Rapporteur on Human

Right and the Environment and called for adoption of environmental human right as set out in Annex

1 of the Report.42

The African Charter, Commission and Court

The African Charter makes express provision for the RHE as an individual as well as a collective

right. Article 24 of the ACHPR provides that “[a]ll peoples shall have the right to a general

satisfactory environment favourable to their development”. This provision creates a link between the

environment and sustainable development of the people. The Charter reinforces the fact that

environmental protection is needed to properly achieve a level of sustainable development. Some

have however argued that from the couching of the provision as expressed in Article 24, this right has

been treated as one more of aspiration rather than justiciable.43

The Commission is officially charged with three major responsibilities summarised as: protection,

promotion of human and peoples‟ right and the interpretation of the African Charter on human and

Peoples‟ Rights under the conditions laid down by the Charter, and according to the rules provided for

in the Rules of Procedure of the Commission.44

Although the Commission has presided over high profile cases such as the SERAC v. Nigeria

(Ogoniland case)45

and giving a world acclaimed ruling46

, their impact has not been so felt when

compared with the European Court of Human Right. This observations stems from the fact that there

42

This was in form of draft principles on human right and the Environment but will not be discussed as a matter

of relevance to this paper. 43

Dennis, J., Stewart, D., “Justiciability of Economic, Social, and Cultural Rights: Should There be an

International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?” (2004)

98 A.J.I.L. 462, 44

The ACHPR website http://www.achpr.org/english/_info/mandate_en.html visited last on the 10th

of January,

2012 45

Reported in ACHRP, Communication 155/96 (2002) 46

Boyle, A., International Law and the Environment (United Kingdom, Oxford Publishers) 2009 at page 273

are a lot of environmental related cases in Africa where the commission‟s impact could have been felt

considering the express provision of Article 24 of the African Charter on RHE.

The African Court was established in the protocol to the ACHPR which was adopted by the member

states in the OAU in 1998. Although the court is at the moment ready to receive cases, it is still at its

infant stage as it just recently completed its drafting of procedural rules.47

The Nigeria Constitution and Laws on Environment

Environmental Regulations in Nigeria over the years have been subjected to series of changes with no

real effectiveness. This may be attributed to the instability in governance over the years and the

military governments which were characterised by abuse of human rights making RHE unenforceable.

Constitutional and Policy basis of Environmental Regulation

The 1999 Constitution of the Federal Republic of Nigeria in Section 20 provides: “[t]he state shall

protect and improve the environment and safeguard the water, air and land, forest and wild life of

Nigeria.”48

Article 4 of the African Charter provides that the people shall have the right to a

satisfactory environment favourable to their development. Although the provisions of Sec. 20 are

among the fundamental objectives and directive principles of the state policy hence making it not

justiciable, the state have inherent power to make laws for peace, order and governance, which can be

used as the basis for environmental legislation.49

The Federal Environmental Protection Agency Act,

The main environmental laws in Nigeria are the Federal Environmental Protection Agency Act

(FEPA), the guidelines and regulations made pursuant to this, the Environmental Impact Assessment

(EIA) Decree, the Oil in Navigable Waters Act and the Harmful Wastes (Special Criminal Provisions)

Act. The FEPA Act is a comprehensive set of environmental laws dealing with establishment of

47

Report on the African Court of Human Right website on www.african-court.org/en/court/about-the-

court/institutional-background/ visited on the 10th

of January, 2012 48

The 1999 Constitution, Cap 10 LFN, 1990 49

Emeseh, E., “Limitations of Law in Promoting Synergy between Environment and Development Policies in

Developing Countries: A Case Study of the Petroleum Industry in Nigeria” 24 J. Energy Nat. Resources L. 574

2006 at 584.

regulatory agencies, general oversight and management of all aspects of environment.50

The authority

exercises power to control pollution, environmental liability and enforcement as regards the

environment.51

The now Federal Ministry of Environment exercises power to prohibit acts which are

damaging to the environment and creates criminal penalties for such breaches committed by corporate

bodies or individuals.52

Section 21 of FEPA extends the liability provided for in its Sec. 20 to include

costs of clean ups and restoration of the environment where a wrong has been committed.

The 1992 Environmental Impact Assessment Decree

This decree was enacted to curb some damaging environmental activities resulting from particular Oil

production projects in Nigeria. Sec. 2 of the decree makes it a requirement for companies to conduct

EIA for certain projects which may have adverse effect on the environment when it is not properly

undertaken. Pursuant to this, FEPA has developed different guidelines (both general and specific) to

make this better implemented. According to the law, failure to conduct EIA is a criminal offence

which is punishable with fine or imprisonment or both.53

The Oil in Navigable Waters Act54

This Legislation deals specifically with water pollution by oil and was introduced to implement the

terms of the International Convention for the Prevention of Pollution of the Sea by Oil 1954- 1962. It

makes it a criminal offense to discharge of oil into the water which happens mostly in Nigeria‟s inland

areas where most of the oil activities are being carried out. Section 6 of the Act provides that anyone

that violates the provision of the law shall be liable to a fine exceeding 2000 Naira while section 13

provides for the enforcement of the laws by the High Court or other courts of equivalent superior

50

Section 4 of The Federal Environmental Protection Agency (FEPA) which is also known as the Federal

Ministry of Environment 51

Id Sec. 4 52

Id Sec. 20 53

Sec. 62 of the EIA Decree 54

1968, Cap 337, Law of Federation of Nigeria, 1990

jurisdiction in Nigeria. The major problem associated with the law is the amount of the fine. This

needs to be reviewed in line with economic development to make the fines deterrent enough55

.

The Harmful Wastes (Special Criminal Provisions) Act56

This law prohibits the dumping, transportation and depositing of harmful wastes on the land,

territorial waters and the Exclusive Economic Zone of Nigeria. This law applies to offshore activities

also and contravention of its provisions may give rise to sanctions against such violators. Section 6

provides for a punishment of life imprisonment for offenders as well as the forfeiture of land or

anything used to commit the offence. Also, section 12 defines the civil liability of any offender who

would be liable to persons who have suffered injury as a result of his offending act.

Petroleum Act57

This is the main legislation which governs practically all major areas of petroleum exploration,

exploitation and production in Nigeria. However, there are other regulations58

which are made under

the Petroleum Act but would not be discussed under this section as they are of little or no relevance to

this discussion. Section 9 of the Act empowers the Minister to make policy for the regulation for the

oil industry including its environmental impact.59

In furtherance of this, the Minister has

administrative powers to suspend operations under a licence where there is non compliance with good

oilfield practices.60

The law further provides precaution be taken against occurrences of pollution and

where such happens, action should be taken swiftly to curb it. This is in alliance with the

precautionary principle of the Rio Declaration which is mentioned above.

55

See Echefu, N., Akpofure, E., “Environmental Impact Assessment in Nigeria: Regulatory Background and

Procedural Framework” UNEP EIA Training Resource Manual, 2002, UNEP at 63 56

Cap H1, LFN 2004 57

1969, Cap 350, LFN 1990 58

Petroleum (Drilling and Production) Regulations, Legal Notice69 of 1969, now contained in Cap 350, LFN

1990, Mineral Oils (Safety) Regulations and Petroleum Refining Regulations and Oil Pipelines Act 59

Ibid 49 at 587 60

Section 8(1) (f)(g)(h) of the Petroleum Act

Other Environmental Provisions

There are other laws in the environmental area which are effective as national laws in Nigeria such as

the Associated Gas Re-Injection Act, The Endangered Species Act, and Exclusive Economic Zone

Act etc. Under the 1999 constitution, the state governments have concurrent jurisdiction to legislate

on environmental issues and such laws have being on the increase by different state legislature.61

61

For instance, the Lagos State Government in Nigeria

Chapter 3: Implementation and Enforcement of Human Right to Healthy Environment

Sequel to the previous chapter, the RHE as correlative provides for the state‟s obligation to implement

and enforce those rights. This duty is at the same time extended to citizens to protect and promote the

environment and sustainable use of the natural resources. The citizens also have a right to participate

in decision making and right to be duly informed of activities that will affect their enjoyment of RHE.

Shelton‟s effort to create the link between general human rights and the environment can be examined

from four points of view.62

Firstly, international environmental laws incorporate those human rights

guarantees deemed necessary or important to ensuring effective environmental protection. Secondly,

environmental human right violation can be deduced form existing human rights which have been

affected and at same time affected their enjoyment of such rights. For instance, both international and

environmental law establish a substantive right to a safe and healthy environment and international

law creates an ethical obligation for the individuals which include protection of the environment and

human rights.63

For the implementation of the RHE, it is not enough to recognize the procedural rights which may

exist but to also create a balanced way of enforcing this right. For the purpose of this dissertation, the

procedural laws will be discussed through international, regional and national laws which they have

been provided for.

Procedural Environmental Rights

As said above, RHE has been enforced through other substantive rights. The failure to pronounce it a

substantive right at the Stockholm Conference left scholars and activists no choice than to identify

those rights whose enjoyment would be considered a prerequisite to effective environmental

protection. They have focused on the procedural rights to environmental information, public

participation in decision making and access to remedies when breach of the right has occurred. The

62

Shelton,D., “Human Rights and the Environment: What Specific Environmental Rights Have Been

Recognised?” 35 Denv. J. Int‟l L & Pol‟y 129 2006-2007 63

id

wordings of the Stockholm Principle 164

, Principle 10 of the Rio Declaration65

and ultimately the

landmark Aarhus Convention66

contain the three procedural rights which are also guaranteed in other

Human Rights Instruments. This Convention is the first environmental treaty to incorporate and

strengthen the language of Principle 1 of Stockholm Declaration. The preamble provides for

everybody‟s right to live in an environment adequate to his or her health and also improve the

environment to benefit his present generation and future generation. The wording of this preamble is

couched in such a way to focus not only on the right which is being examined but putting into

cognizance the doctrine of sustainable development and use. The Aarhus Convention which was

sponsored by the UNECE and opened to signatories of over 55 member states which includes United

States and Canada acknowledges that its implementation will contribute to strengthening democracy

in the region of UNECE.67

Right to Environmental Information

This can be defined as freedom to seek information or broadly, a right to access to information or a

right to receive it.68

This state obligation is further expanded on the premise that the state has a duty to

abstain from interfering with the information which ought to reach people as regards private projects

which may adversely affect their environment and well being. Environmental information can serve

as a prerequisite for obtaining licenses and legal imposition on the state to disseminate such

information will provide the public the broadest basis for informed decision making.69

Information rights are provided for in different environmental instruments from Conventions to

regional treaties and even different courts have made pronouncement of existence of such procedural

right. Article 6 of the UNFCCC provides for state party‟s obligation at national, sub-regional and

regional level in accordance with national laws and regulations guarantee of public access to

64

United Nations Conference on Environment and Development, June 3-14, 1992 65

Rio de Janeiro, Braz., Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (Aug.

12, 1992)[herein referred to as Rio Declaration] 66

Convention on Access to Information, Public Participation in Decision Making and Access to Justice in

Environmental Matters, June 25, 1998, 2161 U.N.T.S. 447 67

Ibid note 61 at 134. 68

Id note 66 69

Id note 67

information and public participation.70

Although the Convention on Biological Diversity does not

oblige to provide information, Article 14 provides for the state‟s duty to “as far as possible” introduce

“appropriate” environmental impact assessment procedures and allow for public participation in such

procedures.71

On the other hand, the regional instruments are more elaborate on their provisions on the right to

information. The 1992 Helsinki Convention on the Protection and Use of Transboundary

Watercourses and International Lakes (Art. 16)72

, 1992 Espo Convention on Environmental Impact

Assessment in a Transboundary Context (Art. 3(8))73

and the 1992 Paris Convention on the North-

East Atlantic (Art.9)74

all provided for state‟s obligation to provide information on activities which

may have indirect impact on the well being and environmental health of the populace.

Some instruments instruct the state to inform the populace of specific environmental hazards they

may be exposed to from the activities of the company. The preamble of the International Atomic

Energy Agency Joint Convention on the Safety of Spent Fuel Management and on Safety of

Radioactive Waste Management75

provides for the states duty to inform the public of the danger

associated with spent fuel and radioactive waste management. This was more reinforced by the

provisions of art. 6 and 13 of the same Convention which provides for the state‟s obligation to take

appropriate steps to ensure procedures are established and implemented to make information available

to members of public on the dangers associated with such facilities.

The World Health Organisation and the European Charter on the Environment and Health have made

non binding declarations stating that every individual is entitled to information and consultation on

the state of the environment.76

The Bangkok Declaration and Arab Declaration on Environment and

Development and Future Perspectives both speak of rights of individuals to acquire information about

70

Framework Convention on Climate Change, Art. 6, May 9, 1992, 31 I.L.M. 849 71

Convention Biological Diversity, art. 14, June 5, 1992, 31 I.L.M. 818 72

March 17, 1992, 31 I.L.M. 1312, 73

Feb. 25, 1991, 30 I.L.M. 800 [ herein after Environmental IA Convention] 74

Sept. 22, 1992, 32 I.L.M. 1069 75

Sept. 5, 1997, 36 I.L.M. 1431 76

European Charter on Environment and Health, art 1. Dec 7-8, 1989, available at

http://www.euro.who.int/aboutWHO/Policy/20010827_3

environmental issues which may be relevant to them.77

It is worthy of stating in addition to this that

Human Right texts generally contain rights to information and states obligation to provide this to the

public. Article 19 of the UDHR, Art. 19(2) of the ICCPR, Art. 10 of the Inter-American Declaration

of Rights, Art. 13 of the American Convention on Human Rights, Article 9 of the African Charter on

the Rights and Duties of People all make provision for a right to information accessible to the

public.78

The European Convention on Human Right in its provision provides for “freedom to

…receive…information.”79

From the examination above, it is clear that the procedural right to information is provided for in

different conventions and instruments. However there has been reluctance on the part of Judges in

national courts to extend such rights to environmental degradation issues and has also led to divergent

opinions of judges in some cases.80

Public Participation in Environmental Decision making

The second aspect of the procedural rights is the importance of the people‟s opinion as regards

projects which will have impact on their lives as citizens which involves public involvement in

environmental impact and granting permits for project implementers. Public participation has two

components: the right to be heard and the right to affect decisions.81

It is accorded to the citizens as

well as foreigners to influence decision which will have lasting effect on their environment. A lot of

agreements (both multilateral and bilateral) make provisions which guarantee or contain public

participation.82

Art. 4 of the Climate Change Convention obliges parties to promote public awareness

and “encourage the widest participation in this process, including that of non- governmental

agencies.” In a like provision, Art. 14(1) (a) of the Convention on Biological Diversity makes

77

Shelton, D., & Kiss, A., Judicial Handbook on Environmental Law 28-29 (United Nations Env‟t Programme

2005) 78

Ibid note 61 at 137 79

Convention for the Protection of Human Rights and Fundamental Freedoms, art. 10, Sept. 3, 1953, 213

U.N.T.S. 222 80

In Anna Maria Guerra and 39 Others against Italy, App. No. 1496/89, 26 Eur. H.R. Rep. 357 at para. 61

(1998) 81

Ibid note 61 at 139 82

An example is the Protocol to the 1979 Convention on Long-Range Transboundary Fluxes, art. 2(3)(a)(4),

Nov 18 , 1991 31 I.L.M. 568

provision for public participation as relates to the EIA procedures when they are embarking on an

environmental project. A similar provision is made as to the state‟s obligation to involve the public in

decisions in areas likely to be affected by transboundary environmental harm.83

As with the right to

information above, the right to participate is also provided for in different human right conventions84

but the application may be the problem.

The Right to a Remedy for Environmental Harm

The third aspect of the right deals with remedies available to people whose rights have been affected

by the activities of MOC. The law provides that where there is a wrong, there is also a remedy

commensurate to the harm that has been done. The requirement of proper redress and remedies

imposes an obligation on the state to remove any jurisdictional barriers which may hinder a person

who has suffered harm/ injuries from getting redress in the national courts. The access to remedy must

be non discriminatory85

and there must be equal access86

to justice in redressing an environmental

wrong. This right is provided for in both international and regional instruments and also extends to

compensation for pollution.87

The African Charter contains a broad right to remedy under Art. 7

when supplemented by Art 21 (2) which provides for the right to adequate compensation for the

spoliation of the resources of a certain set of people in a community.

The independence of the Judiciary is of great importance to getting remedy within any government as

it guarantees the existence of the right in the first place. This is buttressed by Art. 26 of the African

Charter which imposes a duty on the State Parties to guarantee the independence of the courts and to

ensure freedom guaranteed by the Charter. The remedy is however not limited to litigated matters and

judgements by the courts but also settlements or arbitral awards given for a harm suffered. This has

been a major problem with the environmental claims in Nigeria as most of them are settled out of

court or withdrawn before judgment after offer has been made by the MOC. This is of great benefit to

83

The 1991 Espo Convention on EIA in a Transboundary Context, Art. 3, Feb 25, 1991, 30 I.L.M. 800 84

Art. 21 of UDHR, Art. 20 of the American Declaration of Rights and Duties of Man, Art. 13 of the African

Charter. 85

Convention on the Law of Non-Navigational Uses of International Watercourses, Art. 32, May 21, 1997, 36

I.L.M. 700 86

Environmental IA Convention, Supra note 72 87

In Zimmermann v. Switzerland, 66 Eur. Ct. H.R. (ser. A) para. 32(1983)

the individual who‟s right has been violated but bad for the judicial system as the cases are struck off

the courts list and no precedent formed.88

Having stated some of the basic procedural law which are attached to the RHE above, it is important

to mention the other substantive legal and extra- legal concepts which are relevant to achieving

environmental rights. These are spread all over different instruments and treaties and the basic ones

will be discussed as follows;

The Right to Life

Sections of three Human Right Treaties89

provide for the Right to Life which states to an extent the

prohibition of the state and its licensed agencies to take the life of citizens of that particular state

either intentionally of negligently. The right to environment is often stretched to cover right to life in

extreme cases where there is threat to life or death occurring as a result of the environmental

degradation. The Human Rights Committee held that the right to life puts a responsibility on the state

to reduce infant mortality and raise life expectancy through its environmental actions. The right to

environment can indirectly be extended to other human rights if we look at the interrelated nature of

human rights. Where for instance the environment is polluted and an action not favourable to health

which may reduce one‟s life is being conducted, then we can say the right to life has been affected.

In the case of EHP v. Canada, where a group of Canadian citizens argued that the storage of

radioactive substances around their homes threatened their right to life, the Human Right Committee

held amongst other things that the case raised serious issues, with regards to the states obligation to

protect human life.90

Also in a similar vein, the dumping of radioactive wastes and conducting of

nuclear tests in the sea were held to be violation of the right to life contained in Article 2 of the

European Convention on Human Rights.

88

The Nigerian legal system is based on judicial precedents and this is lacking for other cases to follow where

similar facts or claims are involved 89

The International Covenant on Civil and political rights, 1966, American Convention on Human Right, 1969

and the African Charter on Human and Peoples‟ Right, 1981 90

Communication No. 67/1980, 2 Selected Decisions of the Human Rights Committee (1990), 20

As will be examined later, while it is true that some judges are very reluctant to extend the violation

of right to healthy environment to right to life, some have extended the violation of RHE to right to

life.91

The Right to be Free from Interference with One’s Home and Property

Another area where the right to environment can be stretched into is the right to be free from

interference to home and property. The wording of Article 8 of the European Convention provides

that everyone has the right to respect for his private and family life and his home. Article 1 of the

protocol likewise provides further elaboration, stressing the importance of every natural or legal

person being entitled to peaceful enjoyment of his possession. The American Convention in Article 11

(2) and 21 provides for similar right to non interference as above. From these provisions, it is possible

for a person whose environment has been subject to continuous interference such as pollution to claim

for violation to a RHE. It must however be stated that such action must be traceable to the state either

by its inaction to stop the polluter or by condoning the acts of polluter who is a licensee of the state.

In the case of Lopez-Ostra v. Spain92

where the applicants who complained that there is a violation of

their rights because of health problems suffered as a result of fumes from a tannery waste treatment

plant which operates a few meters away from their home. The European Court of Human Right held

there is a violation of their rights as Article 8 has been breached.

In conclusion on this case and a lot of similar ones93

, the general principle is that pollution or other

degradation which has deleterious effects either directly or indirectly, above a certain level upon a

person‟s home or private family life will constitute a breach of Article 8(1), provided the state is

responsible94

.

91

Olga Tellis v. Bombay Municipal Corp. AIR 1986 SC 180, State of Himachal Pradesh v. Umed Ram AIR

1986 SC 847, Attakoya Thangal v. Union of India 1990 (1) KLT 580 92

Ser. A No. 303C (1994) 93

G and E V. Norway, Joined Applications 9278/81 and 9415/81, 35 D& R (1984), 30, S v. France, Application

13728/88, 65 D & R (1990), 250, Powell and Rayner v. United Kingdom, Ser. A No.172 (1990), 18-20 94

Boyle, A., Anderson, Human Rights Approaches to Environmental Protection,( Oxford, Clarendon Press,

1996) at page 94.

The Right to a Decent Working Environment

The International Covenant on Economic, Social and Cultural Rights makes an express provision for

this in its Article 7 which declares that party states shall „recognise the right of everyone to the

enjoyment of just and favourable conditions of work which ensure, in particular...safe and healthy

working conditions.‟ This literally ensures the right holders‟ right to work in an environment free

from pollution.

The Right to Decent Living Conditions

Article 11(1) of the ICESCR also provides for another derivative Environmental Right which provides

that the parties „recognize the right of everyone to an adequate standard of living...and to the

continuous improvement of living conditions. The Parties States will take appropriate steps to ensure

the realization of this right.‟ This lays obligation on the state to regulate the basic amenities ensuring

that the water available is not polluted and the air is also clean enough for the citizens.

The Right to Health

Article 12(2) of the ICESCR provides that „The steps to be taken by the States Parties...to achieve the

full realisation of this right shall include those necessary for...(b) the improvement of all aspects of

environmental and industrial hygiene; (c) the prevention, treatment and control of epidemic, endemic,

occupational and other diseases. The importance of this right is the obligation of the state to eradicate

and control all forms of environmental concerns such as pollution.

Although the substantive rights are not limited to the ones mentioned above, it is important to still

mention some other ones relevant to the RHE. In a report by the Committee on Economic, Social and

Cultural Rights, reference was made to environmental issues in its general comments on the right to

adequate food95

, and the right to adequate housing96

. The right to water97

is also a recognizable right

95

U.N. Econ. & Soc. Council [ECOSOC], General Comment 12, The Right to Adequate food, U.N. Doc E/C.

12/1995/5 para.4 (May 12, 1999). 96

U.N. Comm‟n on Human Rights, Forced Evictions and the Right to Adequate Housing, U.N. Doc. U.N. Doc.

E/1998/22, annex IV, para. 8 (May 20, 1997)

in wide range of international instruments stating it is a prerequisite for the realization of other human

rights.98

The following derivative rights have been seen to have the ability of being used by right

holders to enforce their environmental right unless expressly provided for in the Treaties.99

From all above, the point being made is that even though the right to environment has not been

couched out in straight forward language in most of the instruments and international conventions, the

wordings of different instruments both national and international provides for its existence and

recognition. This assertion is premised on the fact that both national and regional judicial cases100

have had to pronounce the violation of one of these above rights as violation of the RHE.

97

U.N. Econ. & Soc. Council [ECOSOC], General Comment 15, The Right to Water, U.N. Doc E/C.

12/2002/11 (Jan. 20, 2003); 98

Id 96 99

Right to Environment as provided in the 1988 Protocol to the American Convention on Human Right and also

the African Charter on Human and Peoples‟ Rights. 100

Arrondelle v. United Kingdom, App. No. 7889/77, 19 Eur. Comm‟n H.R. Dec. & Rep. 186 (1980),

Oneryildiz v. Turkey, App. No. 4893/99, 2004-XII Eur. Ct. H.R. at para. 71, Dumot v. France, Moniton v.

France, Chassagnou v. France, App. Nos. 25088/94, 28443/95, 29 Eur. H. R. Rep. 615, para 1 (1999)

Chapter 4: Environmental Impacts of Exploration Activities

The impact of oil exploration in Nigeria over the years has been very difficult to ascertain. The lack of

necessary technology and unavailability of reliable data to this has somehow stalled the accuracy of

information which ought to have been available to people101

. Although different stakeholders have

tried to give an estimated account of amount of oil spills that has occurred since exploration started,

the inefficiency and lack of trust exhibited by the agencies adds to this uncertainty. In 2011, UNEP

successfully completed a study on the impact of oil exploration on both the environment and citizens

of Nigeria and this will be discussed in seriatim;

The environmental impact of the activities could be felt in different forms ranging from direct to

indirect, immediate and long term to proximate and remote effects. The impacts of oil on the

environment are not limited to production but starts once the decision to explore for oil in a particular

region has been taken. Apart from the issue of oil spillage, deforestation and operational activities

may have serious impact on the environment and the peoples‟ right to a healthy environment. The

problem associated with the production and exploration of oil in Nigeria is the fact that oil generates

over 95% of the GDP and so also is the environmental hazards associated with this. The aim of this

section is to consider if the right to health environment and sustainable development are worth being

sacrificed for economic development and financial benefit of the company and the state.

The impact of exploration activities for the purpose of this research can be broadly categorized

through 3 main phases which are seismic activity, drilling operations and production operations. Each

stage encompasses of different activities which have overall impact on the environment which ranges

from setting up base camps, drilling pads, facility installation, pipeline installations and operations.

During the seismic activity and drilling operation period, there are a lot of activities performed which

have negative effects on the environment. This includes land clearance, access creation, solid waste

disposal, light and noise pollution, removal of vegetation, abstraction of ground water, drill cutting

101

Environmental Assessment of Ogoni Land, 2011, United Nations Environment Programme Report at pg. 6

accessed from www.unep.org/nigeria last visited on the 2nd

of January, 2012

and drill wastes, spills or leaks etc. All these activities however have negative impacts on the soil,

vegetation, people which is discussed as follows;

Impact on soil

The pollution of the soil occurs though different means and at different times of exploration which

could be from natural seepage of oil during exploration to accidental spillage of oil to the soil.

Although the impact and degree of contamination is dependent on the quantity of hydro carbon spilt

and the type of soil, contact affects the physical and chemical properties.102

The spill of crude oil on

the soil can remain for decades and thereby affecting the quality of the soil and also become a source

of pollution itself. Contamination of soil doesn‟t only affect the health of organisms but also continue

to for a source of pollution as it releases contaminants into the ground water or the air thereby

affecting the health of the people of the society or consumers.

Impact on water

The oil polluted can enter the water mass through direct spillage or through land based pollution

which is carried by rain, wind or through surface flow. The presence of chemical compositions in the

water will definately have an adverse effect on the environment as very small quantities can affect

oxygen transfer in the cycle. This affects the aquatic life support system and thereby having a chain

effect on the reproductive span of the sea animals. The fishes secrete a level of the pollutant chemicals

which could be very harmful to the health of man when consumed; the mere presence of benzene in

the water may render the water undrinkable.103

The majority of Nigeria oil exploration activities

come from the Niger delta region which is predominantly water surrounded and their main occupation

being fishing. Their food consumption is threatened as their water is so polluted it can‟t even be

drunk.104

102

Ibid at 37 103

Ibid at 38 104

The Exxon Valdez oil spill released about 30% of the spill into the atmosphere through evaporation of nearly

35,000 tonnes of oil. This happens with the light nature of the oil. See Kingston, P., “Long- term Environmental

Impact of Oil Spills”, Spill Science & Technology Bulletin, Vol. 7, Nos. 1-2, pp. 53-61, 2002

Impacts on vegetation

The vegetation is sometimes impacted negatively as there are leakages or spills form the pipelines

which carry oil on land. Corrosion of the oil pipelines can also cause serious environmental damage to

the vegetation which is supposed to be instrumental in production of oxygen to mankind for fresh air.

The exploration activities produce CO2 into the atmosphere which has serious depleting effect on the

ozone layer. The lack of immediate response to most spillages result into fires which burns the

vegetation and effect can affect the biodiversity over a period of time affecting the peoples‟ RHE.

Impact on aquatic and terrestrial wildlife

The spillage of hydrocarbons can have severe negative impact on the aquatic environment and the life

span of the sea creatures. This often depends on the nature, season, and temperature of the

hydrocarbon and time of the spill which may all be of serious significance on the aquatic life. Fish are

often affected via their gills or through ingestion of oil or contaminated preys. The fish larvae are also

at serious risk especially when oil enters nursery area being the wetlands and mangroves as the case is

in Nigeria105

. The impact may also extend to the birds that come in contact with the spills or consume

affected fishes. Physical contact with the oil is said to have negative effect on the fur and feather of

the birds causing various defects in fur bearing mammals.106

Heavily oil birds are sometimes not able

to fly again and in the process can be fed on by other on land preys which get contaminated in the

process.

Impacts on People

Human beings are prone to severe risk from effects of hydrocarbons released into the environment.

This can enter the human body through breathing the polluted air, consumption of contaminated

fishes, bathing with water that contains high level of hydrocarbon, drinking of water that has been

polluted or contact with soil that has been polluted. The composition of the hydrocarbons with many

compounds that are volatile and semi volatile makes it easy to enter the atmosphere and pollute the air

105

Id 100 at 178 106

For more on biological impact of oil pollution see Guidelines on Biological Impacts of Oil Pollution prepared

by the International Petroleum Industry Environmental Conservation Association(IPIECA)(13)

breath. The basic human rights are affected from right to life to right to health and ultimately right to a

healthy environment.

In the process of farming on contaminated soil, the people are prone to be affected by the impact of

oil pollution on their environment which they have little or nothing to say over. The types of chemical

present in crude oil and refined petroleum products released during combustion causes short term

respiratory problems, eye defects and skin irritation.107

The general quality of life of the people is also

affected as the people in the affected communities are prone to stress and their health in poor state.108

Economic Impact on the society

Environmental degradation also has far reaching impact on the economic and social life of the people.

Considering the fact that there is high poverty in the regions where most of the Nigerian oil are

explored, the people tend to scoop the oil leaking form ruptured pipes which often result in inferno

killing a lot of people at different times. Their means of living which are fishing and farming are

affected as their land; water and fish nurseries are polluted leaving them jobless.

There is also serious social impact of this degradation on the environment. This is often a long term

effect but it is mostly traceable to poverty and joblessness of the girls in the affected areas. They often

engage in prostitution and the men vandalize and kidnap people to get money to sustain their means of

livelihood.

Acoustics (Noise)

The most evident source of noise pollution associated with exploration activities is the movement of

equipments and performance of seismic survey in the areas to be explored. The blasting of rocky areas

and drilling operations can also have impact on the environment as means of pollution. There are

107

Id note 100 at pg. 40 108

The Encyclopedia of Earth(2008, updated 2010). Health effects of total petroleum hydrocarbons. Available at

www.eoearth.org/article/health_effects_of_total_petroleum_hdrocarbons last visited on the 17th

of January,

2012

however very few cases on this type of pollution as most noise pollution cases as regards violation of

right are in the aviation area.109

Air Quality

During the process of exploration, the activities generally often have effects on the quality of the air.

Emission would include dust and particles from exploration equipments, vehicles, well completion

and testing and the rig that is being drilled. This pollutant includes oxides of nitrogen, carbon

monoxides and other compounds which may combine to form ground level ozone. All these often

have adverse effect on the health of the people and the healthiness of their environment. While the

level of emission at this stage may not have any significant effect on the atmosphere, it often affects

the health and well being of people who come in contact. Although the impact of gas flaring has not

been assessed or monitored in the oil producing regions in Nigeria, the combustion of petroleum

products has negative impact on the health of people exposed to such.110

Remote and long term Effects

It is important to point out that these impacts as stated above have different degrees of affecting the

environment. Some have lasting effect while others immediate effects on the environment and the

people. As Nigeria is investing more in the offshore exploration, it is reported that Nigeria biggest oil

spills have occurred offshore.111

The environmental impact of oil exploration would not be the same

as onshore as we have seen in the case of Niger delta. The impact of offshore exploration pollution

will have more effect on the biodiversity, flora and Fauna and not directly on humans. This is more of

a remote environmental impact as little or no person may be affected by the impact but it will pose

problem to the sustainability of exploration of that resources in question.

Another danger associated with offshore exploration is the legal regime of oil pollution and

containment procedure available when spillage happens. The Macondo Oil spill of 2010 was

109

Arrondelle v. United Kingdom (Supra), Hatton v. United Kingdom (supra) 110

Amnesty International, Petroleum, Pollution and Poverty in the Niger Delta, (June 2009) AFR 44/017/2009

at 29 111

Id 36

phenomenal as the OPA, 1990 of the United States was applicable to actions in their high seas. Such

impacts may be of magnitude that it becomes trans- boundary and requiring quick containment.

Where this happens, it will have a much more devastating effect over the marine life, the ocean and

on the aquatic life of neighbouring seas.

Having enumerated the various impacts which the exploration activities may have on people, it is

important to briefly mention the existing exploration practices which obtains in Nigeria:

Oil Exploration practices in Nigeria

Oil exploration has been on for over 50 years in Nigeria which serves as the major export commodity

of the country. The southern part of the country is the richest with the crude oil and other petroleum

product and by this same effect, the most environmentally degraded area due to production. Oil

exploration activities involve both the upstream and downstream sector and it is predominantly

handled by Shell Petroleum Development Corporation (Nigeria) and the Nigerian National Petroleum

Corporation. Other companies involved in exploration activities in Nigeria are Total, Exxon Mobil,

Chevron, Texaco (now merged with Chevron) and Agip.

The Nigerian National Petroleum Company (NNPC)

The NNPC is the Oil Corporation of Nigeria which has interest in different facet of oil activities

covering exploration and production, gas development, refining, distribution, petrochemicals,

engineering and commercial investment of the oil and gas industry. The Nigerian Federal government

operate a Joint venture with different MOC (NNPC) to carry out different forms of exploration

activities. The NNPC has other subsidiaries such as Port Harcourt Refining Company, Pipelines and

Products Marketing Company, Eleme Petrochemicals Company. All these companies perform

different activities for NNPC.

Royal Dutch Shell- SPDC onshore oil exploration activities in the Niger Delta ran form 1958 till

1993 when there was massive outcry about their practices in the society and have since stopped

operations in the region. The company‟s technical installation in the region comprises of wells, flow

lines and stations, manifolds and a number of trunk lines. The SPDC has an estimated 116 oil wells

constructed between 1955 and 1992, five flow stations and 12 manifolds112

. Most of the problems

associated with the environmental degradation are attached to deteriorated technical installations and

infrastructures which were destroyed or poorly maintained.113

The companies kept waste streams,

tailing dams and drilling fluids reservoirs/ pits which have negative impacts on the environment in the

areas where people live.

According to the UNEP report of 2011 on environmental impacts of exploration activities in Nigeria,

10 manifold owned by Shell are located in the marked study area and only 6 of them were operational

while 4 had been decommissioned. Most of the oil pollution environmental degradation atrocities are

reported to have been committed by Shell Nigeria.

Chevron-Chevron Nigeria Ltd. is a joint venture between the NNPC (60%) and Chevron (40%) for

the exploration of oil and gas in Nigeria. They operate mostly offshore the coast of Nigeria in the

shallow waters. Although the Environment degradation by Chevron has not being as significant as

Shell‟s, they also contribute to the problem. A rig explosion on one of the Chevron rigs happened on

the 17th of January, 2012 some 10 kilometres off Nigeria‟s coast has left two people dead. The 1,340

degrees Fahrenheit fire has burnt for more than three days and has not been contained as at the time of

writing this paper.114

Exxon- Mobil- Mobil Producing Nigeria Unlimited(MPNU) is a joint venture between the NNPC

(60%) and Exxon- Mobil(40%) operating in the shallow waters of Akwa Ibom state in the South-

eastern delta of Nigeria.

Agip - The Nigerian Agip Oil Company Limited (NAOC) is a Joint venture between NNPC with 60%

stake holding, Agip (20%) and ConocoPhillips (20%) producing like 150,000 bbl/d mostly from the

Nigeria onshore fields.

112

Ibid 100 at 40 113

Id 40 114

The Washington Post., “Chevron: Search called off for 2 missing foreign workers off Nigeria‟s coast after

fire”, Associated Press, Published: January 19, 2012

Total- Total Petroleum Nigeria Limited (TPNL) is a joint venture agreement between NNPC (60%)

and Elf (now Total) which owns 40% operating in both onshore and offshore areas of the country.

They have an average 470,000 bpd which is estimated to be on the increase115

.

There are lots of onshore and offshore areas in Nigeria where exploration activities are being carried

out at the moment. Majority of them are in the Niger delta regions of Nigeria where most

environmental degradations have already been reported. The major challenge is the implementation

and enforceability of the laws which we have in place as RHE is being infringed upon on constant

basis. The problem is extending to sustainable development and use of the resources as major oil

spills are occurring in the offshore regions of the Nigerian waters with little or inadequate reporting.116

Oil Exploration Areas in Nigeria

The majority of onshore oil productions in Nigeria are located in the Niger Delta region117

of the

country while the remaining are offshore. Although oil has been found in other coastal states like

Ondo and Lagos, exploration has not started as they are not of commercial value like the Niger Delta

region. The basic local governments where explorations are carried out are Eleme LGA, Gokana

LGA, Khana LGA and Tai LGA. These local governments consist of different small villages and

communities where oil company installations and infrastructures are built to explore oil and gas in

Nigeria. This are the same communities are those that have been victims of serious environmental

degradations and violated Human rights.118

Nigeria‟s deepwater activities has been on the increase in recent years as more oil licences are

awarded offshore and production sharing contracts entered into. The different Oil Fields offshore are

Agbami field, Oso, Akpo field, Oyo, Bonga North, Bonga Ullage Fields, Bosi, Ukot, Usan fields,

Bonga SW, Nsiko fields and Egina Fields. Most of these fields have been awarded in the early 2000

115

Sweet crude Report.,“Total set to lift Nigeria‟s Oil output to 2.8mbpd” 6 December 2011 available at

www.Sweetcrudereports.com/2011/12/06/total-set-to-lift-nigeria‟s-oil-output-to-2-8mbpd/ visited last on the

21st Jan, 2012.

116 Ibid 113

117 Comprising of Bayelsa, Delta, Rivers, Cross River, Abia, Akwa Ibom, Edo, Imo and Ondo states

118 David Wheeler, Heike Fabig, Richard Boele,. “Paradoxes and Dilemma for Stakeholder Responsive Firms in

the Extractive Sector: Lessons from the Case of Shell and the Ogoni” Journal of Business Ethics; Sep 2002; 39,

3; ABI/INFORM Global pg. 297

and yield expectations are in millions of barrels of oil per day. However, more reservoirs of oil are

being discovered offshore119

which buttresses the fact that as Nigeria is opened to more returns from

investment, there are other imminent environmental degradation issues lurking if necessary

implementation procedures to enforce the RHE are not taken into considerations.

The majority of the licences are now being awarded to explore both the Nigeria Continental shelf and

also the Exclusive Economic Zones. The environmental danger attached to this is the fact that there

has not been proper enforcement of regulations with exploration activities performed on shore; this

may lead to higher danger when more activities are now performed offshore of the Nigerian coast.

Where environmental pollution happens in offshore oil fields causing trans-boundary pollution, the

legal framework covering this area might not be sufficient to cater for this task.120

119

The recent discovery of Etisong North I well with an estimated 8,500 barrels per day; Available at

http://www.mbendi.com/a_sndmsg/news_view.asp?I=120189&PG=35 last visited on the 21st of January, 2012.

120 The National laws are weak as compared to other country laws (Oil Pollution Act, 1990) of the United State

which was instrumental enough to widen the liability of BP during the Macondo Spill in 2010.

Chapter 5: The Nigeria Dilemma

The enforcement of RHE for some years have been total nightmare as environmental degradation

resulting from oil pollution has been on the increase.121

This problem is further compounded as the

laws which are supposed to make the MOC responsible for these damages are either inadequate or

non justiciable in the Nigerian courts. This Chapter focuses on the state of environmental degradation,

violations and applicable law which can be used to cater for this gap today. The provision of national

laws and Conventions Nigeria has ratified provides for the RHE expressly and this should be enforced

against the MOC and the government in ensuring this right.

Continuous oil Spillage

The Oil Exploration environment has been subjected to years of continuous spillage which happens as

a result of corrosion of pipes, poor maintenance of infrastructure, spills during processing at

refineries, human error and vandalism. A lot of writers have written numerous works on the

environmental degradation of Niger delta, so this research will not focus on that. It is however

important to make mention of the fact that there has been different spills in the last 50 years of

exploration and there are more still happening at the moment of writing this.122

The amount of oil spillages that have occurred in Nigeria since 1958 cannot be ascertained. This is

due to the lack of data on the subject matter and information gotten for the purpose of this research are

inferred from 3 major sources; figures available for oil discharged on land and at sea, figures on the

number of polluted sites that need remediation and expert testimonies of people who have worked and

lived in the polluted areas.123

Based on available figures, between 1989 and 1994, Shell reported an

average of 221 spills per year with an estimate of 7,350 barrels of oil per year. The UNDP recorded a

loss of 3 million barrels of oil and 6,800 spills to the environment between 1976- 2001.124

A report of

international environmental experts on the other hand have estimated spills onshore and offshore to be

121

Fabig, H., The Body Shop and the Ogoni in Addo, M.,(ed) Human Rights Standards and the Responsibility

of Transnational Corporations, 39- 45( Great Britain, 1999: Kluwer Law International) 309-320 122

Ibid note 161 123

Ibid 190 at 15 124

Id 125

in tune of 9 to 13 million barrels of oil over the past 50 years.125

In 2001, a ruptured pipeline in

Ogbodo spilled over 26, 500 barrels of oil126

, polluting the environment and making living conditions

for the people of the community a hazardous one. The effect of this pollution was more devastating as

time was wasted in containing the spill and method of clean up was poor.127

Although some

representative of the company carrying out the exploration activities visited the site and promised

post-impact assessment and remediation, none was carried out on the site thereby affecting the quality

of the environment and sustainability. This has contributed damages to the water system, health and

livelihood of the people of the community. The pollution of the drinking water is said to be highly

visible as compared to other cases where the pollutants are hard to detect in their waters.

On the 20th of December 2011, another leak was discovered from Shell Nigeria‟s Bonga Deep water

field spilling around 1.68 million gallons of oil into the Atlantic Ocean.128

On the 19th of January 2012

as reported above, a spill occurred in one of Nigeria offshore fields adding to the amount of

environmental degradation Nigeria is facing. From oil spills alone, it is reported that people living in

the Niger Delta have experienced oil spills on par with the Exxon Valdez every year over the last 50

years.129

Gas Flaring

Gas flaring is another major issue which contributes to the violation of right to health and healthy

environments of citizens as guaranteed in Article 12.1 of ICESCR and Article 16 & 24 of the African

Charter. The associated gas being flared by the oil company is a major contributor to the CO2 gas

emitted which depletes the ozone layer and responsible for global warming. Flares continue for 24

hours on sites creating noise pollution and air pollution. Local communities complain of living with

permanent light and considerable heat in the immediate area of the flared gas.130

The incompletion of

125

Niger Delta Natural Resources Damage Assessment and Restoration Project, Phase I Scoping Report, May

2006. 126

Ibid 109 at 22 127

A partial clean up took place 8 months after spill occurred but the environment has been left in a devastated

way. 128

Ibid note 113 129

Ibid note 119 at 16 130

Id at 36

the combustion of the flared gas cause oil droplets to fall on waterways, crops, houses and the people.

All these put together affect the people of the exploration community and it undermines their quality

of life and their right to live in a healthy environment.

The strength of the MOC and the joint venture operated by the NNPC has made it difficult for this

right to be enforced. Despite the fact that a Federal High Court ruled on the 14th of November, 2005

that gas flaring was a violation of constitutional guaranteed right to life and healthy environment, the

NNPC and SDPC had since obtained a stay of the court order to continue the flaring of gas.131

The

PIB however seeks to place an obligation on the IOCs to put in place a domestic gas supply

to meet their commitments with regard to gas exports. It is believed this would invariably

curb gas flaring by the oil companies and rebalance upstream gas pricing, which in turn

would encourage more gas supply projects, as such would be seen as more economically

viable and could put an end to the upstream funding crisis that has, so far, served to curtail

gas development work in Nigeria

Seismic surveys, dredging, construction of roads and pipelines

The performance of all these activities in themselves do not amount to environmental degradation.

Those results from the deliberate neglect of putting the environment back to a state it can replenish

itself. These activities have caused considerable damage to the oil exploration areas in the country. It

involves cutting though the mangrove forest, deforestation, alteration of the water ways, chemical use

and other activities which affect the fishing nurseries of farmers. The construction of channels through

the waterways and swamps alter the freshness of the water by causing salt to enter the fresh water

making it unusable for other purposes such as drinking.132

Dredging activities done by the companies to facilitate navigation also contributes negatively to the

harm already done to the environment. This has direct repercussions for human right as the peoples‟

right to adequate means of livelihood are affected. Their fisheries and water qualities are affected

131

Federal High Court of Nigeria Benin Division of 14th

November, 2005, FHC/B/CS/153/2005 132

Ibid 119 at 19

thereby making it difficult for them to earn returns for their investment. Toxic substances attached to

sediment particles sometimes enter the water to affect food chain and cause fishes toxicity problems.

When all these happen, the farmers are often left without compensation or very little to remedy

wrongs done to them.133

Poor and in complete clean ups

The inadequacy of the clean ups in this area has left the community to wallow in unproductivity and

poverty. The environment continues to depreciate resulting in low level of sustainable development

that can actually occur in such areas. The pollution has occurred over time and it will take years for

such environment to come back to a fruitful condition. Clean ups sometimes take months before it is

started and most times not adequately done.134

Apart from these operational problems which have been discussed above, there are other legislative,

procedural judicial and regulatory problems which make enforceability of right to healthy

environment a night mare in Nigeria:

Judicial Obstacles- Another problem associated with the slow growth of enforcement of HRE is the

lack of cases that have been decided by courts to form judicial precedents in this area of law. Since

Environmental Right is a new area of International law, there are few authorities for the court to base

their decisions on. It is evident that the courts have often prioritised economic interests of the state

over environmental rights of the people thereby making it hard to enforce those rights. In Allar Iron v.

Shell-BP, the court refused to grant an injunction because ordering so would amount to the defendant

stopping operation in the community.135

Where the cases come up in the developing states, they are

often settled out of court for undisclosed amounts to prevent the law making a legal statement which

will form a yardstick to base their subsequent decisions136

. The settlements of disputes are good,

133

Ibid 119 at 28 134

This can be seen from the environment of spilled oil in Ebubu, Kira Tai, Rukpokwu all in Niger Delta region

of Nigeria. 135

Allar Iron v. Shell-BP, Unreported Suit No W/89/71 136

The settlement out of court of the Ogoni case is a classical example of the attempt of the MOC to prevent

judicial precedents in the Environmental right area.

except that it has created problems for the growth of the judicial foundations on the issue of

environmental rights.

Locus Standi- Identifying the actual right holder of environmental right has posed more problems

than solutions137

. As stated earlier, because environmental right is categorized as a collective right in

Nigeria makes it difficult to have people to bring actions against the Government for violation of their

RHE. The locus standi principle is a trite one which is taken rigidly in the Nigerian courts.138

While

the African Charter on Human and Peoples‟ Rights vests the right to a general satisfactory

environment in all peoples, the majority of Constitutions vest the rights in the individuals139

which

make it difficult to prove person injury done to them for an environmental damage.

Power of the Multinational Corporation

The size of the MOCs often makes it difficult for small NGOs and groups to sue them for wrongs

done to the environment. They often negotiate the terms of the licences with the developing host

countries who are craving for investments at terms less favourable to them. Where there is human

right violation, the MOC can afford the services of the best legal team and also use their multinational

strength to influence decisions in some local courts. In the case of Republic of Ecuador v. Chevron /

Texan co140

, the Ecuadorian court awarded damages of $8.6 billion to the Government after so many

years that the United States Oil giant had continuously violated their environmental right. Some MOC

have also been found guilty of been complacent against government that have violated peoples‟ rights

considering the level of influence they have in such economies.141

137

Bray, “Locus Standi in Environmental Law”, 22 CILSA(1989), 133 138

Oronto Douglas v. Shell Petroleum Development Company Ltd and ors., Federal High Court of Lagos Suit

No, FHC/L/CS/573/96, ruling in (1999) 2 NWLR (Pt. 591). 139

Boyle, A., International Law& the Environment(Third Edition, Oxford) 2003 at page 12 140

http://www.businesshumanrights.org/Categories/Lawlawsuits/Lawsuitsregulatoryaction/LawsuitsSelectedcase

s/TexacoChevronlawsuitsreEcuador visited on the 16th of July, 2011. 141

Shell Nigeria was accused of Human right violation when the 8 Ogoni leaders were executed in Nigeria and

the giant company did nothing to come against the act of the then military regime of Gen Sanni Abacha.

The weaknesses in both the legislative and institutional framework for enforcement cannot be

overlooked as a contributory factor to lack of enforcement of RHE142

even though there have been

some successes by the local communities in some national courts. Another factor which has

contributed to the non enforcement of this right is the fusion of regulatory bodies with the agencies

they are supposed to be watchdogs over. The Directorate for Petroleum Resources until 1988 was part

of the NNPC which run a Joint venture with the other oil companies they are supposed to regulate.

Where this kind of arrangement happens, it becomes difficult to enforce RHE because of overlapping

interests.

Multinational Companies interference in the administrative affairs of the governments of the host

countries is worth mentioning. The companies often institute legal actions against the people of the

community, NGO and other activists who call the public attention to what they are doing wrong in the

host countries. In the case of Ashai Kosei (M) Sdn. Bhd v. Charles Hector Fernandez, a company

instituted an action for defamation against a lawyer who published information received by immigrant

workers on his blog which was according to his right of information.143

Having said all of the above, an analysis of different provisions of Nigeria laws will reveal that

although the enforcement of the right to a healthy environment has not been very possible, there are

provisions in the Nigeria law and signed treaties which can be explored to enforce these rights. The

next chapter will examine measures and different avenues that can be explored to promote better

enforcement of right to healthy environment in Nigeria.

142

O Ibidapo-Obe, „Criminal Liability for Damages Caused by Oil Pollution‟ in Environmental laws in Nigeria

including compensation (J A Omotola, ed, Lagos, Nigeria: Unilag, 1990), p 235 143

For more on this, see www.aliran.com/4590.html last accessed on the 24th

of February, 2012.

Chapter Six: FINDINGS, CONCLUSIONS AND RECOMMENDATIONS

Based on all the above sections, it is evident that the RHE exists in both Nigeria laws and instruments

signed but problem lies with the enforcement of the right. As will be argued, the problem is neither

with unavailability of laws to cater for this right nor nonexistent of regulatory bodies which are

saddled with the responsibilities to enforce these rights. The problem has to do with lacunas in the

laws which the government and MOC exploit to shelve their responsibilities.144

For the purpose of

these section, approach to make RHE in Nigeria will be addressed from four areas centred on Host

government efforts, International Instruments, provision of laws in Home government Statutes and

corporate/host community agreements.

Host Government Efforts

Rights belong to people by the very fact that they are human and it is inalienable. Each state has a

duty to protect the right of its citizens in every way possible and make sure appropriate remedies and

compensations are provided for victims of violated rights. The most important factor to be considered

is that the National laws of Nigeria must make the RHE a justiciable one and not just an objective of

the government. A form of command and control regulation can be adopted by the host government to

make the type and allowable pollution of the environment a strict one under the laws. The standards

are to be mandatory and often backed up by sanctions which punishes breaches of allowable limits.

These standards may be incorporated directly into statute books or take the form of regulations as

code of standards to be followed in a particular jurisdiction.145

The problem associated with this form

of approach is the fact that the regulatory mechanism and enforcement of laws in Nigeria is poor.

Where this is the case, the polluter can choose to evade or prefer to pay the fine.

144

For instance, the RHE in the Nigeria constitution is in Chapter IV under fundamental objective and directive

principles which are unenforceable part of the constitution. 145

Ibid note 37 at 37

Another approach which can be adopted is the community regulation style which is used in

developing countries.146

This form of informal regulation collects pollution data from all companies

operating in a community, analyzes rate emission performance and publishes this in a manner which

is understandable by the lay men of the society. This will not only promote accountability and

measures against pollution but also a step towards achieving the goal of sustainable development.

Likewise in The Philippines, Columbia and Mexico and India which is the major proponent of the

RHE, public disclosure models have been adopted to promote RHE. This helps as the members of the

community also play both supervisory and regulatory roles in enforcement of the right when there is a

pollution of their environment.

It is noteworthy to state that the legal framework of enforcement of right to environment in Nigeria is

not entirely barren. For instance, the Fundamental Rights (Enforcement Procedure) Rules 2009

provides for instances how the RHE can be enforced in Nigeria. In Okogie (Trustees of Roman

Catholic Schools) and Ors v. Attorney General, Lagos State,147

Justice Mamman Nasir made a

submission in his obiter that the arbiter of any breach of the chapter II of the Nigeria 1999

Constitution is the Legislature or Electorate. This means that all these rights provided for in Chapter II

can be made justiciable by appropriate implementation legislation provided other rights of citizens are

not infringed.

The African Charter on Human and Peoples‟ Rights (Ratification and Enforcement) Act has as one of

its article a domestication of Article 24 of the African Charter which provides for the RHE. This

means that the right is now part of the laws of Nigeria which can be enforced in national courts. Also,

the obligation to enforce the RHE is not just that extended to states but to all private individuals of the

state.148

The problem that may be encountered which can make the application of this provision

146

In 1993, the government of Indonesia introduced the Program for Pollution, Control, Evaluation and Rating

(PROPER) which is designed to receive, analyze and publish pollution data deceived from factories in their

communities. 147

Okogie (Trustees of Roman Catholic Schools) and Ors v. Attorney General, Lagos State, (1981) 2 NCLR 337 148

Jonah Gbemre v. Shell Petroleum Development Company of Nigeria and 2 Ors, unreported Suit No.

FHC/B/CS/53/05, Delivered on 14 November, 2005

doubtful is the provision of Section 1(3) of the 1999 Constitution of Nigeria which provides for the

supremacy of the constitution over other laws where there is a conflict.149

The rule of locus standi has also being relaxed under the provision of the 2009 FREP Rules as

compared with the 1979 FREP Rules where the aggrieved party must proof he has been personally

affected by the environmental degradation to have locus standi.150

The FREP 2009 expressly

mandates the court to proactively pursue enhanced access to justice for all classes of litigants,

especially the poor, the illiterate…the vulnerable and unrepresented.151

By virtue of this provision,

NGO and private individuals can now bring actions in court where their rights to healthy environment

has been threatened by environmental degradation of either the government or any of its agencies.152

Another important legislation which may help the enforcement of the RHE is the Right to know and

power to Act legislation which provides the obligation of each state, companies and industries in the

oil exploration industry to disclose all their „to be‟ hazardous activities to the people of the proposed

affected area. It has been emphasized by some scholars153

that the right to know can only be effective

if there is right to participate in decision making by the communities.

The Petroleum Industry Bill in Nigeria holds a lot of prospects with regards to the realisation of the

RHE if it will be eventually passed into law. Sections 405-413 make provisions for the Environment

health and safety standards required by licensees in the upstream and downstream sectors of the

energy industry. In addition to the requirement of corporate social responsibility obligation which the

licensees are required by law to observe, they are also required to restore the environment to a state of

utmost quality where pollution happens. Among the salient features of the bill is the requirement of

licensees to support precautionary principles in tackling of any challenge that may have occurred

during operation of their lease.

149

This is hinged on the fact that the Right is provided as an unjusticiable right in the constitution. 150

Oronto Douglas v. Shell Petroleum Development Company Ltd and 5 Ors, Unreported Suit No.

FHC/CS/573/93, Delivered on 17 February, 1997 151

Paragraph 3(d) of the FREP Rules, 2009 152

Amechi, E., „Litigating Right to Healthy Environment in Nigeria: An Examination of the Impacts of the

Fundamental Rights (Enforcement Procedure) Rules 2009, In Ensuring Access to Justice Of Victims To

Environmental Degradation‟, 6/3 Law, Environment and Development Journal (2010), p. 320, available at

http://www.lead-journal.org/content/10320.pdf last visited on 2nd January, 2012 153

Dias note 37 above at 40

Section 412 of the bill appears to be a provision of utmost relevance and help to ensuring a RHE. This

makes the licensee additionally liable to compensate adequately for degradation to the environment

irrespective of other liabilities provided for in additional environmental laws. Section 407 also gives

recognition to the principle of sustainable development and consideration for wellbeing of generations

through good practices of the licensee and ensuring their constitutional rights involving RHE.

Having said the above, the enforcement of the RHE can be achieved not just from the provisions of

national laws on this but also through international instruments.

International and Regional Instruments to enforce RHE

The ICESCR provides for procedural rights which the RHE environment can be presumed and

enforced on. Also, the African Charter specifically provides for the RHE under Article 24 which has

been ratified by Nigeria. It is argued that the provisions of BIT should also be used to make the right

to healthy environment enforceable between the two parties to such treaties.154

This is hinged on the

fact that the basic reason why ICSID was created in 1965 was to protest weak investors for the

unstable laws and volatile economic conditions of the developing states. At the moment, the same

Multinational companies are the greatest violators of the right to healthy environment and the host

countries too should be able to use the provisions of the BIT signed by the other parties to bring them

before an international arbitral forum for breach of the BIT. It is important that the United Nations or

the World Bank should provide an international avenue to bring environmental violation related

action caused by investor companies in another state just like the ICSID tribunals.

India Right to Information Act, 2005

The Indian government has experienced great success in ensuring that people lodge complaint about

the violation of their rights and get the government to act promptly on this as established in their

Right to Information Act, 2005. This law confers an administrative weapon that responsive officials

can use against less responsive colleagues. This permits government officials to act on information

154

Sornarajah, M., The International Law of Foreign Investment (UK: Cambridge University Press, 2004)259-

264, See also Ratner, S., Corporations and Human Rights: A Theory of Legal Responsibility (2001) 111 Yale LJ

443

received by citizens against corrupt officials in their own department. This law has been used to

obtain information ranging from revelation of spending of local officials to rents paid by officials in

government. This law mandates a Public Information Officer to transfer applications made to relevant

department for investigation and in no way can the application be returned.

Although this has being a very good law, there have been proposed amendments on some areas of the

law. The provision of the law limits application to 250 words and must be centred on only one subject

matter. This may create problems where the complaint needs to be accompanied by series of

information or document which however may be bogus or too much to attach. One of the key

provisions of the Act is its Section 4 which provides that all government officials across the county

must disclose suo moto information in the public domain within 120 days after the Act was

implemented, and to update information at regular intervals.

Another key feature of the Act is that the Public Information Officer cannot ask anyone the reason for

seeking any information which is requested under Section 6(2) of the RTI, 2005. The PIO has to

supply the information asked for within a time frame155

when the citizen demands it.

Home government Statutes

In the recent past, parties groups have instituted tort actions against MOC in their home companies for

the actions of their subsidiary companies which have violated their rights under the laws of the home

country. This is perceived as very complicated law as it defiles the whole essence of jurisdiction under

international law.156

A perfect example of this law is the United States Alien Tort Claims Act of 1789

which grants jurisdiction to federal district courts to hear “any civil action by an alien for a tort only,

committed in violation of the law of nations or a treaty of the United States.157

The ATCA has become

instrumental by foreigners to gain access to the United State courts to seek redress for actions

committed outside the United States. In Doe v. Unocal Corporation158

the court held that the ACTA

can apply to Multinational Companies and can hold a corporation liable as a state actor if it jointly

155

This is 30 days if it is under Section 6 and instantly if it is under Section 4 156

ibid 157

28 U.S.C. S. 1350 (1994) 158

(1997) 963 F. Supp. 880 at 891-892 (C.D. Cal.).

engaged in violation of customary law with the host government. Even though this look like a good

opportunity for people to bring action against multinationals whose head offices are in the United

State, they may encounter some difficulty in showing that the „law of nations‟ includes environmental

torts.159

In a similar proceeding, a Dutch court has granted access to victims from some villages in Nigeria in

conjunction with Friends of the Earth, Netherland to bring an action against Shell Nigeria and Shell

parent company in Netherlands for the environmental damages it has committed in the oil producing

area. This ongoing case is the first time in history that a Dutch company abroad is being brought

before a Dutch court for damages caused abroad. This suit is based on the UNEP report presented to

the Nigerian government on the extent of pollution committed by Shell Nigeria.

In line with these developments above, the enforceability of the RHE is becoming more pronounced

and such actions in the home countries will go a long way in deterring the multilateral oil companies

in violating the right of citizens in the exploration areas.

Good Neighbours Agreements

Another approach that the host communities can take to promote enforcement of the RHE is to create

the obligation for the MOC to be liable for compensation and clean ups in special agreements they

enter with the host communities before they start exploration. This will go a long way as it will create

an additional avenue for the oil producing communities to bring actions against the companies when

there is violation of the RHE or other ancillary rights. A perfect example of this is the negotiation of

good neighbour‟s agreement where the communities can obtain terms and conditions to better

safeguard their long term interest. In developed economies, this new social contract agreement is

gaining more ground in areas where there is high concentration of petrochemical companies like

159

Belgore, Y., Problems With Oil Pollution Injury Litigation In the Nigerian Legal System: Can Nigerian

Litigants Gain Access To Courts In England and The USA? (2003) CEPMLP Thesis p. 209

Texas, USA160

. Companies which often become reluctant to sign the GNA are seen as those that have

something up their sleeves and thus may be watched.

In conclusion, GNA creates a forum whereby the community aspirations and input can be put in line

with the objectives of the company‟s EMS and decision making process. Apart from the fact that this

is a binding contract upon which the community can sue such company for violation, it creates an

avenue for the community to perform the watchdog role over the activities of the MOC in the

exploration areas.

Having gone through the whole issue of enforcement of environmental rights and sustainability of the

exploration of resources in Nigeria, it is evident that the right is one that exist in both the constitution

of Nigeria and other regional and International Instruments Nigeria is signatory to. The major problem

however is how to identify the relevant law and forum to approach in enforcement of the RHE. The

provisions of the FREP 2009 however has shed more light on the fact that the problem of enforcement

may not be as impossible as it seems in light of its provisions on locus standi and ratification of the

Banjul Charter which provides expressly for the RHE. Also, the recent litigations before the Dutch

courts and the US courts gives more avenue for people whose rights have been affected to bring

actions against MOC that have violated their rights. The major hindrance to full enforcement of the

right is the attitude of the national courts establishing RHE though other procedural rights. It is

assumed this problem will be laid to rest when the Petroleum Industry Bill before the National

Assembly is passed to law and its environmental laws making companies culpable for environmental

violations becomes operational and effective.

Furthermore, BITs can go a long way in solving these problems where more concern is given to

environmental concerns and not just investments as trend is now. A MOC that sees a developing

country with lax laws as an avenue to make more profits should also be ready to bear the associated

consequence of its lax actions towards the God-given rights of the people in the host states.

160

Dias note 37

Investment treaties should contain exemptions for interference by host states to protect the

environment.161

161

Santa Elena v. Costa Rica (2002) 5 ICSID Rpts 157