Gas Flaring

Title Page

Gas Flaring, Environmental Corporate Responsibility and the Right to a Healthy Environment: The Case of the Niger Delta By

Brown E. Umukoro

Brown E. Umukoro is a Law Lecturer in the Department of Commercial and Property Law, Faculty of Law, Delta State University, Oleh Campus, Nigeria. Address: Faculty of Law, Delta State University, Oleh Campus, Nigeria. +234 80 52762618 [email protected]

Abstract

The article “Gas Flaring, Environmental Corporate Responsibility and the Right to a Healthy Environment: The Case of the Niger Delta” focuses on the environmental impact of gas flaring by multinational oil companies on the Niger Delta areas of Nigeria. The writer, in this paper, examines the national legal framework for the continuation of gas flaring in Nigeria, the advancement of the concept of threat to right to life to include harmful activities of multinational companies and how these companies can be held accountable for the environmental degradation caused by oil exploration activities in Nigeria. The writer also examines certain regional and international legal documents touching on the protection of the human environment and draws a comparison between the Nigerian approach to the concept of right to life and how the concept is understood in other jurisdictions.

Some valuable suggestions have been proffered using the approach adopted in certain jurisdictions as a panacea for strengthening the will of the Nigerian government in overcoming its weakness in the effective enforcement of environmental laws and policies.

Table of Contents

1 Introduction 2 The Niger Delta people 3 Gas Flaring 4

Legal Frame Work for the Flaring of Gas in Nigeria

5

Gas Flaring and the Right to Clean Environment.

6

Gbemre v. Shell: A Litmus Test for Environmental Human Right Claim in Nigeria

7

The Nature and Scope of the Right to Life within the Context of Environmental Law

8 The Right to a healthy Environment 9

Environmental

Corporate

Responsibility

of

Multinational

Companies in Nigeria 10 Minimum Standard for the Observance of Environmental Human Rights by Multinational Oil Companies in Nigeria 11 Conclusion

Gas Flaring, Environmental Corporate Responsibility and the Right to a Healthy Environment: The Case of the Niger Delta *

1

Introduction Every year, millions of dollars are literally going up in smoke in Nigeria…as companies burn off unwanted natural gas released 1 during oil production.

Gas flaring is not a new phenomenon especially in the oil producing communities in Nigeria, what is however new and not readily forth coming is the sensitization of the Niger Delta people who produce the oil about the calamitous effect of gas flaring on their land and their health.2 It has been reported that Nigeria has the world’s highest level of gas flaring, and flares about 16 percent of the world’s total associated gas. 3 If we recall therefore that oil exploration generally causes a spectrum of environmental catastrophes which include contamination of the surface and ground water and of the soil through oil spill then we will appreciate *

Brown E. Umukoro Esq., LL.B, BL, LL.M, Lecturer in the Department of Commercial and Property Law, Faculty of Law, Delta State University, Oleh Campus, Nigeria. 1 See, Ofeibea, Qiust-Acton, “Gas Flaring Disrupts Life in Oil-Producing Niger Delta,”http://www.npr.org/templates/story/story.php?storyld=12175714 accessed Dec. 15, 2008. 2 The Niger Delta wetlands are obviously being threatened by the considerable damage caused through oil pollution, gas flaring, etc. See, Nigerian Environmental Study and Action Team, 1991, 155 cited in B. A. Chokor, “Government Power and Environmental Protection in Developing World: The Example of Nigeria” (1993) 17(1) Environmental Management, 21 available at http//www.springerlink.com/content/g228567w60260254/full text pdf, accessed Dec. 15, 2008. 3 See Global Gas Flaring Reduction Initiative Report in consultation with Stakeholder by World Bank Group in consultation with the Government of Norway (2002) available at http.//www.worldbank.org/ogmc/files/global-gas-flaring-initiative.pdf

the effect of the additional problem of environmental degradation caused by gas flaring in the Niger Delta. This paper therefore seeks to address majorly the question of the right of the Niger Delta to a healthy environment in the face of continued flaring of gas by multinational oil companies and the duty on the oil companies to improve on the quality of life in the local community where they operate. 2

The Niger Delta People

The Niger Delta people comprise of different ethnic minorities scattered all over

the south-south geographical zone of Nigeria.4 It is the largest

wet land in Africa and the third in world. It is one of the richest reservoirs of natural resources in the world.5 The Niger Delta has been described as “a maze of creeks delicately criss-crossing themselves and leaving in between them tiny islands, marsh or swamps.”6 There are at least 50 different dialects in the region though with near homogenous lifestyle.7

4

See, N. F. Stewart, ‘Deprivation, Environmental Degradation and Armed Conflict: Need for Sustainable Development of the Niger Delta Wetlands’ 9 University of Benin Law Journal 679 (2006). See generally, Udeme Ekpo, The Niger Delta Oil Politics chapter 1 (Lagos: Int’l Energy Com. Ltd., 2004) for the location and detailed history of the Niger Delta people. 5 See, Professor, G. G. Darah, Delta Oil Communities: From Bondage to Prosperity (Paper presented at the Senior Staff Training workshop organized by Delta State Oil Producing Areas Development Commission (DESOPADEC), Woodridge Hotel, Effurun, Delta State, Nigeria 25 th Feb., -1st Mar., 2008). 6 See, L. E. Nwosu, Compensating Environment Damage in Oil & Gas Operation ( Paper presented at the Annual Conference of the Nigerian Bar Association entitled Nigeria and the Challenges of Development in the Niger Delta, Port Harcourt, Nigeria, August 28 to September 2, 2006). 7 Id, p. 6.

3

Gas Flaring

Gas Flaring is the process of burning unutilized associated gases into the atmosphere.8 Oil and natural gas are mixed up in every oil deposit. In the process of refining, the natural gas called “associated gas” is removed from the oil. Gas flaring is therefore the burning of the associated gas.9 The demand for gas in Nigeria is comparatively limited because of reduced industrial activities.10

The low domestic oil prices have also

made consumption of gas unattractive as an alternative energy source in the time past.

These have undoubtedly contributed to the increasing

flaring of Gas in Nigeria. At present, given the ever increasing price of PMS, diesel and kerosene, Nigerian urban dwellers are more and more becoming drifted into the gas consumers’ market which is still in its embryonic stage. 4

Legal Frame Work for the Flaring of Gas in Nigeria

The provisions of the Associated Gas Re-Injected Act11 appear to be prohibiting the flaring of gas and at the same time encouraging same in 8

See, ‘Lanre Fagbohun, ‘Foul Fuel in Nigeria’s Air: Nigerian Environmental Law’ (17 (3) Journal of Energy and Natural Resources Law, 257 (1999). 9 See, Michiko Ishisone, “Gas Glaring in the Niger Delta: The Potential Benefits of its Reduction on the Local Economy and Environment” available at http://socrates.berkeley.edu~es196/projects/2004final/ishone.pdf. According to L. E. Nwosu, supra note 6, p.5 “the indiscriminate flaring of gas into the atmosphere of the oil producing areas constitute the single most barbaric source of systematic interference with the health and longevity of their populace.” 10 Fagbohun, note 8 above, 257. 11 Cap. A25 Laws of the Federal Republic of Nigeria (LFN) 2004 (hereafter referred to as AGRA).

Nigeria. Section 1 of the AGRA12 requires that every company producing oil and gas in Nigeria must submit to the Minister in charge of petroleum a preliminary programme for; a) Scheme for the viable utilization of all associated gas produced from a field or groups of fields; b) Project or projects to re-inject all gas produced in association

with oil but not utilized in an industrial project. Section 2(1) of the AGRA further requires oil and gas producing companies

in

Nigeria,

after

the

submission

of

the

preliminary

programme, to submit to the Minister a detailed programme and plans for either – The implementation of programmes relating to the re-injection of all produced associated gas; or scheme for the viable utilization of all produced associated gas13 and the fact that some of the gas produced in association with oil has been earmarked for some alternative utilization shall not exempt compliance with section 1 of the Act and subsection 1 of this section.14

Section 3(1) of the AGRA renders illegal the flaring of gas produced in association with oil without the permission of the Minister effect from 1st of January, 1984. Unarguably, the AGRA does not have a permanent plan to stop the flaring of Gas in Nigeria given the conditions set out in section 1 of the Associated Gas Re-Injection (Continued Flaring of Gas) Regulations.15 The AGRA Regulation in section 1 empowers the Minister 12

The principal Act which came into force in 1979 gave a deadline of 1st of April, 1980 for the submission of preliminary programme aimed at the re-injection of gas. 13 The principal enactment of AGRA which came into force in 1979 set 1st of October, 1980 as the deadline for such submission. 14 See section 2(2) of AGRA. 15 Hereinafter referred to as AGRA Regulation. The Regulation came into effect on 1st January, 1985 and since then gas flaring in the Niger Delta has continued unabated.

in charge of petroleum to issue a certificate for the continuation of flaring of gas in a particular field or fields, if one or more of the following conditions are satisfied: (a)

where more than 75 percent of the produced gas is effectively utilized or conserved;

(b)

where the produced gas contains more than fifteen percent impurities, such as N2, H2S, CO2, etc., which render the gas unsuitable for industrial purposes;

(c)

where an on-going utilization programme is interrupted by equipment failure, etc.

The implication of this is that the Minister shall continue to permit the flaring of gas in Nigeria as long as a desiring oil and gas company satisfies one or more of the above conditions. This, by extension, reveals the unwillingness of the Nigerian government to stop gas flaring. As if demonstrating readiness to enhance the quality of Nigeria’s air resources, the Federal Environmental Protection Agency (FEPA) was established by the Federal Environmental Protection Agency Act.16 The FEPA Act17 provides that the Agency shall establish more criteria, guidelines, specifications and standards to protect and enhance the quality of Nigeria’s air resources so as to promote the public health or welfare and the normal development and productive capacity of the nation’s human, animal or plant life, and include in particular, 16 17

Cap F10 LFN, 2004 (hereinafter referred to as FEPA Act). Id. Section 18.

(a)

minimum essential air quality standards for human, animal or plant health;

(b)

the control of concentration of substances in the air which separately or in combination are likely to result in damage or deterioration of property or of human, animal or plant health.

(c)

The most appropriate means to prevent and combat various forms of atmospheric pollution.

(d)

Control of atmospheric pollution originating from energy sources, including that produced by air craft and other self-propelled vehicles and in factories and power generation stations, etc.

Regrettably, these provisions do not categorically make reference to air pollution arising from gas flaring. It could be argued therefore that the FEPA Act merely contemplates such air pollution like emissions from automobiles, factories and power generating plants in its bid to ensure quality air. Again, the Federal Government proceeded further to enact the Niger Delta Development Commission (Establishment) Act18 with one of its functions as tackling the “environmental problems that arise from the exploration of oil mineral in the Niger Delta area and the giving of advice to the Federal Government and the members – states on the prevention and control of oil spillage, gas flaring and environmental pollution.”19 That section 18 of the FEPA Act and section 7 of the NDDC Act have not produced the desired result as touching prevention of gas flaring is not strange if both sections are married with section 1 of the AGRA 18 19

Cap N86 LFN, 2004 (hereinafter referred to as NDDC Act) Section 7 of the NDDC Act specifies the powers and functions of the Commission.

Regulation.

Apart from the fact that these enactments put together

produce undesirable cacophonic effect, they also demonstrate confused energy policies as against the importance that should be placed on the serious issue of human right to clean and healthy environment. 5

Gas Flaring and the Right to Clean Environment

Gas

flaring

negatively

impacts

the

environment

and

the

local

inhabitants. The flares are very loud, dangerously hot, which gratingly ascends to the heavens twenty-four hours a day, thereby depriving the surrounding area of natural night. It emits thick, black, densely cloudy smoke containing several harmful gases.20 This is the reason why it has been said that an ever increasing and uncontrolled pollution leaves us to perish in our own waste.21 Akanki22 amplifies this point further when he says that: Air pollution23 damages the environment in its totality. Apart from soiling buildings, fabrics and scenic beauty air pollution can result in water and soil pollutions after rainfall or when it causes acid rain. It kills birds in the air and animals on the ground and creatures that need clean air for survival. It ruins agriculture as it damages crops and foliage leaving forest land bare. Since air 20

See, Essential Action and Global Exchange, Oil for Nothing: Multinational Corporations, Environmental Destruction, Death and Impunity in the Niger Delta available at http://www.essentialaction.org/shell/Final_Report.pdf 21

See P.K Fogan, ‘Company Law and the Corporate Polluter: Who to Blame’ in (J. A. Omotola, ed., Environmental Laws in Nigeria Including Compensation 98 (Lagos: Faculty of Law, UNILAG, 1990) 22 E. O. Akanki, ‘Air Pollution Control Law’ in J. A. Omotola, ed., id, pg. 194 – 195. 23 “Pollution” has been defined as “an undesirable change in the physical chemical or biological characteristics of air, land and water that may, or will harmfully affect human life or that of other desirable species, industrial processes, living conditions and cultural assets…” See P.G. Frank, Environmental Law, P.7 cited in Akanki, note 2 above, 194.

pollution obscures light and reduces sunshine its dangerous effect on agriculture cannot be in doubt. Because pollution makes air corrosive it destroys metal and steel products and work of art… there is evidence that air pollution alters climate and may produce global changes in temperature.

Accordingly, Gas flaring has been blamed for several health problems, e.g. asthma, bronchitis, skin problems and breathing problems in the Niger Delta areas.24 6

Gbemre v. Shell: A Litmus Test for Environmental Human Right Claim in Nigeria

As a result of the environmental effect of gas flaring, the Iwhrekan Community in Delta State filed a suit to enforce their fundamental right to life and dignity of the human person.

25

The applicant, Jonah Gbemre,

on behalf of the Iwhrekan community, claimed inter alia as follows: A declaration that the actions of the 1st and 2nd Respondents (i.e SPDC and Nigerian National Petroleum Corporation (NNPC) respectively) in continuing to flare gas in the course of their oil exploration and production activities in the Applicant’s Community is a violation of their fundamental rights (including healthy environment) and dignity of human person guaranteed by Sections 33(1) and 34(1) of the Constitution of the Federal Republic of Nigeria, 1999 and reinforced by Articles 4, 16 and 24 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap. A9 Vol. 1 Laws of the Federation of Nigeria, 2004.26 24

See, M. T. Okorodudu-Fubara, Law of Environmental Protection, 402 (Ibadan (Nigeria): Caltop Publ. (Nig.) Ltd., 1998). However, a particular world Bank Report (1995) is quoted as saying that gas flaring is of low and environmental and health significance to the Niger Delta problems and that negative effects of gas flaring are only restricted to the immediate vicinity of the flare. Again, World Health Organization’s (WHO) Data identify some of these illnesses as caused by poverty and lack of clean water, sanitation, drug and treatment. Id, p. 402. 25 See Jonah Gbemre v. Shell Petroleum Development Company (Nigeria) Limited & Ors. Unreported Suit No. FHC/B/CS/53/05 delivered on the 14th of November, 2005. 26 See, page 2 of the judgment in Jonah Gbemre v. Shell Petroleum Development Company (Nigeria) Limited & Ors., note 2 above.

The Applicant also sought a declaration that the provisions of section 3(2)(a),(b) of the AGRA and section 1 of the AGRA Regulations under which the continued flaring of gas in Nigeria may be allowed are inconsistent with the Applicant’s right to life and/or dignity of human person enshrined in section 33(1) and 34(1) of the Constitution, 1999 and Articles 4, 16 and 24 of the African Charter on Human and Peoples Right

(Ratification

and

Enforcement)

Act

and

are

therefore

unconstitutional, null and void by virtue of section 1(3) of the same Constitution. The Applicant’s grounds for bringing this application27 inter alia are as follows: That the burning of gas by flaring same in their community has given rise to the following: That is it, (a)

Poisons and pollutes the environment as it leads to the emission of carbon dioxide, the main green house gas;28 the flares contain a cocktail of toxins that affects their health, lives and livelihood.

(b)

Exposes them to an increased risk of premature death, respiratory illness, asthma and cancer.

27

The Applicant brought this application in representative capacity under the Human Right (Enforcement) Rules, 1979. 28 The green house gas (GHG) includes carbon dioxide, methane, and nitrous oxide and sulfur hexafluoride. The Kyoto Protocol to the UN Frame Work Convention on Climate Change (UNFCC) adopted in 1997 in Kyoto, Japan was to stabilize GHG concentration to prevent dangerous anthropogenic interference with the world climate system. The Protocol provides for the establishment of a legally binding commitment for the reduction of the four GHG already mentioned above. See http.//.en.wikipedia.org/wiki/Kyoto protocol accessed 3rd December, 2008. Nigeria accepted and ratified this international treaty on 10th December, 2004. See http.//en.wikipedia.org/wiki/list of Kyoto protocol signatories. As at October, 2008 about 180 countries have ratified the Kyoto protocol. Id.

(c)

Contributes to adverse climate change as it emits carbon dioxide and methane which causes global warming29 of the environment, pollutes their food and water,

(d)

Causes painful breathing, chronic bronchitis, decreased lung function and death.30

(e)

Causes acid rain, their corrugated house roofs are corroded by the composition of the rain that falls as a result of gas flaring… the acid rain consequently acidifies their lakes and streams and damages their vegetation.

The Federal High Court sitting in Benin City granted all the reliefs as prayed and ordered the Attorney-General of the Federal Republic of Nigeria to immediately set into motion, after due consultation with the Federal Executive Council, necessary processes for the enactment of a bill for an Act of the National Assembly for the speedy amendment of the relevant sections of the AGRA and the AGRA Regulations made thereunder to quickly bring them in line with the provisions of chapter 4 of the Constitution.25

29

The issue of global warming has assumed a higher profile in the world’s agenda on environment thereby directing attention to the issue of gas flaring which is responsible for the production of colossal volumes of GHG. See R. Kaldany, Global Gas Flaring Initiative, 2001 cited in Ishisone, note 9 above. On the impact of global warming see generally, E. B. Weiss, ‘Climate Change, Intergenerational Equity and International Law’ , 615-727) Vermont Journal of Environmental Law (2008 and Mark Latham, ‘The Sunnyside of Climate Change’, 629-638 Vermont Journal of Environmental Law, (2008) wherein Latham reviewed the book of Bjorn Lomborn, titled: Cool it : The Skeptical Environmentalist’s Guide to Global Warming, (New York : Alfred Knopf, 2007). 30 It has also been opined that exposure to Ozone during exercise reduces lung functioning in adults and causes symptoms such as chest pains, coughing and pulmonary congestion. See J. Currie, M.J. Neidell, and J. Schmieder, ‘Air Pollution and Infant Health: Lessons From New Jersey’ (National Bureau of Economic Research (NBER) Working Paper 14196), available at http://www.nber.org/papers/w14196. 25 This decision has been appealed against. At the moment the decision of the Federal High Court, Benin City, per C.V. Nwokorie J. is not strong enough to be an authority for saying that gas flaring could amount to violation of the constitutional right to life and the dignity of the human person as the decision has not been tested on appeal.

This decision is not a strong authority at the moment. However, the question still remains whether there exist any correlation between environmental harms and fundamental human right to life?

In

answering this question, it is imperative to first of all understand the gamut of the term “right to life.” 7

The Nature and Scope of the Right to Life within the Context of Environmental Law

It has remained a subject matter of argument whether or not the Fundamental Human Right to life and even that of the dignity of the human person can be stretched to include right to clean environment. There is no doubt that a clean environment guarantees healthy living. Right to life is a fundamental part of the chapter four of the Nigerian Constitution. 26 Section 33(1) of the Constitution provides that; “Every person has a right to life, and no one shall be deprived intentionally his life, save in execution of the sentence of a Court in respect of a criminal offence of which he has been found guilty in Nigeria.27

These provisions have also found expressions in many international and regional legal instruments.28 26

The concept of right to life has been

See The Constitution of the Federal Republic of Nigeria, 1999. (hereafter referred to as the Constitution) 27 Section 33(2) of the Constitution defines the scope and extent of this right by excluding death in circumstances which are permitted by law. 28 See article 3 of the United Nations Declarations on Human Right, Article 6 of the International Covenant on Civil and Political Right (ICCRR), Article 1 of the American Declaration of the Rights and Duties of Man, Article 4 of American Convention on Human Rights, Article 2 of European Convention on Human Rights and Article 4 of African Charter on Human and Peoples’ Rights.

conventionally understood mostly in relation to the use of force in depriving another of his right to live. This traditional understanding of the right to life does not contemplate violations through environmental harms which obviously do not come by way of use of force.29 A strict construction of the provisions guaranteeing right to life under the Constitution, therefore, will regrettably make the realization of the objectives behind section 33 of the Constitution terribly blur. According to Uwaifo JCA (as he then was) If those rights guaranteed under Chapter IV of the Constitution are to be meaningful, they must be thoroughly examined from every angle and determined in an action complaining of their breach. When breached, they are to be redressed in all circumstances as appropriate. In this connection let me say that it is not enough that we have ratified the African Charter and Peoples Rights or some Universal Human Rights. We must move with the rest of the human race in the implementation of those rights. While the Executive may take steps to examine, or to set in motion, ways of improving human rights situation, the Judiciary should actively show its impetuous readiness to complement or indeed surpass the efforts of the Executive by an inspiring judicial approach to, or definition and recognition of, circumstances of human rights where appropriate and feasible.”30

Thus the UN Human Right Committee has specifically warned against a narrow interpretation of the right to life, on the ground that the 29

It is in this light that the Court of Appeal in interpreting Section 30 of the 1979 Constitution (similar to section 33 of the 1999 Constitution) held that “in order to succeed in an action under section 30 of the 1979 Constitution, and in the context of the third limb of Order 1 Rule 2(1) of the Fundamental Rights (Enforcement Procedure) Rules, 1979, an applicant must prove that the respondent threatened to kill him… the threat should be backed up with some overt act of an attempt to kill or exhibition of weapons or materials capable of effecting the murder or killing of the applicant.” See, Ezeadukwa v. Maduka (1997) 8 NWLR (Pt. 518) 635 P. 661. How does one prove the issue of threat in relation to environmental harms? This decision with all humility is highly myopic as it tends to close the gate of remedy against all complaints on human rights violations which are founded on environmental degradation impact. Multinational oil companies which flare gas do not threaten the lives of the members of their host communities with force however the result of their action does pose real threat. 30 Nemi v. Attorney-General, Lagos State (1996) 6 NWLR (Pt. 452) 42, 58.

obligation on State is not simply to refrain from taking life but also to take positive measures to protect life.31 The Committee also noted that nuclear weapons do not only threaten the right to life because they may be used during hostilities; they threaten the right to life by potentially contaminating the environment with the effect of radiation.32 If this understanding is generally accepted as correct, pollutants contaminating the environment having similar effect may also be seen as threats to the right to life.33 Gas flaring should fall within this category considering the extent of harm it poses to the immediate environment where the gas is flared.34 By way of giving right to life a broader interpretation, the European Court of Human Rights (ECHR) has held that a State has an obligation to take appropriate measures to protect the lives of those within its jurisdiction.35 The ECHR has also held that States also have a duty to guide against dangerous activity, private or public which threaten the lives of their members.36

31

See UN Human Rights Committee, General Comment No. 6: The Right to Life, UN. Doc. HR/GEN/1/Rev 1 at 6 (1994) at paras 1 and 5. 32 Ibid. 33 See Human Rights and the Environment: Reference Paper of the Asian Pacific Forum (APF) 2007 PP. 29 – 30 cited in the Human Rights and the Environment: Final Report and Recommendations by the Asian Pacific Forum in its 12th Annual Meeting of the APF National Human Rights Institution held on 24 – 27 September, 2007 in Sydney, Australia, P. 18. 34 See, Human Rights and the Environment: Final Report and Recommendations, supra note 33, p.19. 35 See, L.C.B. v. The United Kingdom, 23413/94, (1998) ECHR 49 (9 June 1998) and Calvelli and Ciglio v. Italy, 32967/96, (2002) ECHR 3 (17 January, 2002). 36 See, Oneryildiz v. Turkey, 48939/99, (2004) ECHR 657 (30 November, 2004).

8

The Right to a Healthy Environment

It is not in doubt that no specific piece of legislation in Nigeria addresses the issue of the right to a healthy environment. It does also appear that there is no explicit universally accepted right to a healthy environment.44 Much of what has been said of environmental human rights is based on international law which is gradually evolving a linkage between human rights

and

environmental

protection.45

Again,

international

environmental law focuses majorly on trans-border environmental problems and not on domestic environmental issues; it is therefore, not a very useful area of law for individual claims based on domestically environmentally generated harms.46 To this extent, multinational companies may not be able to be held accountable for environmental degradations that flow from their direct 44

See,Alison Lindsay Shinsato, “Increasing the Accountability of Transnational Corporations for Environmental Harms: The Petroleum Industry in Nigeria (2005) (4) Northwest Journal of International Human Right Law, 198. 45 The first of international legal instrument addressing the issue of the relationship between the environment and human rights emanated from the U.N. Conference on the Human Environment, held in Stolkholm, Sweden in June 5 – 16, 1972. This conference culminated in the Declaration of the United Nations Conference on the Human Environment, UN Doc.A/CONF.48/14. 46 According to Wouters & Chanet “The current state of international law regarding the position of (multinational enterprises) MNEs is strikingly unbalanced. International law still focuses too much on protecting the rights of corporations (especially through international rules on trade and the protection of FDI) and lags far behind in regulating their responsibilities. It is telling, for instance, that the statutes of the relevant international criminal tribunals remain silent on the question of criminal responsibility of corporate entities for their involvement in international crimes like war crimes and crimes against humanity. International human rights instruments are also notoriously silent about such responsibilities.” See, J. Wouters & L. Chanet, “Corporate Human Rights Responsibility: A European Perspective (2008) 6(2) Northwestern Journal of International Human Rights; p.263. In Europe today, the European Convention on Human Rights is seen more as an instrument that provides rights for corporations rather than one that lays down obligations for them, ibid.

activities.47 It is therefore even more difficult to pursue a claim of right to life on the basis of environmental harms at domestic level.48

Some

scholars who are anthropocentric in their approach postulate that environmental protection can be pursued through the advancement of human rights either by linking environmental harm to fundamental human right or by expanding the substantive human rights to include the right to a healthy environment.49

At national level, Nigerian

legislators appear to be unwilling to make laws in reflection of this novel area of law as much as the judges are unwilling to interpret existing substantive law to reflect this new trend.

The resultant effect is that

environmental human right claims in Nigeria are most likely going to remain a regrettable game of charades for a very long time.50 47

The major problem here is that there is no direct corporate involvement in the violation of human rights by these oil companies, except that the violations occur in the context of business activities and in favour of the company. Caroline Kaeb calls this “beneficial complicity.” See, Caroline Kaeb,” Emerging Issues of Human Rights Responsibility in the Extractive and Manufacturing Industries: Patterns and Liability Risk” (2008) 6(2) Northwestern Journal of International Human Rights, P. 332. 48 In USA for instance, the Alien Tort Statute 1789 confers on District Courts “original jurisdiction of 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.” In the United States case of Khulumani v. Barclay National Bank Ltd., 346 F. Supp. 2d 538, 548, 554 (S.D.N.Y 2004), the District Court for the Southern District of New York held that it “must be extremely cautious in permitting suits here based on corporation’s doing business in countries with less than exceptional human rights records. The Court held accordingly that a corporation’s business activities alone are not enough to found an action under the Alien Tort Statute. Ibid, at 557. 49 See Prudence E. Taylor, “ From Environmental to Ecological Human Right: A New Dynamic in International Law?” (1990) 10 Georgian International Environmental Law Review, 309, 350 and Kiss, A. & Shelton, D. International Environmental Law, 2nd ed., 2000 p.27 cited in Alison Lindsay Shinsato, supra note 44, 194. 50 This is why, despite the environmental destruction and concomitant human rights violations in the Niger Delta, the actionable legal claims of the Niger Delta population are based mainly on human rights violations such as extrajudicial killings and the military action of the Nigerian Government. See generally Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000), Royal Dutch Petroleum Co. v. Wiwa, 532 U.S. 941 (2001) (all instituted in the United States of America) cited in Alison Lindsay Shinsato, supra note 44, 190.

Commendably, however, certain jurisdiction in Africa has started recognizing the need to expound relevant existing legislation to give effect to a right to clean and healthy environment. In the Ugandan’s case

of

Uganda Electricity Transmission Co. Ltd v De Samaline Inc. Ltd.,50a the court explained this right as follows: I must begin by stating that the right to a clean and healthy environment must not only be regarded as a purely medical matter. It should be regarded as a holistic social-cultural phenomenon because it is concerned with physical and mental well-being of human beings… a clean and healthy environment is measured in both ethical and medical context. It is about linkage in human well-being. These may include social injustice, poverty, diminishing self-esteem, and poor access to health services. That right is not restricted to a clinical model. A better understanding of the import of the right to clean and healthy environment can be seen from the perspective of the World Health Organization’s Constitution.50b The Preamble of the WHO’s Constitution defines ‘health’ as “a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity.”

The WHO

Constitution further provides that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of human being without distinction of race, religion, and political belief, economic 50a

Misc. Cause no. 181 of 2004( High Court of Uganda) cited in Ben Kiromba Twinomugisha, “Some Reflections on Judicial Protection of the Right to a Clean and Healthy Environment in Uganda” 3/3 Law, Environment and Development Journal, 2007, p. 249, available at http://www.lead-journal.org/content/07244.pdf. The expansive interpretation of the right to clean and healthy environment as demonstrated by the Ugandan court was encouraged by the fact the Constitution of the Republic of Uganda, 1995, in article 39, expressly provides for the right to clean and healthy environment. 50b See, World Health Organization Constitution, Basic Documents, 45 th ed., Supplement, October, 2006 available at http”//www.who.int/governance/eb/who_constitution_en.pdf.

or social condition.”50c This conception of ‘health’ is recommended for all Africa law makers and judges. 9

Environment

Corporate

Responsibility

of

Multinational

Companies in Nigeria There appears to be no commonly accepted definition of Corporate Social Responsibility (CSR) as different perceptions of the concept exist depending on the environment to which it is being applied i.e. whether business, political or social environment. For the purpose of this paper the writer adopts the definition by the European Union (EU). The European Union defines CRS as: …the concept that an enterprise is accountable for its impact on all relevant stakeholders. It is the continuing commitment by business to behave fairly and responsibly and contribute to economic development while improving the quality of life of the work force and their families as well as of the local community and society at large.50a

The concern of this part of the paper is on environmental corporate responsibility. From environmental perspective, CSR has been defined as, …the duty to cover the environmental implications of the company’s operations, products and facilities, eliminate waste and envision; maximize the efficiency and productivity of its resources; and minimize practices that 50c

ibid. See, the EU Green Paper on Promoting a European Framework for Corporate Social Responsibility available at http://europa.eu.int./comm/employmentsocial/soc.dial/crs/greenpaperen.pdf. 50a

might adversely affect the enjoyment of the country’s resources by future generations.”51 The question now is how and why corporations52 should incorporate environmental concern into their business policies. It is not in dispute that environmental protection is in the public interest and of great concern to private individuals as well.

Traditionally, Government

assumes principal responsibility for ensuring safe environment and when environmental

problems

arise,

the

responsibility for mitigating the effect. government’s corporation

commitments by

the

to

nature

the of

government

bears

This no doubt compounds

governed,

their

usually

especially

businesses

as

some

generate

such

environmentally – unfriendly substances for which the government ought not to take responsibility.

To this extent, it becomes imperative that

corporations be placed under obligations to adopt an environmentally sound behaviour, and this has been attempted through statutory regulations, sanctions and sometimes through incentives.53

51

See, Piotr Mazurkiewicz, “Corporate Environmental Responsibility: Is A Common CRS Framework Possible?”, available at http;//siteresources.worldbank,org/EXTDEVCOMSUSDEVT/resources/csrframework.pdf, accessed Dec. 16, 2008. 52 For the origin and evolution of multinational companies, see generally, Emeka Duruigbo, “Corporate Accountability and Liability for International Human Right Abuses: Recent Changes and Recurring Challenges” (2008) 6 (2) Northwestern Journal of International Human Rights, 222. 53 At present, a corporation may be assessed on the basis of their environmental stewardship. Some times consumer may choose to patronize a company that has sound human right policies and effectively engaged in the observance of such policies. Not only “consumers, but also investors and even workers, attach importance to corporations’ human rights records and have a clear preference for responsible businesses” See, Wouters & Chanet, supra note 46, 266.

In Nigeria, corporations, more often than not indulge in the promotion of sport, provisions of cars to the public through raffle draws, etc.54

All

these are inextricably tied to profit making and do not represent pure CRS especially in the area of respect for human rights.

It has been

generally observed that multinational oil companies rarely voluntarily engage in CRS in the area of providing a clean and habitable environment for the communities where they operate. The provision of scholarship, employment, training and empowerment schemes which some oil and gas companies in Nigeria seldom indulge in still do not completely demonstrate commitment on the part of oil companies to ward the environment.54a

Further more, oil and gas companies have

been known in Nigeria to have occasionally absolved themselves from the desolation of the Niger Delta by claiming to be tenants of the Federal Government.

These companies do not feel a genuine sense of

responsibility to the local community as they often claim that they are meeting all their contractual obligations to the Nigerian government.55 This attitude undermines the relevance of environmental maintenance to 54

Corporations often bring significant benefits to the states where they operate; by generating tax revenues, creating jobs, transferring skills and technologies and they often make a positive contribution to the development of a country but could cause serious human right problems in the process. See, Sean D. Murphy, “Taking Multinational Corporate Codes of Conduct to the Next Level “ (2004 – 2005) 43 Columbian Journal of Transnational Law, 389 at 397. See also, M. T. Kamminga, “Holding Multinational Corporations Accountable for Human Rights Abuses: A Challenge for the E. C. ( Philip Alston ed.) The E. U. and Human Rights, Oxford University Press, 1999, 553, 554. 54a Some oil companies have also provided water, electricity, built schools and constructed several kilometers of road in the rural areas (only to provide good access to their site of operation). 55 See Okechukwu Ibeanu, supra note, p.11

economic growth.56 as well as the fact that the effect of the activities of oil and gas companies are mostly felt in the immediate communities where they operate,57 as well as According to Osunbor,58 It is correct to assert that oil producing companies in this country have reaped huge benefits and damaged the environment more than they have cared to improve it.

Admittedly, the oil companies operating in Nigeria are facing genuine difficult political and economic environment at all levels.

This is

particularly so as the Nigerian government and successive government leaders have not been responsive to the needs of the local people in whose communities the oil is being exploited. Government leaders have severally misspent and misappropriate the oil wealth without any reasonable investments.

investment

on

education,

health

and

other

social

The government has seldom played one oil company

against the other so as to play down on its responsibility which should 56

See, Barbara A. Boczar, “Avenues for Direct Participation of Transnational Corporations in International Environmental Negotiations (1994) New York University Environmental Law Journal, p.1. According to Boczar, “In the last fifteen years, the realization that national environmental maintenance is linked to national economic growth has led to unprecedented public and political awareness of global environmental issues. Stratospheric ozone depletion, global climate change, acid rain, and desertification are examples of transboundary environmental problems that require creative solutions developed through multinational participation.” Ibid. 57

This behavior appears not to be restricted to corporations doing business in Nigeria alone. According to Reinhardt, F.L., Stavins R.N. and Victor, R.H.K, “Despite a large and growing literature, evidence of firms actually sacrificing profits in the social interest is lacking. The bulk of the available evidence suggests that most firms treat socially responsible actions the same way they view more traditional business activities. Instead of altruistically sacrificing profits, they engage in a more limited – but more profitable – set of socially beneficial activities that contribute to their financial goals.” Corporate Social Responsibility through an Economic Lens available at http://www.nber.org/papers/w13989. 58 See O.A Osunbor, “Corporate Social Responsibility towards Environment: The Limit of Law” (J. A Omotola ed.) Environmental Laws including compensation, Lagos: Faculty of Law, UNILAG, 1990, p.84.

arise from the quota or share of the joint venture being operated by the multinational companies. The resultant effect of this is hostage-taking, closure of flow-station, sabotage, and incessant armed conflict in the Niger Delta. Notwithstanding, oil companies are not absolved from the share of responsibility for the preservation of the environment where they operate.59 Various legislation exist in Nigeria which attempt to control the behaviour of multinational companies whose activities are harmful to the environment the environment but because of lack of political will to enforce these laws and over dependence on oil and oil companies, these enactments have not brought about the desired environmental protection that can guarantee quality air in the Niger Delta. According to Shinsato60 TNCs (Transnational Corporations) have increased the rate of man-made environmental destruction and concomitant harm to human. Indigenous groups are often affected the most severely; their sustainable life style becomes impossible as natural resources are decimated by TNCs.61

10

Minimum Standard for the Observance of Environmental Human Rights by Multinational Oil Companies in Nigeria

59

See, Bronwen Manby, The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Communities, (Human Right Watch Organization, 1999) P. 160. 60 See, Shinsato, supra note 44, 186. 61 Ibid.

Corporations, especially multinational oil companies, have become so large and more powerful over the past three decades.63

It therefore

manifestly shows that host countries especially developing countries like Nigeria which wholly depends on oil cannot naturally possess the will and means to complement and enforce strict standards on these companies.64 It is suggested that given that environmental degradation and its effects on humans are of global concern65 the international community should create a legal mechanism for claims against environmental harms which are violations of human rights. For example, in Lopez Ostra v Spain,

66

the European Court of Human Rights found

that Spain had violated article 8 of the European Convention of Human Rights because the State failed to stop the activities of

a waste-

treatment plant whose operations caused nuisance and health problems for nearby inhabitants. It is further suggested that multinational companies in Nigeria should be placed under an obligation to set for themselves a set of codes or voluntary

guidelines

which

will

impute

corporate

human

rights

responsibility into the policies and business ideologies of these

63

See, Wouters & Chanet, supra note 46 p.263. The case of Gbemre v. SPDC, supra is a testing ground which will determine to a very large extent the readiness of our Judges to judicially create principles which can form a bedrock for calling multinational companies whose activities are threat to life to order. 65 See, Shinsato, supra note 44, 187. 66 303 – C Eur. Ct. H. R. (Ser. A) 16 – 17 (1994) cited in Vivian Lee, “Enforcing the Equator Principles: An NGO’s Principled Effort to stop the Financing of a Paper Pulp Mill in Uruguay” (2008) 6(2) Northwestern Journal of International Human Rights, 354. 64

companies. These principles will also set a minimum standard for the observance of environmental human rights in their area of operation. While these guidelines may not be binding or self-enforcing, at least NGOs, news media and individuals can on the basis of such rules mount public shaming campaign against any company found wanting or not committed to the observance of such guidelines.67 It has also been widely suggested that the inhabitants of the local communities should have access to information as regard the nature of activities of oil companies especially those activities which pose environmental threats to the public.68 It has been rightly identified that the right to access information encourages openness;69 enables citizens to participate meaningfully in decisions that directly affect their livelihood and provides the basis for monitoring government and private sector activities. 11

Conclusion

The dynamic nature of human rights (especially right to life) demands the continuous evolution of laws, rules and regulation at international,

67

A good example of this practice is the adoption of the Equator Principle: A Financial Industry Benchmark for Determining, Assessing and Managing Social & Environmental Risk in Project Financing in July 2006. See, generally Vivian Lee, id. The text of these principles hereafter referred to as equator principles is available at http://www.equatorprinciple.com/documents/Equator_principlepdf. 68 See, Ben Kiromba Twinomugisha, supra note 50a, p 255. 69 See, Ikoja Odongo and Dick Kawooya, “Access to Information in Uganda; An Examination of Recent Development”, (2006) East Africa Journal of Peace and Human Rights, 12, cited by Ikoja Odongo and Dick Kawooya, ibid.

regional, and national level and amongst non-state actors to maintain relevance in a rapidly changing world.70 If a reasonable degree of environmental responsibility must be achieve especially as it relates to gas flaring in Nigeria , the Nigerian government must tighten its knots against oil and gas companies by coming out with a clear deadline for the flaring of gas in Nigeria. The importance and sanctity of human life demand a complete stoppage, and not the setting of some ambiguous conditions for the continuation of gas flaring.

70

See, Shinsato, supra note 44, 186.