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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

brownmuk4u@yahoo.com
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
Cap F10 LFN, 2004 (hereinafter referred to as FEPA Act).
17
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
Cap N86 LFN, 2004 (hereinafter referred to as NDDC Act)
19
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


25
to life and dignity of the human person. 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 The concept of right to life has been

26
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 well-

being 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.
50a
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.
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 government usually bears

responsibility for mitigating the effect. This no doubt compounds

government’s commitments to the governed, especially as some

corporation by the nature of their businesses 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 investment on education, health and other social

investments. 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,


66
in Lopez Ostra v Spain, 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.
64
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.
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.equator-
principle.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.

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