Professional Documents
Culture Documents
Brown E. Umukoro
and Property Law, Faculty of Law, Delta State University, Oleh Campus,
Nigeria.
+234 80 52762618
brownmuk4u@yahoo.com
Abstract
The writer, in this paper, examines the national legal framework for the
companies and how these companies can be held accountable for the
1 Introduction
3 Gas Flaring
Claim in Nigeria
7 The Nature and Scope of the Right to Life within the Context of
Environmental Law
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
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
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
companies and the duty on the oil companies to improve on the quality
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
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
reduced industrial activities.10 The low domestic oil prices have also
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.
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
Section 2(1) of the AGRA further requires oil and gas producing
for either –
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
plan to stop the flaring of Gas in Nigeria given the conditions set out in
(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;
FEPA Act17 provides that the Agency shall establish more criteria,
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;
(c) The most appropriate means to prevent and combat various forms
of atmospheric pollution.
pollution arising from gas flaring. It could be argued therefore that the
FEPA Act merely contemplates such air pollution like emissions from
quality air.
exploration of oil mineral in the Niger Delta area and the giving of advice
That section 18 of the FEPA Act and section 7 of the NDDC Act have not
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
inhabitants. The flares are very loud, dangerously hot, which gratingly
smoke containing several harmful gases.20 This is the reason why it has
perish in our own waste.21 Akanki22 amplifies this point further when he
says that:
Accordingly, Gas flaring has been blamed for several health problems,
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
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
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
Nigeria to immediately set into motion, after due consultation with the
bill for an Act of the National Assembly for the speedy amendment of the
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
7 The Nature and Scope of the Right to Life within the Context
of Environmental Law
Fundamental Human Right to life and even that of the dignity of the
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
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
threats to the right to life.33 Gas flaring should fall within this category
Court of Human Rights (ECHR) has held that a State has an obligation to
jurisdiction.35 The ECHR has also held that States also have a duty to
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
the issue of the right to a healthy environment. It does also appear that
substantive law to reflect this new trend. The resultant effect is that
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
being and not merely the absence of disease or infirmity.” The WHO
Companies in Nigeria
as,
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
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
some oil and gas companies in Nigeria seldom indulge in still do not
ward the environment.54a Further more, oil and gas companies have
responsibility to the local community as they often claim that they are
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
leaders have not been responsive to the needs of the local people in
Niger Delta.
enforce these laws and over dependence on oil and oil companies, these
that can guarantee quality air in the Niger Delta. According to Shinsato60
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
Nigeria which wholly depends on oil cannot naturally possess the will
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
NGOs, news media and individuals can on the basis of such rules mount
It has also been widely suggested that the inhabitants of the local
livelihood and provides the basis for monitoring government and private
sector activities.
11 Conclusion
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
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
70
See, Shinsato, supra note 44, 186.