Jake Effoduh.
The Niger Delta is one of the ten most important wetland and coastal marine ecosystems in the world and is home to more than thirty-one million people.[1] Its massive oil deposits have been extracted for decades by the government of Nigeria and multinational oil companies. Extracted crude oil has generated more than six hundred billion U.S dollars since the 1960s;[2] but environmental quality and sustainability of the overall wellbeing and development of the region remain a serious concern as more than sixty percent of the people in the region depends on the natural environment for livelihood.[3] The environmental resource base, which is used for agriculture, fishing and the collection of forest products, is the principal source of food. Thus, pollution and environmental damage in the immediate and surrounding areas pose significant risks to economic and other human rights’ issues.
The damage from oil operations has reached disturbing levels as it adversely impacts the livelihood of residents, and has acted synergistically with other sources of environmental stress to result in a severely impaired coastal ecosystem and has further compromised the general health of already impoverished people.[4] Devastating oil spills in the Niger delta over the past five decades will cost one billion Naira to rectify and would take up to thirty years to clean up.[5]
“Being on top the situation” and other promises made by the government has not stopped desperate indigents from taking foreign oil-workers hostages for pecuniary benefits.[6] Even the laws against kidnapping have not reduced this practice. The special packages as well as social, economic and educational benefits created by the government and the multinationals for young people in the region only get to touch the advantaged or privileged “Creamy layer.[7]”
Speaking to a few young folks in the region, they expressed their frustration over the current condition. “We are like squatters on this land. We have no entitlement here. The few indigenes that benefit from this oil have separated themselves from us and they have widened the gap between them and us. They are all rushing to Abuja to collect money and build houses meanwhile we are stuck here to suffer…”[8] “The rivers here are messed up, oil everywhere. The plants are abnormal, even we have become abnormal (laughs). The gas flaring is constant, and people are getting sick with illnesses that our forefathers didn’t have. The worst part is that no one is saying anything about it… Even the president does not seem to care”[9]
The arguments for extending social responsibility standards to corporations are well known.[10] Suffice it to say, for present purposes, that oil companies have for a long time been expected to observe socially responsible standards of behaviour, as expressed in numerous codes of conduct drawn up by intergovernmental organizations, of which the most significant have been the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy of 1977.[11] But the UN-backed Guiding Principles on Business and Human Rights[12] is the huge step forward for efforts to address these problems, however; it is driven by weak government action and undue deference to the prerogatives of oil companies.
The Guiding Principles were supposed to “operationalize” the UN’s “Protect, Respect, Remedy” framework, which stresses the responsibility of governments to protect individuals from human rights abuses tied to business operations, the responsibility of companies to respect human rights, and the need for abuse victims to be able to access effective remedies[13]. The principles mark a real step forward in some ways, not least because they have secured remarkably strong buy-in from companies that just a decade ago would have disputed the idea they even have human rights responsibilities. A potentially useful and practical guide to companies that want to behave responsibly, they bring us closer than we have ever been to a shared understanding of how oil companies and extractive industries should think about their core human rights responsibilities.
The people in the Niger Delta region are seemingly helpless in the current predicament and the fact that there has to be tons of military officers and policemen deployed to the region to guard oil companies as they carry out their work, evidences a lack of social corporation. Business cannot flourish fairly in an environment where fundamental human rights are not respected. Corporations that do not observe the fundamental human rights of the individuals or communities among which they operate, are in my opinion sitting on a time bomb.
Since Nigeria lacks an effective legal order for the regulation of socially responsible corporate behaviour, Muchlinski[14] posits that a proper system of regulation which demands that oil companies observe fundamental rights at work, and in their relations with the wider community, is one way of respecting the rights of the people. It entails the adoption of detailed and specialized regulatory laws. These will give effect to the aspirations behind human rights standards through the establishment of wider regulatory regimes in areas such as labour rights, health and safety or environmental protection, to name but a few.
While we anticipate that the passage of the Petroleum Industry Bill will include a legally binding commitment to the observance of human rights as part of the duties of the industry, supplemented by reporting obligations on corporate social policy, specialized laws like the Nigerian Oil and Gas Industry Content Development Act can ensure the observance of minimum standards of human rights and social responsibility by national corporations. Provisions in international investment agreements addressed both to states and to corporations, requiring the observance of fundamental human rights in the course of their economic operations, may be included.[15] Thus, it is not difficult to create technical legal solutions to the question of corporate responsibility for human rights violations. The real issue is whether the political will exists to put them in place. Although the problem of violations of human rights by corporations can be overstated, in those exceptional cases where an oil company is implicated in such activities the law must not remain silent. It must be able to meet the problem head-on and to control and to deter such behaviour.[16]
[1] Report of the Niger Delta Technical Committee, November 2008, p102. Figure is based on the 2006 census.
[2] G. Wurthmann, “Ways of Using the African Oil Boom for Sustainable Development”, African Development Bank, Economic Research Working Paper Series, No. 84.
[3] United Nations Development Programme (UNDP), Niger Delta Human Development Report, 2006, p7.
[4] Amnesty International, “Nigeria: Petroleum, Pollution and Poverty in the Niger Delta”, (2009) p27.
[5]United Nations Environmental Programme Report <http://postconflict.unep.ch/publications/OEA/UNEP_OEA.pdf> accessed 1 December 2014.
[6] Ibid. (Footnote 1)
[7] The concept of the ‘Creamy Layer’ is drawn from a case decided by the Supreme Court of India in Indra Sawhey v Union of India (1992) where the Court held that such affirmative actions are constitutional only if they target the weakest members of the poorer classes. For this aim, the member of these classes who have a high social level of status (the “creamy layer”) must not benefit of “reservation”: “Reservation in promotion is constitutionally impermissible as, once the advantaged and disadvantaged are made equal and are brought in one class or group then any further benefit extended for promotion on the inequality existing prior to be brought in the group would be treating equals unequally. It would not be eradicating the effects of past discrimination but perpetuating it.
[8] Words of Interviewee 1 from Bongafield, Nigeria (1st December 2014)
[9] Words of Interviewee 2 from Ogoniland, Nigeria (1st December 2014)
[10] See Parkinson, Corporate power and responsibility; Dine, The governance of corporate groups; Muchlinski, Multinational enterprises and the law, pp. 93–5; UNCTAD, The social responsibility of transnational corporations (New York and Geneva: United Nations, 1999); UNCTAD, World Investment Report 1999 (New York and Geneva: United Nations, 1999), ch. XII.
[11] ILO, Official Bulletin (Geneva, 1978), vol. LXI, series A, no. 1, pp. 49–56, reproduced in UNCTAD, International investment agreements: a compendium, pp. 89–102. See also ILO, Declaration on Fundamental Principles and Rights at Work (Geneva: ILO, 18 June 1998).
[12] At its session in June 2011, the United Nations Human Rights Council unanimously endorsed the UN Guiding Principles on Business and Human Rights (Guiding Principles) for implementation of the UN ‘Protect, Respect and Remedy’ Framework on Business and Human Rights. UN Doc A/HRC/17/L.17/Rev.1, 15 June 2011
[13] Albin-Lackey, C., “Without Rules: A Failed Approach to Corporate Accountability”, (Human Rights Watch, 2013)
[14] ibid, Muchlinski (Footnote 11)
[15] See Kamminga, ‘Holding multinational corporations accountable’.
[16] Ibid, Muchlinski (Footnote 11)
