Environmental Degradation and Oil Spillages: an Indictment to Human Right and Environmental Law
CHAPTER ONE
Objective of Study
In recognition of the dangers posed by environmental degradation[1], the international community and the Nigerian government have put in place various laws to combat environmental degradation, while the various environmental laws in Nigeria and that of the international community (international legal instrument) in combating environmental degradations intended to yield encouraging result by enhancing environmental sustainability. The recalcitrant attitude of those involved in environmental degradation has continued to attenuate environmental laws with the government and its agency indirectly collaborating in the act of flouting environmental laws.
This research shall focus on the degradation cause by environmental pollution (gas flaring and oil spillages) in Niger-Delta region of Nigeria.
CHAPTER TWO
HUMAN RIGHTS AND ENVIRONMENTAL LAW CONCEPT
The Concept of Human Rights
Human rights according to UNESCO1 are neither a new morality, nor a lay religion and are much more than a language common to all mankind. Human rights have been recognized to be those rights that are very essential to the realization of human aspirations, without them life is meaningless and may be regarded as nasty, brutish and short. According to Arnold Lien, human rights are universal rights attaching to the human being wherever he appears without regard to time, place, colour, sex, parentage or environment. Conceived in this regard human rights are derived from the inherent dignity of the human person. They are rights accruing to an individual because he is a human being.
In the case of Ransome Kuti & Ors v. A.G of the Federation & Ors Kayode Esho, JSC (as he then was) noted that human rights are those rights that adhere to human beings as such and they stand tall above the ordinary laws of the land. In Enakero & Ors v. Abacha & Ors, a distinction was properly drawn between the two terms. In that case, the court postulated that due to the development of constitutional law, differences have emerged between fundamental rights and human rights. Human rights were developed from and out of the wider concept of natural rights. They are rights, which every civilized society must accept as belonging to each person as a human being. According to the court, fundamental right remains in the realm of domestic law. Human rights have been categorized under three generations. First generation, second generation and third generation of human rights.
First generation refers to traditional civil and political liberties. Such rights include, freedom of speech, of religion and of press and freedom from torture. These rights are meant to ensure a duty of non-interference by of government against individuals. They are the “classical” human rights found in many bills of rights of the constitutions of many countries. The second generation of rights generally requires affirmative government action or their realization, these are social and economic rights that are often styled as “group rights” or “collective rights” and they pertain to the well-being of the whole society. Unlike the first generation, which has been perceived as individual entitlement, these are collective.
CHAPTER THREE
ENVIRONMENTAL DEGRADATION AS AN INDICTMENT OF HUMAN RIGHT AND ENVIRONMENTAL LAW
An Appraisal
Before the recent rise in the wave of environmental degradation as a result of oil spillages and gas flaring in the Niger-Delta area of the country, there had been a number of legal instruments prohibiting environmental degradation and providing sanctions against offenders but these laws remained effective mainly in the statute books as there was hardly any serious attempt at enforcing them.
In recognition of the dangers posed by environmental degradation, the international community has made treaties, conventions and regulations to curb the menace of which Nigeria is a signatory to. As usual unenforceable and lax environmental laws and regulations are deadly Nigerian factors that have directly and indirectly given a leverage to the multinational oil companies operating in the Niger-Delta region to continue to violate all the domestic and international laws with impunity; and to continue to put greater premium on what they accumulate than caring about the proverbial goose that lays the golden egg.
ENVIRONMENTAL DEGRADATION AS AN INDICTMENT OR VIOLATION OF HUMAN RIGHTS
From a legal point of view, pollution or environmental degradation is the wrongful contamination of the atmosphere or of water or of soil to the material injury or damage to the rights or property of people living in the said environment or region2. Environmental degradation is a breach of man’s right to live in a clean and healthy environment. Man as a living being is entitled to live in a clean, healthy environment devoid of contamination and pollution from oil spillages and gas leakages or flaring and other industrial waste.
Environmental degradation occurs in relation to many uses and activities of man, including the mining, exploration and use of petroleum and its by-products. In all these cases, there is damage to marine life, wildlife habitat, farmland, shrines, amenities and ultimately to human life.
CHAPTER FOUR
GLOBAL EFFORTS AT COMBATING ENVIRONMENTAL DEGRADATION
AN APPRAISAL
As a result of the dangers posed by environmental degradation to life[1] worldwide, United Nations Organization[2] (hereinafter referred to as UN) in 1972 on Human Environment Conference at Stockholm confirmed not only the emergence of environmental protection as a new focus of legislation so as to avoid crisis but also emphasized the close interrelation between the environment and development. Lamentably many countries, especially the developing countries of the world are yet to treat the issue of environmental protection seriously, perhaps due to the ignorance of the governments and people as to the dangers of environmental degradation.[3]
It is worthy of note that since 1972, there have been series of conferences and summits on the need for the protection of the environment, for example eighty-two international conventions are applicable to Nigeria and she has only signed thirty while fifty-two have not been signed.
ENVIRONMENTAL DEGRADATION AS AN INDICTMENT TO ENVIRONMENTAL LAW IN U.S.A. AND UNITED KINGDOM
We shall examine briefly how environmental degradation have been tackled in the above two countries and the successes so far achieved in combating the menace.
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
CONCLUSION
So far effort has been made from chapter one to chapter four of this thesis in discussing how environmental degradation in the form of oil spillages or blow out and gas flaring or leakages constitute an indictment to human right and environmental law in Niger Delta region of Nigeria with references to degradation in other parts of the world like U.S.A, Australia etc. Global efforts, inability and how industrialized countries constitute environmental degradation culprits was also discussed.
There is no gainsaying, the fact that the dimension and the alarming rate of environmental degradation through oil blowouts or spillages and gas flaring leakages in Niger Delta region of Nigeria in recent times require environmental law that is workable and enforceable in order for the menace to be curtailed in Niger Delta region and the whole Nigeria at large. Lamentably, the National Assembly has shown lack of commitment and interest in protecting, preserving and conserving the blessed environment of the Niger Delta region of Nigeria through the instrumentality of a workable and enforceable environmental law.
Looking at the provisions of the NESREA Act[2] in Section 8(g), (k), (n), (s) which clearly ousts the Agency from environmental degradation arising from oil spillages or blowout and gas flaring or leakages which has been the thrust of this thesis, shows that the Northerners who make up the majority of the National Assembly, passed this Act mainly because the Northerners do not suffer from environmental degradation as a result of oil blowout /spillages and gas flaring/leakages, due to negative politicking. I want to use this medium to remind persons in authority (like the Northern National Assembly members) of what Shridak Ramphal, former Commonwealth Secretary General, calls “otherness”. This concept is the attitude of persons who enjoy temporary advantage to perceive someone else as the other. The lessons of history are clear that each and every member of the society is in time a victim of the harsh mistreatment he metes out to others. Akin to the above, there is a story of Pastor Niemoeller who lived in Nazi Germany. He failed to speak out when the SS (Hitler’s elite guard) went for the Jews, the Communists, the trade Unionists and finally the Ernster Bibel for Chers (Earnest Bible Students as Jehovah’s Witnesses were then known in Germany) because he was not one of them. Then, ultimately, the SS went for him; and there was no one left to speak for him.[3]
What is the lesson here? Most of the oppressive and repressive rules made against certain group, body or region in a country (like Niger Delta) are fashioned by persons in authority (Northern National Assembly members) but no sooner do they make the rules than they become victims. Who says that oil cannot be found in the Northern part of Nigeria? If oil and gas can be found in the desert of Saudi Arabia, oil and gas can be found in Northern Nigeria with better and powerful technology. Thus, the National Assembly should stop all forms of negative politicking in the act of law making, for it does more harm than good, and nobody can tell where the next oil and gas will be struck.
RECOMMENDATIONS
Essentially, oil blowout/spillages and gas flaring/leakages are deleterious to the flora and fauna, including the environment at large. Thus, tackling the menace requires not just making laws on the part of the government, rather government should ensure that environmental laws made are enforceable, implementable and workable. For instance the Nigeria primary environmental law, the NESREA Act should be reviewed and the ousting provisions (Section 8 (g, k, n, s) which ousts the Agency from environmental degradation arising from oil and gas section should be repeated for the Act to be of relevance for the sustainable environmental development in resource exploitation and management.
Every environmental legislation in Nigeria and elsewhere aimed at sustainable environmental development in resource exploitation and management must capture the problems of multi-national oil companies, industry, mining, forestry, urban and rural dwellers, inland waters, marine resource, flora and fauna, air and atmospheric issues, soil and sub-soil etc in a holistic manner for the achievement of maximum potentials for all. Thus for this purposes environmental law should adopt a pattern, which ensures that a domino effect is achieved in various areas of environmental control and regulations.
Environmental degradation through oil blowout/spillage and gas flaring/leakages should be made a strict liability offence in Nigeria and the Chapter II of the Constitution[5] should be made enforceable by repealing the section that made it unenforceable.[6]
Fighting environmental degradation resulting from oil spillage/blowout and gas flaring/leakages requires a holistic approach; heavier punishments and enlightenment, issuing of draconian directives may therefore not be meaningful without addressing the causes for the continued rise in environmental degradation resulting from oil spillage/blowout and gas flaring/leakages – both historical and current. For example, can it be divorced from the widespread corruption in society? Or the harsh economic climate in Niger Delta and the whole Nigeria at large? Or high unemployment? Collin Powell[7] aptly summarized this point thus:
Nigeria is a nation of (120) million people with enormous wealth. And what they could have done with the wealth over the last twenty years – they just pissed it away. They just tend not to be honest. Nigerians as a group, thankly, are Marvelous scammers. I mean it is in the national culture.
Nigerian leaders or Government in various levels compromise in the business of protecting, preserving and conserving the God given environment because of the money derivable from the sector. Similarly, disregard for the rule of law, lack of transparency and accountability in government certainly does not help matters.
The Nigerian constitution provides for rights from what environmental rights can be construed if the courts adopt an expanded and liberal interpretation of the provisions. The Nigerian constitution provides for a right to life.[8] The right to life, which is guaranteed by the Nigerian constitution, cannot be fully secured if that life is exposed to environmental hazards and pollution resulting from the exploration and exploitation of oil and gas or better put as a result of oil spillages/blowout and gas flaring/leakages. Thus there exists a close link and interrelationship between the right to life and a clean environment.
It can therefore be gleaned that the right to a clean environment can be construed from the provisions of the right to life guaranteed in the Nigerian constitution. The Nigerian courts can borrow a leaf from the imaginative interpretation given to the right to life by the Indian Courts. In the case of Francis Coralie v. Union Territory of Delhi,[9]the Supreme Court of India observed as follows:
The fundamental right to life which is the most precious human right and which forms the arc of all other rights must, therefore, be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and the dignity of individual and the worth of the human person. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter. It was also captured by the same court, in the same spirit in Shanti Star Builders v. Nafyan Whimalal Totame & ors[10] that:
Basic needs of man have traditionally been accepted to be…. Food, clothing and shelter. The right to life… would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in… for a human being (the right to shelter) has to be a suitable accommodation which would allow him to grow in every aspect – physical mental and intellectual.
Thus by so doing our environmentally buried hope and opportunities in Niger Delta will be resurrected.
The Nigerian Government in collaboration with the multinational oil companies should expedite action in the development of Niger Delta region of Nigeria.
Finally, Nigeria must through its environmental authorities or agencies continuously seek ways and means of developing bilateral and multi-lateral co-operation with other nations with a view to updating its implementation strategies for the use of the law in facilitating development in environmental policies. The countries of both North and South need to co-operate in order to ensure the continued existence of this planet[11].
References
- Atsegbua L. Oil and Gas Law in Nigeria theory and Practice, 2nd Edition.
- Atsegbua L. Environmental Law in Nigeria. Theory and Practice.
- Nkengika & Salisu Matori: Oil Exploration in Northern Nigeria. Problems and Prospects.
- Okorodudu-Fubara, M.T. Law of Environmental Protection.
- Inegbedion N.A. & Odion J.O. Constitutional Law in Nigeria.
- Adaramola, F. Basic Jurisprudence, 2nd Edition.
- Oxford Advanced Learner’s Dictionary, 6th Edition.
- Blacks Law Dictionary (8th Ed.). (Minnesota: West), Law Publishing.
- Girzon, L.B. Dictionary of Law (London: Pitman Publishing, 1993).
- Osborn’s concise Law dictionary (8th ed.) (London: Sweet & Maxwell, 2002).
- Suleiman, N. (ed). The Nigerian Law Dictionary (Zaria: Tamaza Publishing Co. Ltd., 1996)
