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A CRITICAL APPRAISAL OF THE IMPACT OF THE ACTIVITIES OF MULTINATIONAL OIL CORPORATIONS ON HUMAN RIGHTS IN THE NIGER DELTA REGION OF NIGERIA

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ABSTRACT

Multinational  Oil Corporations  (MOCs)  are oil prospecting  and mining  industries with different subsidiaries  in joint venture agreement with State owned Oil Companies  in different regions of the world. In Nigeria, the activities of these MOCs are most prominent in oil producing communities in the Niger Delta Region. The MOCs operating in Nigeria have impaired the environment of the host communities through negative oil exploration activities resulting in oil pollution that led to increased poverty, unimaginable underdevelopment  and human rights violations  and violent conflicts.  Multinational  oil corporations  are powerful entities  that  could  not  easily  be  held  accountable  for  their  atrocities  under  domestic jurisdictions  because they wield a  high influence on host governments coupled with non- justiciability or lax environmental laws that prevail. Therefore, this thesis will examine the

different  possibilities  for  extraterritorial  legal  action  against  MOCs  by  relying  on  the opportunities  provided  by American  Alien  Tort  Claims  Act  of 1798.  This  work  further studied the application of international  human rights jurisprudence  to provide  the linkage between  human  rights  violations  and  the  operations  of multinational  oil  corporations  in Nigeria.  Hence,  this  thesis,  will  “Critically  Appraisal  of the  Impact  of the  Activities  of Multinational Oil Corporations on Human Rights in the Niger Delta Region of Nigeria”.

This research work will be divided into seven chapters. Chapter one presents a general introduction of the thesis. Chapter two will consist of definitions and analysis of conceptual frameworks  while  Chapter  three  will  be  an  analysis  of  national  and  international  legal standards on the protection of human rights to development,  freedom from exploitation of natural resources,  environmental  pollution  and  peace  while  chapter  four  will discuss  the complicity of multinational oil corporations on human rights violations in the Niger Delta Region. Chapter five will examine the various ways in which the activities of MOCs have affected the development, security situation and limitations on access to justice for litigants challenging  illegalities  of the  Multinational  Oil  Corporations  in the Niger  Delta  Region. Chapter six will address  the  linkage between multinational corporations and human rights accountability in home states. Lastly, this thesis will be concluded with chapter seven which presents   the   summary   of  findings, conclusion and   recommendations   in  resolving   the problems associated with the activities of MOCs operating in Niger Delta Region of Nigeria.

CHAPTER ONE GENERAL INTRODUCTION

1.0 Background of the Study

Since 1956 when oil was discovered in commercial quantity in Oloibiri in present day Bayalsa State, the multinational  oil corporations  carrying out oil mining  operations  in the Niger Delta have been involved in activities that have impacted negatively on the rights and well being of people living in the Niger Delta Region. It has been estimated that there are about eighteen international oil companies operating in Nigeria, with a few dominant players such as Shell, Exxon/Mobil, Chevron/Texaco, Elf and Agip accounting for an estimated 99% of the crude oil production.1

There  has  been  an  upsurge  of  concern  over  human  rights  and  multinational  oil corporations  (hereinafter  referred  to  as MOCs)  in their  host  communities.  A  number  of significant  cases  have  been  documented  of apparent  collusion  between  MOCs  and  host governments in major violations of human rights. These have been brought to public attention in the media through the actions of concerned individuals and groups, most notably by non- governmental   organizations   (NGOs)   concerned   with   human  rights.  Among  the  most

publicized  cases have been the operations  of Shell in Ogoniland,2   BP in Colombia,3   and

1Amarachi Okorie, “Nigerian Oil: The Role of Multinational Oil Companies”,   E297c Term Paper, Spring Quarter 2005, p.6. The oil industry in Nigeria is operated by six-joint venture operations between Nigeria and the Trans-National Corporations: Shell (Netherlands/UK), Exxon Mobil (US) Chevron-Texaco (US), AGIP (Italy), and Elf-Aquitaine (France). The Nigerian government under the auspices of the Nigerian National Petroleum Company (‘NNPC) operates in partnership with these multinational companies. See Alison Shinsato, “Increasing Accountability of Transnational Corporations for Environmental Harms: The Petroleum Industry in Nigeria”,4 North-western University Journals of International Human Rights. 186 available online at http://www.law.northwestern.edu/journals/v4/nl, visited 13 November, 2010.

2 See Human Rights Watch, Nigeria, the Ogoni crisis: a case study of military repression in south east Nigeria (New York: Human Rights Watch, 1995); Ben Naanen, ‘Oil producing minorities and the restructuring of Nigerian federalism: the case of the Ogoni people’, Journal of Commonwealth and Comparative Politics 33,

1995, p.45; Eghosa Osaghae, ‘The Ogoni uprising: oil, politics, minority agitation and the future of the Nigerian state’, African Affairs 94, 1991, p. 325; S. Skogly, ‘Complexities in human rights protection: actors and rights involved in the Ogoni conflict in Nigeria’, NQHR 15: 52, 1997; Heike Fabig, ‘The Body Shop and the Ogoni’, in Michael Addo, ed., Human rights standards and the responsibility of transnational corporations (The Hague: Kluwer Law International, 1999), pp. 309–21.

3 BP Accused of Funding Colombian Death Squads’, Observer, 20 Oct. 1996, pp. 1, 18.

Unocal in Burma (Myanmar), Royal Dutch Shell in the United States and the last of these having led to landmark litigations in 2012 and 2013 in the Netherlands.4   Thus,  there is a prima facie, problem that multinationals can take part in alleged violations of human rights.5

It is suffice to state that gross human rights violations by Multinational Oil Corporations in connivance with host state security agencies has led to forced displacement, forced labour, genocide and torture  and these issues have long made international news headlines and have been on the political agenda of the international community.  In a changing and globalized world,  it  is  no  longer  arguable  that  human  rights  violations  are  solely  associated  with governments, but also with multinational corporations (MNCs). Evidence of these, has been documented abuses ranging from  health and safety violations in the workplace, to murder, torture,  and  forced  displacement  in the  hands  of  military  and  security  forces  protecting company facilities. Indeed, attention to corporate human rights responsibility, is an issue of significance for contemporary business practice, and there is need for regulative/legislative

outreach to non-state actors like the Multinational Oil Corporations.6  At the domestic level,

most countries  do not have  national  legislation  establishing  the extra-territorial  duties  of corporations with respect to human rights.7

1.1 Statement of the Problem

4Friends of the Earth International, “Dutch Court Ruling Against Shell A Partial Victory”, Friends of the Earth International, Press Release, January 30, 2013. The Hague, The Netherlands, January 30, 2013  a Dutch court ruled that Shell Nigeria is responsible for polluting farmlands in a landmark case brought by four Nigerian farmers and Friends of the Earth Netherlands. The court said Shell’s subsidiary is accountable for damage caused by oil spills at Ikot Ada Udo, Akwa Ibom State, Nigeria. See also in the matter with case number / docket number: C/09/337050 / HA ZA 09-1580 of Friday Alfred Akpan and Vereniging Milieudefensie , domiciled in Amsterdam, Netherlands v. Royal Dutch Shell Plc and Shell Petroleum Development Company Of Nigeria Ltd.

5 Peter T. Muchlinski, “Human Rights and Multinationals: Is there a Problem”, International Affairs 77, 2001 at p. 31.

6Caroline Kaeb.,  “Emerging Issues  of Human  Rights Responsibility in  the  Extractive and Manufacturing

Industries: Patterns and Liability Risks”, Northwestern Journal of International Human Rights, Volume 6, Issue

2, Spring 2008 at p.1.

7Peter Muchilinski, Corporate Social Responsibility and International Law: the Case of Human Rights and

Multinational Enterprises, in the New Corporate Accountability 431, 449–50 (Doreen McBarnet et al. eds.,

2007).

Since the discovery of oil in Nigeria,  the Niger Delta  has been suffering  from  the negative environmental  consequences  of oil development.  The growth of the  country’s oil industry,  and the lack of enforcement  of environmental  regulations  has  led to substantial damage to the environment, especially in the Niger Delta Region. The harmful effects of oil spill on the environment are many: Oil kills plants and animals  in  the estuarine zone. Oil pollution  destroys  soil  nutrients  and  makes  the  soil  infertile  for  crop  production.  The inhabitants who depend on the soil for their survival are hard hit as their means of livelihood become impaired. Oil settles on beaches and kills organisms that live there, It also settles on ocean floor and kills benthic (bottom-dwelling) organisms such as crabs. Oil poisons algae, disrupts major food chains and decreases the yield of edible crustaceans. It also coats birds, impairing their  flight or reducing the insulative property of their feathers, thus making the birds more  vulnerable to cold. Oil endangers fish hatcheries in coastal waters and as well contaminates the flesh of commercially valuable fish. In the Nigerian coastal environment a large areas of the mangrove ecosystem have been destroyed. The mangrove which was once a source of both fuel wood for the indigenous people and a habitat for the area’s biodiversity,

but is now unable to survive the oil toxicity of its habitat.8

Multinational  Oil  Corporations  have  increased  the  rate  of man-made  environmental destruction  and  concomitant  harm  to  humans  in  the  Niger  Delta  Region  of  Nigeria. Indigenous groups like the Ogonis, Ijaws, and other ethnic minority groups in the Niger Delta are often affected the most severely; such that their sustainable lifestyle becomes impossible as natural resources are decimated by the mining activities of these oil corporations. Nigeria government lacks the will power to implement and enforce strict regulatory standards on oil mining corporations considering their advantage to her economy. Moreover, government of

Nigeria often regard economic investment by the oil companies and, in turn, the development

8 Peter C. Nwilo and Olusegun T. Badejo, “Impacts and Management of Oil Spill Pollution along the Nigerian

Coastal  Areas”, 2007 at p.6. Available online at www.fig.net/pub/figpub/pub36/chapters/chapter_8.pdf, visited

10 December, 2013.

of the economy as of primary importance, as such the concern for the environment falls by the wayside.   The peoples of Niger  Delta  region are often face with the  repressive  and tremendous financial and political clout the transnational oil companies wield, and, moreover, the current body of Nigerian and international law fails to provide victims with an adequate legal remedy against them. Major cases against MOCs for human rights violations committed abroad have been brought in both U.S courts under the U.S. Alien Tort Statute and European

domestic courts particularly in Britain and the Netherlands.9

Multinational Oil Corporations in the Niger Delta Region of Nigeria have been involved in violating human rights in the region which include the rights to life, right to  enjoy life; freedom from torture and cruel, inhuman, or degrading treatment; freedom from arbitrary detention or deprivation of security of the person;  freedom to enjoy property; freedom from deprivation  of or injury to health;  enjoyment  of a clean  and healthy environment.10   The Nigerian government hosting these multinational corporations, perceiving the need to choose between development and individual rights,  have opted for the former and abdicated  their

responsibilities to protect their own citizens. Ordinarily, it is Nigeria’s primary responsibility to respect and protect the citizens’ human rights vis-`a-vis business actors, like multinational oil corporations.  However,  their incentives to do so are often weak  and their capacity to regulate effectively the multinational corporations is frequently lacking. These issues have led   to   legal,   human   rights,   developmental   debates   and   security   challenges   in  the

region11  which necessitated the reasons for embarking on this research.

1.2 Research Questions

9 Caroline Kaeb, op. cit, at p. 328.

10See Fons Coomans, “The Ogoni Case before the African Commission on Human and Peoples’ Rights”

International and Comparative Law Quarterly, Vol. 52, July 2003,:749-760. p.1.

11 Christen Broecker, “Better the Devil You Know”: Home State Approaches to Transnational Corporate

Accountability”, International Law and Politics, Vol. 41:159, 2008 at p.161.

The central question explored in this research is: how did the activities of Multinational Oil Corporations result in flagrant human rights violations in the oil producing communities of  the  Niger  Delta  Region  of  Nigeria  and  whether  the  rights  violated  is  capable  of enforcement through existing human rights provisions under Nigerian law?

In  order  to  answer  this  broad  research  question,  this  thesis  explores  further  the following specific questions: (a). what are the impacts of the activities of Multinational Oil Corporations on the inhabitants of host communities in the Niger Delta region.  (b) In what ways did the activities of Multinational Oil Corporations  lead to underdevelopment  of the Niger  Delta  Region  of  Nigeria?    (c).  Why  did  Nigerian  laws  and  policies  constitute  a hindrance  on access to environmental  justice  among the affected  population  in the Niger Delta Region and what are the available  legal remedies that could be  invoked against the Multinational Oil Corporations for their liabilities in the face of weak regulatory frameworks of  the  Nigerian   government   and  (d)  What  are  the  available   national,  regional   and international legal regimes that can be applicable as a result of the wanton activities of the MNCs in the Niger Delta region.

These core research questions will constitute the focus of detailed examination in the course of this research exercise and will form the basis of the findings and recommendations in this thesis.

1.3 Objectives of this Research

The  main  objective  of  this  research  is  to  examine  the  impact  of  the  activities  of Multinational Oil Corporations on Human Rights in the Niger Delta Region. This thesis will underscore the human rights violations resulting from the activities of the MOCs and how it has grossly affected the well being of people living in the Niger Delta. This research will seek to  establish  a  linkage  between  environmental  degradation,  violent  attacks  and  general insecurity in the Niger Delta region. It will also assess  the  activities of Multinational  Oil

Corporations and its effects on sustainable development in the Niger Delta Region of Nigeria. This work will further seek solutions that will help in resolving the age long environmental and human rights problems facing the region due to the negative impacts of oil exploration and exploitation by the Multinational  Oil Corporations.  Useful recommendations  based on applicable  local and international best standards were  suggested in resolving the problems resulting from the impact of oil company activities in the Niger Delta Region.

1.4 Significance of this Research

This research is significant because it will help to fill the gap in existing literatures regarding the  linkage  between  the  activities  of  multinational  oil  corporations  and  human  rights violations in their host communities. The findings of this research will be useful to academic researchers,  legal practitioners  and  human  rights advocates  in their  quest  to  liberate  the suffering people of the Niger Delta Region.   This thesis hopes to  encourage policymakers, advocates, political and business leaders in Nigeria and at the international levels to recognize and embrace the potential  for a dynamic  interaction  between Multinational  Corporations, states, and international bodies in the area of business and human rights, particularly through home state regulations that promote respect for human rights. The recommendations  in this thesis will be a useful guide to policy makers and it will lead to an overall improvement in the live  pattern  of  the  people  of  Niger  Delta  region.  The  recommendations  will  assist  in restoration  of  their  natural  habitat  and  forthwith  prevent  the  oil companies  from  further depleting the environment through negative oil exploration adventures by adopting local and international best standards in the oil exploration activities. Above all, the most significant aspect  of  this  thesis,  is  that,  it  will  lead  to  the  realization  of  the  human  rights  of  the indigenous peoples in the oil producing communities of the Niger Delta Region and stem the tide of violent uprising resulting from the reaction of the people to the oppressive attitude of

the  multinational  oil  corporation  in  joint  venture  with  the  Nigerian  National  Petroleum

Corporation.

1.5 Methodology of this Research

The methodology applied in this research is doctrinal. It involves extensive  literature review involving the use of primary and secondary source materials. The  primary source materials are the statements of the law relied upon which includes: statutes, case laws and international  treaties,  while  the  secondary  source  materials   which  discusses,   explain, interpret, and analyze what the law is include: textbooks  (encyclopedias,  law dictionaries, etc),    journals    articles,    law    reviews,    case    studies,    surveys,    reports,    conference proceedings/papers  and  on-line  documents  related  to  the  activities  of  multinational  oil corporations  in  the  Niger  Delta  Region  of  Nigeria.  Relevant  academic  literatures  from various fields such as human rights law, company law, politics, history, environmental law and policy, oil and gas law, sociology, and other materials relevant to the subject matter were consulted and duly referred to as secondary source materials.

1.6 Scope of this Study

The scope of this thesis, borders on Niger Delta Region of Nigeria and include the oil producing states of Abia, Akwa Ibom, Baylesa, Cross Rivers, Delta, Edo, Imo,  Ondo and Rivers State. This research will also examine human rights issues resulting from the negative activities of Multinational Oil Corporations in the oil producing communities. This thesis will study related events from 1956 when oil was first discovered in Niger Delta till 2009 when the Amnesty Programme was declared by the Federal Government to stem the tide of violent militant activities and youth restiveness because of the activities of MOCs in the Niger Delta Region.

1.7 Limitations of this Study

This thesis could not examine the different  palliative mechanisms  established  by the Federal government  of Nigeria to address the environmental  problems associated  with oil exploitation and underdevelopment of the Niger Delta Region, such as national boards, Trust funds, commissions and the newly established Ministry of the Niger Delta Affairs to address the problems of the region. This is because they did not achieve the set objectives for which they  were  established  rather  they  served  purely  political  reasons  meant  to  continue  the domination of the people of the Niger Delta. Also documents  dealing with the actions of MOCs on oil field practices in the region are not available except their annual reports, and press releases which are often subject of gross manipulations in favour of the oil companies and as such could be difficult to reply upon in arriving at a body of knowledge meant to address human rights situation of people in the Niger Delta Region. Again most government records from the Ministry of Petroleum Resources, Ministry of Environment and Department of Petroleum Resources relating to the activities of the MOCs in the Niger Delta region are not accessible because they are referred to as classified documents.

1.8 Structure of this Research

This thesis comprises of six chapters. Chapter one is general introduction of the issues that led to this academic  inquiry.  Chapter  two deals with definitions  and  clarification  of conceptual framework, chapter three analysis the national and international legal standards on the  protection  of  human  rights  to  development,  freedom  from  exploitation  of  natural resources, environmental pollution and peace, while chapter four will involve a discussion on the complicity of multinational oil companies on human rights violations in the Niger Delta Region of Nigeria.  Chapter  five will discuss the various  ways in which the activities  of MOCs have affected the development, security situation and limitations on access to justice for litigants challenging the impunity and environmental irresponsibility of the Multinational Oil  Corporations in the Niger Delta Region. Chapter six will address the linkage between

globalization,  multinational  corporations  and human  rights  accountability  in home  states. Chapter seven will be the concluding chapter and it will be a summary of the findings of the research, together with concluding remarks and recommendations of practical solutions that will  lead  to  solving  the  human  rights  and  environmental  problems  associated  with  the activities of Multinational Oil Corporations in the Niger Delta Region.

1.9 Literature Review

In search for an enduring framework for this research work, reliance was placed  on existing studies in the same field and it is evident that there has been abundant texts, journal articles and papers, written by different authors about Multinational Oil Corporations, Human Rights Violation in Nigeria, Oil Pollution, Gas Flaring, Environmental Degradation, Law and Petroleum, Oil Exploration and Exploitation in  Niger Delta Region of Nigeria by different scholars under different subjects but none has been written on the topic: “A Critical Appraisal of the Impact of the Activities of  Multinational  Oil Corporations on Human Rights in the Niger Delta Region of Nigeria”, and this formed the basis of this research in other to fill the obvious gap that  exist in available literatures and provide a modern understanding  of the relationship  between the activities of MOCs and human rights violations in oil producing areas of Nigeria.



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