The right to a satisfactory environment and the African Commission

I acknowledge the useful comments of Adv Morné van der Linde of the Centre for Human Rights, University of Pretoria, South Africa, on the earlier version of this article. However, the views expressed here and any inaccuracies contained herein remain mine alone.

Summary

This article emphasises that the right to a satisfactory, healthy or clean environment is enshrined in over 60 constitutions from all regions of the world. Moreover, it is suggested that there is an increasing trend by victims of environmental damage to invoke human rights for protection and redress. National courts and global and regional human rights monitoring bodies, such as the UN Human Rights Committee and the Inter-American Commission, have addressed this issue. It is encouraging that the African Commission recently decided a case concerning the impact of oil operations in the Niger Delta, concluding that the African Charter recognises the importance of a clean and safe environment. The decision recognises a nexus between socio-economic rights and the right to environment to the extent that the environment affects the quality of life and safety of individuals and groups. In finding Nigeria in violation of the Charter, the Commission stated that the right to a satisfactory environment 'requires the state to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources'.

1.  Introduction

In contemporary times, the 'environmental issue' (particularly, environmental protection) is arguably one of the most important subjects on the global community's agenda. United Nations (UN) Special Rapporteur, Mrs Fatma Zohra Ksentini, observed in her report on human rights and the environment that the state of the environment is nowadays seen as a worldwide problem that should be addressed globally, 'in a co-ordinated and coherent manner and through the concerted efforts of the international community'. [1] More specifically, part of the current international discourse on the subject centres on the concept of the 'right to environment'. [2] The controversial question is whether there is an international 'human right to environment'. While some scholars maintain that an international human right to environment presently exists as part of the international bill of rights, others contend that no such right has emerged. [3] In fact, there is abundant legal literature affirming or rejecting the existence of a right to environment. [4] It is proposed to briefly consider the proponents' view here.

The proponents of the right to environment have pointed to its acceptance and incorporation into more than 60 national constitutions (as well as the constitutions of several component states of the United States of America). [5] In some cases, such constitutional provisions are declaratory of the state's duty to pursue environmentally sound development, sustainable use of natural resources and the maintenance of safe and healthy environment for the citizens of the state, while in others the constitution provides for the individual's right to a clean and healthy environment and a person's duty to protect and conserve the environment and natural resources. Moreover, in a few cases, these two approaches are combined. For the present purposes, a few examples will suffice to illustrate this increasing state practice. [6]

On the African continent, the relatively recent Constitutions of Mali, the Democratic Republic of Congo (DRC) and the Republic of South Africa provide good examples. In the case of Mali, section 15 of its 1992 Constitution provides:

Every person has a right to a healthy environment. The protection and defence of the environment and the promotion of the quality of life are a duty for all and for the state.

Similarly, section 46 of the 1992 Constitution of the DRC provides as follows:

Every citizen shall have the right to a satisfactory and sustainable healthy environment, and shall have the duty to defend it. The state shall supervise the protection and the conservation of the environment. With regard to South Africa, the first post-apartheid Constitution of the Republic of South Africa (which came into force on 27 April 1994) stipulates in section 29 that '[e]very person shall have the right to an environment which is not detrimental to his or her health or well-being'. This formulation has been extended in the 1996 Constitution. [7]

The same trend is also found in the constitutions of many Asian countries — for example, India and China. In India, the Federal Constitution of 1949 provides as follows in article 51A(g):

It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wild life, and to have compassion for living creatures.

China's 1982 Constitution imposes a duty on the state to protect and improve the living environment, and prevent and remedy pollution and other public hazards. [8] The Constitution also provides for the rational use of natural resources and the protection of rare animals and plants. [9]

Regarding Latin American and Caribbean countries, evidence indicates that all constitutions enacted in those regions since the 1972 Stockholm Conference on the Human Environment contain important environmental protection principles. Moreover, older constitutions have been amended to incorporate such principles. For example, the 1980 Constitution of Peru provides various rights and duties with regard to the environment. These include the rights of citizens to live in a healthy environment which is ecologically balanced and adequate for the development of life and the preservation of the countryside and nature, citizens' duty to conserve the environment, and the state's duty to prevent and control environmental pollution. [10] In the same vein, the 1980 Constitution of Chile guarantees all persons the right to live in an uncontaminated environment, and imposes a duty on the state to watch over the protection of this right and the duty to preserve nature. Moreover, the state has the power to make certain restrictions on the exercise of certain rights or freedoms where that is necessary to preserve the environment. [11] 

Many state courts have rendered decisions enforcing the relevant constitutional provisions on the right to a satisfactory environment. In Mehta v Union of India, [12] for example, the Supreme Court of India restrained a series of tanneries from disposing of effluent into the river Ganges on the petition of an interested citizen. In reaching its decision, the Court relied on article 48A (which enjoins the state to endeavour to protect and improve the environment and to safeguard the wildlife of the country) and article 51A of the Indian Constitution. [13]

Further support for the existence of an international right to environment may be found in decisions of international human rights tribunals. Specifically, a number of international human rights committees and tribunals have increasingly recognised the application of the fundamental right to a healthy or healthful environment to situations concerning life-threatening environmental risks. [14] For example, within the UN system, the Human Rights Committee [15] has examined a number of cases under the Optional Protocol dealing with threat to life in violation of article 6(1) of the International Covenant on Civil and Political Rights (ICCPR). [16] In EHP v Canada, [17] Canadian residents alleged that radioactive waste that remained after the government had conducted a cleanup constituted serious risks to health in violation of article 6 of the ICCPR. Although the Committee declared the case inadmissible, [18] it noted that the case 'raised serious issues with regard to the obligation of state parties to protect human life'. [19]

The same approach has also been followed in regional human rights protection bodies, particularly the Inter-American Commission on Human Rights. For instance, in a case filed by the Yanomami Indians of Brazil, [20] the Commission determined that environmental degradation of Yanomami lands violated the right to life and other human rights (including right to cultural identity and right to property) set out in the American Convention on Human Rights. [21]

Although it may still be uncertain how the right to life may be interpreted in various environmental contexts, these cases demonstrate an increasing trend by victims of environmental damage to invoke human rights doctrine for protection and redress and an emerging trend by human rights tribunals to apply this doctrine, especially in life-threatening situations. [22]

In a recent case complaining about the abuse of human rights and the degradation of the Niger Delta environment by oil operations undertaken by Nigerian-based multi-national oil companies (especially Shell Oil Company), the African Commission on Human and Peoples' Rights (African Commission or Commission) was faced with questions relating to human rights to a 'satisfactory' and 'healthy' environment. [23] The article focuses on this decision with a view to determining the attitude of the Commission to the concept of a human right to a satisfactory environment, particularly in life-threatening situations. The context of the environmental impact of oil operations in the Niger Delta as well as related human rights abuses is now briefly sketched. 

2.  Oil operations and environmental degradation in the Niger Delta

Nigeria's vast oil resources are concentrated in the Niger Delta region of the country. As with other high technology-based industrial activities, the extraction of oil has as consequence different types of environmental problems occurring at different stages of oil operations. [24] However, for the purposes of this article it is sufficient to briefly consider two of the most important and well-known problems of oil operations in the Niger Delta, namely oil spills and gas flares. Additionally, the related problem of human rights abuses is briefly considered.

2.1  Oil spill and gas flare: Their impact on the Niger Delta environment

Several studies have provided evidence showing that oil spilling is a frequent occurrence in the Niger Delta (mostly in the swamp forests and offshore), inhabited by indigenous ethnic minorities. [25] More seriously, such spillages have resulted in several environmental problems that affect both the region and its local inhabitants. Interestingly, oil companies operating in the region acknowledge the frequency of oil spillages and their potential to cause damage to the inhabitants of the region. For example, Shell Oil Company — the leading oil multinational company operating in Nigeria's Niger Delta area — states that since 1989 it has recorded 'an average of 221 spills per year in its operational area' and that it is 'committed to paying compensation to affected communities'. [26] 

In one of the most important scientific studies of the environmental impact of oil operations in the Niger Delta region, it has been found that incessant oil spills of various magnitudes have resulted in massive pollution of water bodies as well as degradation of agricultural land, destruction of artisanal fishery, and generally adverse socio-economic consequences. [27]

With specific respect to land, it has been found, for instance, that oil spills adversely affect the availability and productivity of farmlands. In fact, scientific studies following the 1972 major oil spill at Shell's Bomu-11 oil field (which affected 242,8 hectares of farmlands close to human settlements) indicate that while the less affected soils were returned to production in less than one and a half year, the heavily affected soils remained agriculturally unusable for several years. [28]

In the case of the impact of oil spills on the ubiquitous water systems of the region, [29] it is now well known that water pollution as a result of oil spillages constitutes one of the most pressing problems in the Niger Delta region. [30] More specifically, it affects the local inhabitants' source of drinking water (the local inhabitants depend mostly on streams for the supply of their drinking water). Moreover, oil spillages frequently cause a film of oil to form on affected water bodies, thereby preventing natural aeration and causing the death of marine life (particularly fish) trapped below. Furthermore, fish ingest the spilled oil and thereby become unpalatable and sometimes poisonous for human consumption. A non-governmental organisation (NGO) had described the situation as 'catastrophic'. [31] Hutchful summed up the impact as follows: [32]

[S]pills of crude [oil], dumping of by-products from [oil] exploration, exploitation and refining operations (often in fresh-water environments) and overflowing of oily wastes in burrow pits during heavy rains has had deleterious effects on bodies of surface water used for drinking, fishing and other household and industrial purposes. The percolation of industrial wastes (drilling and production fluids, buried solid wastes, as well as spills of crude) into the soil contaminates ground-water aquifers. 

In summary, oil pollution (oil spilling) is a frequent incidence in the Niger Delta. [33] More significantly, it has far-reaching adverse affects on the environment of the region, particularly on agricultural lands of the local inhabitants of the region, whose major occupations are farming and fishing. Frequent oil spills damage the soil nutrients, resulting in diminished yields. Moreover, oil spills and careless disposal of oil or petroleum by-products degrade water bodies (including underground water), thereby affecting people's source of drinking water and fish supply. Based on various findings, these effects appear to be the result of careless attitude of the oil companies operating in the region to environmental issues. The prevailing situation is better summed up by a journalistic account of a recent incident: [34]

About ten persons have been admitted at various hospitals in Sapele, Delta State, as a result of the side-effects [of] crude oil spillage which occurred at Ugborikoko village, near Sapele. The oil spillage occurred on a Shell Petroleum Development Company (SPDC) facility located on the Mayuka Creek on the river Ethiope, adjacent to Sapele gas station. The victims, our sources revealed, were rushed to hospitals, because of the complications arising from the consumption of polluted water from the adjoining rivers. Already, the accident had destroyed aquatic and other economic life of the people in [the] neighbourhood. Specifically, fishing activities had been paralysed in the entire Sapele and its environs as the spillage reportedly killed the fish in all the rivers in the areas. Our correspondent who visited the scene yesterday sighted condensed crude floating on the river and uncountable number of burnt shacks and dry trees. The Vanguard checks in the areas so revealed that the crude had spilled to over 35 kilometres on the river. The secretary, Sapele/Okpe community, Mr Onoriode Temiagin, who spoke with the Vanguard, confirmed the admission of ten of his kinsmen at various hospitals in Sapele. Temiagin, who claimed that the incident had brought untold hardship to his people, since they were predominantly fishermen, further lamented that 'it has rendered us jobless, it is unfortunate to recall that nobody has caught fish here since the incident occurred'.

Apart from the incidence of oil spillage, flaring of associated gas (that is gas produced alongside oil) [35] is another critical and hazardous aspect of oil operations in the Niger Delta region of Nigeria. [36] Moffat and Linden point out that Nigeria flares more gas than any other country in the world. [37] In fact, since the late 1950s when oil exploitation began in the Niger Delta, virtually all associated gas had been flared, [38] and this has resulted in significant environmental problems. For example, the continuous flaring of associated gas has significantly contributed to the release of greenhouse gases into the atmosphere and reportedly caused acid rain. [39] Moreover, it has been claimed by the local inhabitants that 'gas flaring has destroyed plant and wildlife'. [40] The words of an Ogoni song bemoan the problem of gas flare: [41]

The flames of Shell are flames of hell, we bask below their light, nought for us to serve the blight, of cursed neglect and cursed Shell.

Remarkably, the effects of gas flaring are smilar to those of oil spills in the region. The following statement sums up this position: [42]

Gas flaring has been the most constant environmental damage because in many places [in the Niger Delta] it has been going on 24 hours a day for over 35 years. There are hundreds of gas flares throughout the Niger Delta. It affects plant life, pollutes the surface water and as it burns, it changes to other gases which are not very safe. It also results in acid rain. With the pullout of Shell from Ogoniland, gas flaring has stopped in four of the five flow stations. Where the gas flaring has stopped, people were able to see a difference in their vegetation; farm yields are better than before. The people did not know what it was like to live without Shell. It is only now that the people in these areas can see what type of environmental devastation the gas flaring had been causing for the past 35 years. . . .

2.2  Protection of oil installations in the Niger Delta and human rights abuses

Closely associated with the problems of oil pollution and gas flares is the issue of human rights abuses, allegedly in the course of protection of oil installations by Nigerian security agencies. [43] Based on reported accounts, since 1990 the local victims of environmental pollution frequently protest the degradation of their environment and the destruction of their means of livelihood by oil companies, asking for appropriate compensation. Often, the protest is in the form of blockade of oil pipelines and other oil production facilities, which may result in the stoppage of oil production.

There is abundant evidence to indicate that several human rights abuses have been perpetrated in the Niger Delta in the name of protection of oil production facilities against the actions of protesters. Several protesters have been beaten, unlawfully arrested and detained and even killed by the mobile police (a paramilitary organisation), the Nigeria Police, the Nigerian Army and a number of other specialised security forces based in the region (such as the Rivers State Internal Security Task Force, Rivers State Operation Fire For Fire, and the Bayelsa State-based Operation Salvage). Several international NGOs (for example, Human Rights Watch) have investigated a number of such abuses. In general it has been found that activists from human and environmental organisations who campaign against oil company disregard of environmental standards face regular harassment from the Nigerian authorities. [44] For example, Ken Saro-Wiwa was arrested and detained several times by various security agencies before his unlawful execution on 10 November 1995 along with eight other activists, after a trial for alleged murder charges before a tribunal which the international community rejected for non-compliance with international standards of due process. [45]

Although repressive military regimes, which had been blamed for authorising the abuses, had been replaced by civilian governments at all levels of government in Nigeria since 29 May 1999, oil facilities related human rights abuses do not appear to be at an end nor even in retreat. On the contrary, the local inhabitants of the Niger Delta continue to be under military siege, and only in 2000 did President Obasanjo allegedly authorise the destruction of the Odi community in Bayelsa state, where youths were protesting against environmental degradation of their area and inequity in the distribution of oil revenue among the states of the Federation of Nigeria. [46] That operation also witnessed the loss of several innocent lives in the community.

Against the background of the foregoing, the recent decision of the African Commission on human and environmental rights of the Ogoni people of the Niger Delta will now be considered. 

3.  The African commission and the right to a satisfactory environment: SERAC v Nigeria

In 1996, two NGOs brought a complaint before the African Commission on behalf of the Niger Delta people of Nigeria (specifically the Ogoni people), in whose area Nigeria exploits its vast oil resources. [47] The case was aimed at achieving the redress of human rights abuses and the protection of the Niger Delta environment from degradation. This was the first time the Commission expanded on the meaning, interpretation and scope of the right to a satisfactory environment provided in the African Charter on Human and Peoples' Rights (African Charter or Charter). [48] In their communication [49] to the Commission, the complainants alleged as follows: [50]

        1.     That the government of Nigeria has been directly involved in oil production through the state oil company — the Nigerian National Petroleum Company (NNPC) — the majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC) — Mand that these operations have caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni People.

        2.     That the oil consortium has exploited oil reserves in Ogoniland with no regard for the health or environment of the local communities, disposing toxic wastes into the environment and local waterways in violation of applicable international environmental standards. The consortium also neglected and/or failed to maintain its facilities causing numerous avoidable spills in the proximity of villages. The resulting contamination of water, soil and air has had serious short and long-term health impacts, including skin infections, gastrointestinal and respiratory ailments, and increased risk of cancers, and neurological and reproductive problems.

        3.     That the Nigerian government has condoned and facilitated these violations by placing the legal and military powers of the state at the disposal of the oil companies. (The Communication contains a memo from the Rivers State Internal Security Task Force, calling for 'ruthless military operations'.)

        4.     That the Nigerian government has neither monitored operations of the oil companies nor required safety measures that are standard procedure within the industry. The government has withheld from Ogoni communities information on the dangers created by oil activities. Ogoni communities have not been involved in the decisions affecting the development of Ogoniland. 

        5.     That the government has not required oil companies or its own agencies to produce basic health and environmental impact studies regarding hazardous operations and materials relating to oil production, despite the obvious health and environmental crisis in Ogoniland. The government has even refused to permit scientists and environmental organisations from entering Ogoniland to undertake such studies. The government has also ignored the concerns of Ogoni communities regarding oil development, and has responded to protests with massive violence and executions of Ogoni leaders.

        6.     That the Nigerian government does not require oil companies to consult communities before beginning operations, even if the operations pose direct threats to community or individual lands.

. . .

        9.     That the Nigerian government has destroyed and threatened Ogoni food sources through a variety of means. The government has participated in irresponsible oil development that has poisoned much of the soil and water upon which Ogoni farming and fishing depended. In their raids on villages, Nigerian security forces have destroyed crops and killed farm animals. The security forces have created a state of terror and insecurity that has made it impossible for many Ogoni villagers to return to their fields and animals. The destruction of farmlands, rivers, crops and animals has created malnutrition and starvation among certain Ogoni communities.

It could be observed that the substance of these complaints is consistent with the environmental impacts of oil exploitation in the Niger Delta as well as related human rights abuses, as briefly stated above. On the foregoing claims, the complainants alleged that the Nigerian state has violated articles 2, 4, 14, 16, 18(1), 21 and 24 of the African Charter. At this juncture, the most important of these are articles 16 and 24, which provide thus:

        16(1) Every individual shall have the right to enjoy the best attainable state of physical and mental health.

        (2)    State parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

        24.   All peoples shall have the right to a general satisfactory environment favourable to their development.

Interestingly, the respondent state (Nigeria) 'admitted the gravamen of the complaints' [51] in its response to the case. In a note verbale submitted to the Commission at its 28th session in Cotonou, Benin, the Nigerian government admitted the violations of the alleged articles, stating that there is no denying the fact that a lot of atrocities 'were and are still being committed by oil companies in Ogoni-land and indeed in the Niger Delta area'. [52] 

In its decision after considering the complaint, the Commission pertinently stated that articles 16 and 24 of the African Charter recognise the importance of a clean and safe environment that is closely linked to economic and social rights in so far as the environment affects the quality of life and safety of the individual. [53] It found that the Niger Delta environment suffers from degradation as a result of oil pollution and held that an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and development as the breakdown of the fundamental ecologic equilibrium is harmful to physical and moral health. [54] While acknowledging the right of the Nigerian state to produce oil, it pointed out that the care that should have been taken by the government to ensure sustainable development and the protection of the environmental and human rights of the local inhabitants of the region (specifically the Ogoni people) had not been taken. [55] Accordingly, the Commission found the Nigerian state to be in violation of the right to a clean environment under articles 16 and 24 of the African Charter. [56] Outlining the obligations of state parties under articles 16 and 24 of the Charter as well as under other relevant international instruments, the Commission pertinently stated: [57]

The right to a general satisfactory environment, as guaranteed under article 24 of the African Charter or the right to a healthy environment, as it is widely known . . . imposes clear obligations upon a government. It requires the state to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Nigeria is a party, requires governments to take necessary steps for the improvement of all aspects of environmental and industrial hygiene. The right to enjoy the best attainable state of physical and mental health enunciated in article 16(1) of the African Charter and the right to a general satisfactory environment favourable to development (article 16(3)) . . . obligate governments to desist from directly threatening the health and environment of their citizens. The state is under an obligation to respect the just noted rights and this entails largely non-interventionist conduct from the state; for example, not from carrying out, sponsoring or tolerating any practice, policy or legal measures violating the integrity of the individual . . . Government compliance with the spirit of articles 16 and 24 of the African Charter must also include ordering or at least permitting independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.

The foregoing statement clearly shows the position of the Commission on the question of a human right to a satisfactory environment. Essentially, the Commission's view is that the right enjoins governments to provide sustainable development and forbids measures, actions or activities that may threaten the life and sustenance of a people. In this way, the decision is in line with the trend in other parts of the world in respect of the human right to a satisfactory environment.

Furthermore, with regard to allegations of violations of human rights (particularly the right to life and integrity of the human person under article 4 of the African Charter), the Commission found that various security forces were given the green light to 'decisively deal with the Ogonis' and that this was illustrated by the 'widespread terrorisations and killings'. [58] Accordingly, it held that killings of and other brutalities against the local people by security agencies violate the most fundamental of all human rights — the right to life. More significantly, the Commission held that pollution and environmental degradation to a level humanly unacceptable has made living in Ogoniland a nightmare, thus linking environmental protection to human rights in line with the trend elsewhere in the world. In the Commissions express words: [59]

International law and human rights must be responsive to African circumstances. Clearly, collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa.

Overall, the Commission's decision was a victory for the deprived, bruised and dehumanised people of Nigeria's oil region, specifically Ogoni people. However, it is merely a moral victory since the Commission's decisions are not binding but merely recommendatory. There is no evidence that oil-related environmental degradation has ceased or that the brutalisation of the local people in the name of protection of oil facilities has abated. In any case, the decision is important in establishing that the people of the region as well as the people of other African state parties to the African Charter have a human right to a healthy environment, which insists, among others, that development must respect environmental issues and human rights.

4.  Conclusion

This article has examined the attitude of the African Commission to the concept of human right to a satisfactory environment. The opportunity for the Commission to address this issue came in a recent decision given in a case between the Ogoni people of the Niger Delta and the Nigerian state. The Commission considers environmental degradation as a violation of the right to a satisfactory environment and also the right to life and dignity of the human person. Being the decision of a regional quasi-judicial body, the case has helped to highlight the environmental problems of the Niger Delta region of Nigeria, oil development related human rights abuses and the general plight of the indigenous in-habitants of the region as a result of oil operations in the region. The facts contained in the communication and the findings of the Commission are consistent with the findings of various studies on the impact of oil operations in the Niger Delta as stated above.

Although the Commission's decisions are recommendatory and not legally binding, [60] it must not be supposed that they are devoid of any value. As Kalas has argued, it is not true that condemnation before an international tribunal or complaints body is without value. On the contrary, the mobilisation of political pressure on those who are violating recognised norms is one way of influencing a national government to implement environmentally favourable policies. [61] This is especially so where an indicted party has made a treaty part of its domestic law, as Nigeria has done with the African Charter. As a Nigerian judge put it in Garuba & Others v Attorney-General of Lagos State: [62]

The African Charter on Human and Peoples' Rights, of which Nigeria is a signatory, is now made into our law [sic] by the African Charter (Ratification & Enforcement) Act, 1983. Even if its aspect of our Constitution is suspended or ousted by any provision of our local law, the international aspect of it cannot be unilaterally abrogated . . . By signing international treaties we have put ourselves on the window of the world. We dare not unilaterally breach any of the terms without incurring some frowning of our international friends. 

From this statement, one possibility is that the decision of the African Commission on the human right to a satisfactory environment will ultimately influence the decisions of Nigerian domestic judges. In any case, the African Commission has established that environmental degradation constitutes a violation of the right to a satisfactory environment under the African Charter.