By Felix Ebruba Ayanruoh
Growing up, vivid images of environmental and political degradation of the Niger Delta region of Nigeria were a terrifyingly common place: surfaces of rivers and streams littered with dead fish; little children dying from the effects of contaminated water and the devastating impact of violent unrest by vast numbers of unemployed, disaffected and disenchanted youth. The apparent insensitivity of the Nigerian government and transnational corporation in the region deserves urgent attention.
The social economic problems in the region are grounded in a fundamental and systemic disregard for human rights and the inequities of resource allocation. If the revenues from natural resources obtained from these regions in Nigeria were properly managed and fairly allocated, the societal dissensions and historically deep resentments might be less profound.
It is no secret that the human rights regime - as it relates to corporate responsibilities in Nigeria is somewhat rudimentary. For example, although globalization has provided massively profitable opportunities to oil companies in this region, and together with other multinationals, the opportunity to operate legally and abuse weak regulatory structure so as to maximizing profit, the native inhabitants frequently continue to suffer. Investigations of corporate conduct carried out by Amnesty International and Judicial Watch in the Niger Delta region revealed serious violations of human rights, which have included, among others, environmental degradation, forcible displacement, extrajudicial killings and war crimes.
International human rights law principally affects two categories of actors who may be held liable for abuses-states, through the concept of state responsibility, which is usually civil and individuals, through the concept of individual responsibility, primarily criminal. States are custodians of full range of human rights, whether defined in treaties or customary law. Individual responsibility applies to a far smaller range of abuses, principally characterized by the gravity of their physical or spiritual assault on the individual.
The theory of corporate responsibility for human rights protection is now a seminal part of international law. Building upon the traditional notion whereby international law generally places duties on states and, more recently, individuals, it is pertinent to question how the international legal process might provide for human rights obligations directly on corporations.
Although the United States and other developed countries recognizes human rights protection due to corporate unethical activities, countries in Africa, including Nigeria argued that the duty to protect against human rights violations by third parties rests with the state. The Nigerian government has frequently failed to meet its obligations to respect, and protect human rights, while providing security to the oil industry, because of its importance to the economy.
The Nigerian government and the courts have consistently discouraged the institution of these law suits. This has resulted in instituting these actions in the US Federal District Courts under the Alien Tort Claims Act (ATCA). For example, in Wiwa v. Royal Dutch Petroleum Co., a suit brought against international Shell Oil defendants in a US court for the detention and executions of several Nigerians, including prominent author Ken Wiwa, arising out of disputes over the development of oil resources in the homeland of the Ogoni people. Plaintiffs alleged that, Shell instigated, orchestrated, planned and supported the government of Nigeria to torture and executed the claimant's family members. The Federal district court sitting in New York held that it had jurisdiction to hear the case. (The case was later settled)
The Alien Tort Claims Act gives federal courts jurisdiction to hear claims of aliens for violations of international law. These cases are important evidence of the trend toward corporate accountability-indeed, with concrete results.
Establishing legal frameworks for corporate accountability in the Nigerian jurisprudence is now. This can be dealt with twofold. Namely (a) Nigeria courts should look to foreign decisions and international law about corporate human rights issues and (b) Undertake a review of the laws affecting the relationships of the oil companies with the communities in which they operate.
A legal regime requiring the regulation of corporations, rather than states or individuals, is necessary to address the nature of corporations as actors in the human rights field. A final step in this regard must be taken before seeking to offer a theory. This step should involve the examination of international practice to see whether states, international organizations, and other key participants are, in a sense, ready for such an enterprise. In reviewing recent trends, one discovers that international law has already effectively recognized duties of corporations.
Since we have the same moral and legal framework as the United States and other common law countries, it is good law to adopt foreign laws and court decisions regarding human rights abuse by corporations. The Nigerian government in recognition and acceptance of human rights law ratified both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which provide for binding obligations for Nigeria to respect, protect and fulfill the rights recognized in those covenants without discrimination and to provide effective remedies to individual victims. Nigeria has also ratified the African Charter on Human and Peoples' Rights, which recognizes a wide range of civil, political, economic, social and cultural rights.
It can be argued effectively that the ATCA and other human rights laws be adopted by the Nigerian courts pursuant to the common law doctrine of Stare Decisis. Stare decisis is the principle that precedent decision both nationally and internationally be binding on lower courts, when a point of law has been settled by that decision. Since the issue of corporate culpability of human rights abuse in the Delta region has been settled by the US courts, it is my opinion that the Nigerian courts should not shy away from adopting this principle in its jurisprudence.
However, private suits might be a difficult way to enforce human rights abuse by corporations. The legislatures or courts could help in developing and reviewing existing laws concerning private rights of action for victims of human rights abuses. For example, a review of laws affecting the relations of the oil companies with the communities in which they operate, such as the land Use Acts, The Petroleum Production and Distribution (Anti Sabotage) Act, and the Petroleum Decree and its subsidiary Legislations among others. Most importantly, the proposed Petroleum Bill before the National assembly should address the issue of corporate responsibility and culpability in the Niger Delta region. .These Measures can address the problems and scope of corporate abuse of human rights.
