As Section 7 above makes clear, gas flaring exposes people who live near flares, as well as those who live in the Delta, to a cocktail of toxins which threaten their health and livelihoods. The psychological and physical effects of roaring sounds and intense heat are also significant, as well as property damage. At the same time, no information is provided to the people of the Delta on the hazards to which they are exposed from flaring, no information is readily available, and even organisations such as ERA have huge practical and logistical obstacles in accessing information, often put in their way by government officials, even when seeking access to environmental impact assessments.
These matters constitute violations of human rights.
Under the 1999 Constitution of the Federal Republic of Nigeria, Article 20 provides that:
"The State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria."
and guarantees, for example, the fundamental rights to life (Article 33) and to dignity (Article 34).
Moreover, Nigeria has incorporated into its law [ 79 ] the African Charter on Human and Peoples' Rights, which provides, for example:
"Article 16
1. Every individual shall have the right to enjoy the best attainable state of physical and mental health.
2. States 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....Article 24
All peoples shall have the right to a general satisfactory environment favourable to their development.Article 25
States Parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedom contained in the present Charter and to see to it that these freedom and rights as well as corresponding obligations and duties are understood."
The African Commission on Human and Peoples' Rights has set out its views on the relationship of human rights and environmental protection in the landmark case of The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria.[ 80 ]
This case concerned mainly SPDC operations in Ogoniland which had resulted in environmental degradation and health problems; in illegal disposal of toxic wastes, poisoning land and water; and in the government putting its military and legal powers at the disposal of the oil companies, which had led to several crimes, including the killing of Ogoni leaders and other civilians.
Nigeria was found to have breached the rights to environment under Article 24, to enjoy the rights guaranteed by the Charter without discrimination (Article 2), to life (Article 4), to property (Article 14), to health (Article 16), to housing (implied in Article 18), to food (Articles 4, 16, 22), and the right of peoples to freely dispose of their wealth and natural resources (Article 21).
We cite below two extensive extracts from the Decision in this case, in order for readers to appreciate the far-reaching obligations of the Nigerian government and the companies in relation to human rights violations from gas flaring, both generally and specifically in respect of Articles 16 and 24.
The following extract from the Commission's Decision gives a general indication of the obligations (footnotes omitted):
"43. The present Communication alleges a concerted violation of a wide range of rights guaranteed under the African Charter for Human and Peoples' Rights. Before we venture into the inquiry whether the Government of Nigeria has violated the said rights as alleged in the Complaint, it would be proper to establish what is generally expected of governments under the Charter and more specifically vis-à-vis the rights themselves.
44. Internationally accepted ideas of the various obligations engendered by human rights indicate that all rights-both civil and political rights and social and economic-generate at least four levels of duties for a State that undertakes to adhere to a rights regime, namely the duty to respect, protect, promote, and fulfil these rights. These obligations universally apply to all rights and entail a combination of negative and positive duties. As a human rights instrument, the African Charter is not alien to these concepts and the order in which they are dealt with here is chosen as a matter of convenience and in no way should it imply the priority accorded to them. Each layer of obligation is equally relevant to the rights in question.
45. At a primary level, the obligation to respect entails that the State should refrain from interfering in the enjoyment of all fundamental rights; it should respect right-holders, their freedoms, autonomy, resources, and liberty of their action. With respect to socio economic rights, this means that the State is obliged to respect the free use of resources owned or at the disposal of the individual alone or in any form of association with others, including the household or the family, for the purpose of rights-related needs. And with regard to a collective group, the resources belonging to it should be respected, as it has to use the same resources to satisfy its needs.
46. At a secondary level, the State is obliged to protect right-holders against other subjects by legislation and provision of effective remedies.[4] This obligation requires the State to take measures to protect beneficiaries of the protected rights against political, economic and social interferences. Protection generally entails the creation and maintenance of an atmosphere or framework by an effective interplay of laws and regulations so that individuals will be able to freely realize their rights and freedoms. This is very much intertwined with the tertiary obligation of the State to promote the enjoyment of all human rights. The State should make sure that individuals are able to exercise their rights and freedoms, for example, by promoting tolerance, raising awareness, and even building infrastructures.
47. The last layer of obligation requires the State to fulfil the rights and freedoms it freely undertook under the various human rights regimes. It is more of a positive expectation on the part of the State to move its machinery towards the actual realisation of the rights. This is also very much intertwined with the duty to promote mentioned in the preceding paragraph. It could consist in the direct provision of basic needs such as food or resources that can be used for food (direct food aid or social security).
48. Thus States are generally burdened with the above set of duties when they commit themselves under human rights instruments. Emphasising the all embracing nature of their obligations, the International Covenant on Economic, Social, and Cultural Rights, for instance, under Article 2(1), stipulates exemplarily that States "undertake to take steps...by all appropriate means, including particularly the adoption of legislative measures." Depending on the type of rights under consideration, the level of emphasis in the application of these duties varies. But sometimes, the need to meaningfully enjoy some of the rights demands a concerted action from the State in terms of more than one of the said duties."
The Commission went on to consider the requirements arising out of the rights in Articles 16 and 24:
"51. These rights 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. As has been rightly observed by Alexander Kiss, 'an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and the development as the breakdown of the fundamental ecologic equilibria is harmful to physical and moral health.'
52. 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, therefore 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)) already noted 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 noninterventionist 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.
53. 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."
This Decision of the African Commission is in line with many other decisions of tribunals and constitutional and legal instruments around the world, that have consistently recognised the importance of human rights in an environmental context, such as the UN Human Rights Committee, the Inter-American Commission and Court of Human Rights, the European Court of Human Rights, the Indian Supreme Court, the Bangladesh Supreme Court, the South African Constitution and the Aarhus Convention. It is also worth noting that in its Decision, the Commission stated at paragraph 42 that the Nigerian government had said that:
"in their Note Verbale referenced 127/2000 submitted at the 28th session of the Commission held in Cotonou, Benin, [it] admitted to the violations committed then by stating, "there is no denying the fact that a lot of atrocities were and are still being committed by the oil companies in Ogoni Land and indeed in the Niger Delta area".
Not only does gas flaring amount to a breach of several human rights, but taking these human rights into account when issuing ministerial certificates to flare, and in environmental impact assessment approvals, is also legally necessary.
In addition, in our view it is unacceptable for the ending of a practice that is a violation of human rights and illegal to be treated as a valid basis for a Clean Development Mechanism (CDM) project under the UNFCCC, even if all other requirements could be met (which we doubt). It brings the CDM into disrepute if it is to be used as a mechanism to allow benefits to flow from stopping activities which should never have been occurring in the first place.
[ 79 ] African Charter on Human and Peoples' Rights (Ratification & Enforcement) Act, 1990.
[ 80 ] Decision Regarding Communication No. 155/96, African Commission on Human and Peoples' Rights (ACHPR/COMM/A044/1, 27 May 2002). The text of the Decision can be accessed here: http://www1.umn.edu/humanrts/africa/comcases/155-96.html.
Executive Summary | Introduction | Section 2 | Section 3 | Section 4 | Section 5 | Section 6 | Section 7 | Section 8 | Section 9 | Conclusions