A Rights-based Approach to Oil Spill Investigations: A Case Study of the Bodo Community Oil Spill in Nigeria

A Rights-based Approach to Oil Spill Investigations: A Case Study of the Bodo Community Oil Spill in Nigeria
Azubuike, S. I., & Songi, O. (2020). A Rights-based Approach to Oil Spill Investigations: A Case Study of the Bodo Community Oil Spill in Nigeria. Global Energy Law and Sustainability, 1(1), 28-54. https://doi.org/10.3366/gels.2020.0005
Published in: Global Energy Law and Sustainability
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Download date:29. Dec. 2022
Smith I. Azubuike* and Ondotimi Songi**
Abstract: Oil-bearing local communities in resource-rich developing countries suffer human rights violations after an oil spill. The
violations arise as a result of impacted water sources, destruction of the environment and access to food, affected economic
livelihood, etcetera. In the oil spill investigation process, the existing laws do not incorporate an assessment of the human
rights impacts of the spill, to forestall subsequent human rights infringement when another oil spill occur. The Bodo
community oil spill in Nigeria is a case in point. This article utilises a Human Rights Impact Assessment (HRIA) framework
to examine the oil spill investigation regime in Nigeria, regarding the Bodo community oil spill. The essence is to identify
the flaws in the investigation process, assist in holding duty-bearers accountable to their human rights obligations and
responsibilities while empowering local communities as right-holders in the oil spill investigation process. This article
seeks to incorporate the HRIA framework into the oil spill investigation regime to prevent further human rights violations
post-oil spill. It notes that the application of the core procedural elements of HRIA – DM-PACT - is fundamental to
improving the human rights experience after an oil spill. As a result, the framework could be mainstreamed into policy,
legal, regulatory processes and management systems to enhance restorative and energy justice post-spill and to enhance
post-spill or accident investigation to improve the human rights experience in the energy sector.
* Dr Smith I. Azubuike holds a PhD in Energy Law and Policy from the Centre for Energy, Petroleum & Mineral Law & Policy,
University of Dundee and is the Africa Regional Coordinator at the Extractives Hub, CEPMLP, University of Dundee. Smith is a
Tutor in English Contract Law and English Criminal Law and Evidence at the School of Law, University of Dundee. He is a Barrister
and Solicitor of the Supreme Court of Nigeria. Correspondence email: [email protected] ** Ondotimi Songi is a Ph. D Candidate at the Centre for Energy, Petroleum & Mineral Law & Policy, University of Dundee. He is a
Barristers and Solicitors of the Supreme Court of Nigeria.
Keywords: Oil spill investigation; human rights; energy justice; environmental Justice; rights-based
approach; Bodo Community; Nigeria; John Ruggie; corporate accountability; due diligence.
1. INTRODUCTION
Oil-bearing communities in hydrocarbon-rich developing countries are the first recipients of human rights
infringements when an oil spill occur. Nigeria’s Niger Delta (ND) is one of the usual reference locations for
discussions on environmental pollution and its impact on local communities, mainly as a result of the
activities of oil and gas companies operating in the region.1 The ND trumps the Gulf of Mexico when it
comes to oil spill occurrences with about 9 to 11 million barrel of oil spilt as against the Gulf of Mexico’s
official estimates of about 4.1 million barrels of spilt oil.2 Unlike the Gulf of Mexico, the oil spills in the ND
remain largely not cleaned-up. The significant occurrence of oil spills suggests the non-application of
internationally recognized standards to prevent oil spills even though Nigerian law requires companies to
adopt ‘good oil field practices’ such as standards of the American Petroleum Institute for all petroleum
production and transportation operations.3 The law requires that in the event of an oil spill, petroleum
companies should take ‘prompt steps’ to initiate clean-up operations within 24 hours of the discharge.4
The less obvious impact of oil spills are the human rights impacts that local communities suffer from
following an oil spill.5 The contamination of land, surface and groundwater, and sedimentary contamination
leaves local farmers without food and local fishermen/fisherwomen without fishes.6 All these impacts on the
right to a clean and healthy environment, the right to food, the right to portable water, entitlement to an
adequate standard of living, the right to earn a living via work, and the right to health. The result is an impact
on the livelihood of local communities as they cannot survive without food and water. These human rights
impacts call for active public participation in the oil spill investigation process to ensure environmental and
energy justice for local communities. Environmental justice7 seeks to compensate for harm to man and the
environment8 while energy justice,9 using the element of procedural justice, ensure the involvement of people
in decision-making procedures around energy system infrastructures, technologies10 and processes such as
in oil spill investigation to provide more equitable and just energy policy outputs. Entrenched in
1 . Victoria E Kalu and Ngozi F Stewart, ‘Nigeria’s Niger Delta Crises and Resolution of Oil and Gas Related Disputes: Need for a
Paradigm Shift’ (2007) 25(3) Journal of Energy and Natural Resources Law 247. 2 . Richard Steiner, ‘Double standard: Shell Practices in Nigeria Compared with International Standards to Prevent and Control
Pipeline Oil Spills and the Deepwater Horizon Oil Spill’ (Friends of the Earth Netherlands, November 2010) <http://oasis-
earth.com/Resources/ Milieudefensie%20rapport%20Shell%20Double%20Standard%20L%2010-50-4435%20LR. pdf >
accessed 12 June 2019. 3 . The Mineral Oils (Safety) Regulations of 1962 made pursuant to the Nigerian Petroleum Act 1969, Cap P10, Laws of the
Federation of Nigeria (LFN), 2004. 4 . Department of Petroleum Resources (DPR), Environmental Guidelines and Standards for the Petroleum Industry in Nigeria
(EGASPIN) as revised in 2002,148 states, among other things that: ‘clean-up shall commence within 24 hours of the occurrence
of the spill’. 5 . Eloamaka Carol Okonkwo, ‘Environmentally displaced persons in the Niger Delta: Challenges and Prospects’ in Jordi Jaria I
Manzano, Nathalie Chalifour and Louis J. Kotzé (eds), Energy, Governance and Sustainability (Edward Elgar Publishing Ltd
2016). 6 . Zelda Anne Elum, Keletso Mopipi and Adanna Henry-Ukoha, ‘Oil Exploitation and its Socioeconomic Effects on the Niger
Delta Region of Nigeria’ (2016) 23(13) Environmental Science and Pollution Research 12880-9. 7 . The United States Environmental Protection Agency defined environmental justice as ‘the fair treatment and meaningful
involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation,
and enforcement of environmental laws, regulations, and policies’. Available from <https://www.epa.
gov/environmentaljustice> accessed 20 August 2019. 8 . Kerri Woods, ‘What does the language of Human Rights bring to campaigns for Environmental Justice’? (2006) 15(4)
Environmental Politics 572; Harry M Osofsky, Kate Baxter-Kauf, Bradley Hammer, Ann Mailander, Brett Mares
‘Environmental justice and the bp deepwater horizon oil spill’ (2012) 20(1) New York University Environmental Law Journal
99. Environmental justice aligns with restorative justice which seek to repair the harm done to people. In this regard it could be
applied to post energy accidents where the oil company is responsible for the accident as is the case with Shell in the Bodo oil
spill. 9 . Raphael J Heffron and Darren McCauley, ‘The Concept of Energy Justice across the Disciplines’ (2017) 105 Energy Policy 658–
667. Energy Justice has three fundamental elements – procedural justice, distributional justice and recognitional justice.
Procedural justice relates to our discussion in this paper as it deals with the ability of people to be involved in decision-making
procedures around energy system infrastructures, technologies, and procedures. 10 . Ramazan Sari, Ebrua Voyvoda, Max Lacey-Barnacle, Eminegul Karababa, Cagatay Topal and Demet Islambay, (2017) ‘Energy
Justice: A Social Sciences and Humanities Cross-cutting Theme Report’ (SHAPE ENERGY Technical Report, 19 January 2018)
<https://shapeenergy.eu/index.php/publications/> accessed 23 May 2019.
disproportionate ecological impacts.11
Accordingly, an oil spill investigation (OSI) should be conducted appropriately, as a flawed OSI process
would not only hamper energy and environmental justice but would further aggravate the human rights
impacts that local communities will encounter. Interestingly, the determination of the cause(s), extent and
effects of an oil spill is the duty of government regulators, in collaboration with other stakeholders. However,
evidence shows that government investigators lack the technical capacity to undertake such an
investigation.12 The result is that the oil and gas companies that are often answerable for the oil spill lead the
oil spill investigation. The practise adopted in both the Deepwater Horizon accident and the Fukushima
disaster investigation could help to promote human rights post-spill in Nigeria.
Disclosure and participation form part of the core elements of the HRIA framework, adopted in the
Deepwater Horizon13 and Fukushima accidents investigations.14 Through public participation and site visits,
the Fukushima Commission noted that ‘residents in the affected area are still struggling from the effects of
the accident. They continue to face grave concerns, including the health effects of radiation exposure,
displacement, the dissolution of families, disruption of their lives and lifestyles and the contamination of
vast areas of the environment. The Commission concludes that the government and the regulators are not
fully committed to protecting public health and safety; that they have not acted to protect the health of the
residents and to restore their welfare’. These findings enabled and canvassed support for energy and
environmental justice in the Fukushima disaster, which is essential in promoting human rights in the energy
sector. In the Nuclear energy sector, the liability regime facilitates environmental justice as it ensures that
potential victims will be compensated promptly and efficiently after a nuclear accident.15
The focus of this paper is to promote procedural and environmental justice to improve the human rights
experience and to forestall further rights violation when an oil spill occurs. This article utilises an HRIA
framework to examine the OSI regime in a developing country such as Nigeria. The HRIA framework will
assist in identifying the human rights flaws in the current practice and suggests measures that can support in
holding duty-bearers accountable to their human rights obligations and responsibilities while empowering
local communities as right-holders in the OSI process. The basis for choosing Nigeria and Bodo community
as a case study arise from the many oil spill occurrences and unattended human rights concerns following
the oil spills.
This article applies the various core procedural elements of the HRIA framework. It notes that the
application of the core procedural elements of HRIA – DM-PACT- is fundamental to improving the human
rights experience and promoting energy (procedural justice)16 and environmental justice after an oil spill has
occurred. This is because, energy justice, just like the HRIA framework, gives the impacted community a
voice in seeking for restorative or environmental justice.
2. ASSESSING THE LITERATURE ON OIL SPILL INVESTIGATION AND HUMAN RIGHTS IN NIGERIA
There is a core set of leading texts about the oil spill and environmental degradation in the Niger Delta of
Nigeria. Some of this literature examines the impact of an oil spill on oil-bearing communities. One of the
11 . David Schlosberg, ‘Theorising environmental justice: the expanding sphere of a discourse’ (2013) 22(1) Environmental Politics
37–55. 12 . Akpofure Rim-Rukeh, ‘Oil Spill Management in Nigeria: SWOT Analysis of the Joint Investigation Visit (JIV) Process’ (2015)
6 Journal of Environmental Protection 259–271. 13 . National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, ‘Deep Water: The Gulf Oil Disaster and the
Future of Offshore Drilling’ (Report to the President, January 2011) <https://www.govinfo.gov/content/pkg/GPO-
OILCOMMISSION/pdf/GPOOILCOMMISSION.pdf> accessed 30 May 2019. 14 . The National Diet of Japan, ‘The official report of the Fukushima Nuclear Accident Independent Investigation Commission’
2012, available from <https://www.nirs.org/ wp-content/uploads/fukushima/naiic_report.pdf> accessed 20 June 2019. 15 . Raphael J Heffron, Stephen F Ashley, William J Nuttal, ‘The global Nuclear Liability Regime post Fukushima Daiichi’ (2016)
90 Progress in Nuclear Energy 1–10. 16 . Raphael J Heffron, Anita Rønne, Joseph P Tomain, Adrian Bradbrook and Kim Talus, ‘ATreatise for Energy Law’ (2018) 11
Journal of World Energy Law and Business 34–48.
Nigeria’s petroleum development, identifies the spill incidents and the impact on the coastlines and local
communities. It also advanced a new trajectory for oil spill management to monitor coastal communities in
Nigeria. A related article is the UNDP report18 which assesses the human development issues in the Delta
and examines the social, environmental and economic challenges associated with petroleum extraction in
the Niger Delta while also proffering solutions to those issues.
ZA Elum and others19 explore the adverse effects (destruction of wildlife, biodiversity loss, air and water
pollution, degradation of farmland and damage to aquatic ecosystems) of oil exploration on the Niger Delta,
with a call on oil companies to modernise operating infrastructure and equipment to prevent avoidable oil
spillages. Similarly, J Nriagu and others20 focused on the health implications that follow oil exploration in
the Niger Delta. NG Ikpeze21examines the nexus between oil exploration, the environment and human rights.
He emphasises the impacts of oil exploration on the environment and human rights and the need to protect
human rights. Ikpeze concludes with a call to protect the environment through legislation and other means.
Other literature provides insights on how HRIA could be conducted using rights tools, but none of the
documents or articles utilised the HRIA framework to analyse oil spill investigation and the post-spill impact
of oil spill on human rights. One report from Amnesty International (AI)22 highlights the many oil spills in
Nigeria and the effect on the environment of the Niger Delta. Another AI23 report still focused on oil pollution
in Nigeria and its impact on the environment and human rights of local communities. The AI report relied
on the article examined the human rights implications of the spill on local communities in Ogoniland and
the systemic flaws in the oil spill investigations regime in Nigeria. The report did not, however, utilise an
HRIA framework to state how governments and corporations could manage post-spill human rights impacts
in the energy sector. Our paper fills this gap by exploring the HRIA framework to solve the post-oil spill
human rights impacts on local communities to improve the human rights experience during the OSI process.
The literature on human rights impact assessment does not provide how the human rights experience could
be improved upon during an OSI to forestall further rights violations and ensure restorative and procedural
justice for local communities in the OSI process. In this respect, our article is considered a fundamental
addition to the literature on the subject as it provides a framework that will prevent further human rights
violation post-spill and assist in investigating accidents or disasters in the energy industry in general, in
achieving restorative justice. Applying the core procedural elements of the HRIA framework, the article
advanced a pathway to improve the human rights experience post-spill, which also facilitates environmental
democracy.
3. THE HUMAN RIGHTS IMPLICATIONS OF OIL SPILL
Human rights are rights that inure to a person arising from his existence on earth.24 The usage of ‘human
rights’ here entails entitlement. These rights include but are not limited to the right to life, healthy
environment, food, and the right to work and earn a living.25 The socio-economic and environmental impacts
of oil pollution are extensive. They range from loss of biodiversity, damage to aquatic ecosystems, air and
17 . Peter C Nwilo and OT Badejo, ‘Oil Spill Problems and Management in The Niger Delta’ (2005) 2005(1) International Oil Spill
Conference Proceedings 567–570. 18 . United Nations Development Programme (UNDP), ‘Niger Delta Human Development Report’, Abuja: UNDP, 2006. 19 . ZA Elum, et al, (n 6). 20 . Jerome Nriagu, Emilia A. Udofia, Ibanga Ekong, and Godwin Ebuk, ‘Health Risks Associated with Oil Pollution in the Niger
Delta, Nigeria’ (2016) 13(3) International Journal of Environmental Research and Public Health 346. 21 . Nnamdi George G Ikpeze, ‘The Environment, Oil and Human Rights in Nigeria’, (2011) 2 Nnamdi Azikiwe University Journal
of International Law and Jurisprudence 88. 22 . Amnesty International, ‘Nigeria: Hundreds of Oil Spills Continue to Blight Niger Delta’ (Amnesty International. 19 March 2015)
<https://www.amnesty.org/en/latest/news/ 2015/03/hundreds-of-oil-spills-continue-to-blight-niger-delta/> accessed 23 June
2017. 23 . Amnesty International, ‘Nigeria: Petroleum, Pollution and Poverty in the Niger Delta’, London, 2009. 24 . Jack Donnelly, Universal Human Rights in Theory and Practice (3rd edn, Cornell University Press 2013) 7–8; see also Nnamdi
George Ikpeze, ‘The Environment, Oil and Human Rights in Nigeria’ (2011) 2 Nnamdi Azikiwe University Journal of
International Law and Jurisprudence 88. 25 . Ibid, 8.
constitutes a significant source of economic and social existence for oil-bearing communities.26
Apart from environmental impacts, a recent study has shown that oil pollution has severe effects on
psychological and pathological health of oil-bearing communities.27 Accordingly, the enjoyment of nature-
given rights is impaired by oil pollution, particularly in the areas discussed.
3.1. The right to food
The right to food is recognised under the International Covenant on Economic Social and Cultural Rights
(ICESCR),28 and this means that food has to be available and accessible to citizens from productive land and
natural resources.29 Within the context of the right to food, governments are required ‘to protect and improve
existing food sources, and should not allow food sources to be destroyed or contaminated by private persons
or MNCs, thereby
Food provides livelihood and self-sufficiency for traditional communities, and this can be at risk through
the loss of natural sources to food occasioned by oil pollution.31 The African Commission in the Ogoni case
stated that ‘The African Charter on Human and Peoples’ Rights (ACHPR) require and bind States to protect
and improve existing food sources and to ensure access to adequate food for all citizens.32 In the Ogoni case,
the African Commission observed that Nigeria had violated the right to food by allowing oil companies to
destroy food sources. The UN Committee on Economic Cultural and Social Rights (CESCR) has stated that
food must be ‘free from adverse substances’.33 The numerous gas flares and oil spills damage farmlands,
crops, fishing rivers, and lack of proper environmental remediation has impacted adversely on food security.
3.2 The right to work and an adequate standard of living
The ICESCR provides for the right to gain a living through work.34 The right to an adequate standard of
living is also captured under Article 11 of the ICESCR and under Article 25 of the Universal Declaration of
Human Rights (UDHR) where human right is associated with the right to food, housing, health, and gaining
a living by working.35 It is, therefore, the duty of governments to take all necessary measures to protect this
right including infringements from third parties such as companies.
Local communities exercise the right to work and earn a living through the engagement in farming and
fishing as a means of sustenance and livelihood. The exercise of this right is impaired and livelihood
impacted where oil spill pollutes their farmlands and rivers. Thus, violating their rights to gain a living by
work and the right to an adequate standard of living as their source of food is…