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Constitutionalising Environmental Rights for Sustainable Constitutionalising Environmental Rights for Sustainable Environmental Protection in Nigeria’s Niger Delta Region Submitted by PAUL UGWU ABBA to the University of Exeter as a thesis for the award of the degree of Doctor of Philosophy in Law September 2018 This thesis is available for Library use on the understanding that it is copyright material and that no quotation from the thesis may be published without proper acknowledgement. 1 ABSTRACT This thesis critically analyses the prospects of constitutionalising environmental rights in Nigeria and argues that it has the potential to entrench sustainable ecological protection in the Niger Delta region which suffers from endemic environmental pollution. The thesis seeks to answer the central research question- Should environmental rights be constitutionalized in Nigeria’s legal framework? In answering this question, it examines the normative contents of a prospective constitutional environmental right in Nigeria and challenges the entrenched anthropocentric ethics prevalent in existing environmental literature and in constitutions of many countries around the globe. Utilising a transnational study of environmental constitutionalism and constitutionalization of environmental rights, the thesis argues for the adoption of a coalesced anthropocentrism model of environmental rights which protects the tripod interests in the environment- present humans, future generations and Mother Nature. This liberal approach ensures that environmental rights in the constitution are comprehensive and protective of the rights of non-human components of the ecosystem which are often neglected in legislative and judicial considerations of environmental issues. The original contribution of the thesis lies in its development of the coalesced anthropocentrism model which is tested by reviewing the constitutions of 196 countries to examine the extent to which this model is reflected in the environmental protection legal framework of countries around the globe. While constitutionalization of environmental rights is not the panacea to all environmental ills, it creates an enduring fundamental platform from which the environmental problems in the Niger Delta region can be resolutely tackled. Specifically, it has the potential to improve environmental protection in the region in four critical ways - strengthening the country’s environmental legal framework, tackling ecological imperialism and the ‘full belly’ syndrome, improving access to environmental justice and incorporating international environmental law and principles in the legal framework. However, the thesis has wider application beyond the Niger Delta and Nigeria which is used as a case study for other oil producing (mostly developing) countries in similar socio-economic circumstances and facing endemic environmental challenges from oil production activities including a number of Latin American and Sub-Saharan African countries. 2 Dedicated to Ifemi, my soul mate; Amari, Rissa and Jnr! Fortune Favours the Bold… 3 ACKNOWLEDGEMENTS Special thanks for the successful completion of this thesis goes to my Supervisors, Professor Robert Lee and Dr Onyeka Osuji for their tireless efforts in reviewing my drafts and their insightful inputs and suggestions. I remain eternally grateful for their accommodating responses to my various requests throughout the writing of this thesis. Immense gratitude also goes to the Commonwealth Scholarship Commission (CSC), UK for their sponsorship of my Doctoral study and their support throughout the period of my study. Their sponsorship of outstanding scholars from developing countries has helped to sustain the dreams of many young, vibrant intellectuals who would otherwise not have the opportunity to study at world-class institutions in the UK. Thanks to the CSC UK for keeping my dreams alive! My scholarship programme officer, Jasmin Osman, also deserves special recognition for the manner she assisted in ensuring I enjoyed all the support and benefits the CSC sponsorship offered in a smooth and timeous way. My family and friends that have had to endure my periods of absence and non- commitment to other personal and social engagements over the course of this research, I appreciate their endurance and understanding. 4 TABLE OF CONTENTS Title Page…………………………………………………………………………….…1 Abstract……………………………………………………………………….………...2 Dedication………………………………………………………………………………3 Acknowledgements………………………………………………………………....…4 Table of Contents………………………………………………………………….…. 5 Table of Cases……………………………………………………………………...….9 Table of Statues……………………………………………………………………...13 Abbreviations………………………………………………………………………....19 Figures and Tables……………………….…………………………………..…….. 21 Introduction Background ……….………………………………………………………..…...……22 Research Problems…………………………………………………….......………..31 Research Questions……………………………………………..…………...……...32 Research Objectives……………………………………………..…………..……...33 Significance of the Research………………………………….……………....……35 Research Methodology…………………………………………..………………….37 Structure and Outline of the Thesis………………………………..………………41 Chapter One ENVIRONMENTAL CHALLENGES IN THE NIGER DELTA 1.0 Introduction………………………………………………………..………….…..…44 1.1 Perspectives to the Niger Delta Environmental Conflict…………..……….45 1.2 Geographical and Political Delineation of the Niger Delta………....….…..49 1.3 Scope of Environmental Degradation in the Niger Delta………….....…….52 1.4 Environmental Issues in the Niger Delta ………………………….……...…61 1.4.1 Weak Environmental Legal Framework in Nigeria……………...…..…62 5 1.4.2 Ecological Imperialism ……………………………………………….……67 1.4.3 Lack of Access to Environmental Justice……………………………..…74 1.4.4 Inapplicability of International Environmental Treaties /Principles........80 1.4.5 The ‘Full Belly’ Impediment to Environmental Protection…….………...83 1.4.5.1 ‘Full-Belly’ Syndrome in the Niger Delta…………………..….….....…86 1.5 Conclusions……………………………………………………………...…...….90 Chapter Two CONCEPTUALISING ENVIRONMENTAL RIGHTS 2.1 Introduction……………………………………………………………….………91 2.2 Jurisprudential Concept of Rights……………………………………….….….93 2.3 The Ambit of Environmental Rights – Human Vs Nature’s Rights…………100 2.3.1 Rights’ Holders in the Environment…………………………………...…100 2.3.2 Historical Development of Environmental Rights………………...…....108 2.4 Theoretical Dualism in Environmental Rights……………………..…….…...113 2.4.1 Anthropocentrism and its Scope: Environmental ‘Human’ Rights…….113 2.4.2 Nature-Centric Perspective of Environmental Rights………….………118 2.4.3 ‘Coalesce Anthropocentrism’ Environmental Rights Paradigm…….…125 2.5 Conclusions……..………………………………………………….….......…...135 Chapter Three UTILIZING RIGHTS’ BASED APPROACH TO ENVIRONMENTAL PROTECTION 3.1 Introduction…………………………………………………………………...…136 3.2 Environmental Rights Model Vs Regulatory Approach……………...……..137 3.2.1 Trump of Environmental Rights over Regulatory Procedures…….143 3.2.2 Environmental Rights’ Supplementing Regulatory Approach…….147 3.3 Environmental Rights’ Model Vs Civil Liability Approach……………….….152 3.3.1 Civil Liability Approach in Transnational Litigation…………………158 3.3.2 Triumph of Rights’ Model over Civil Liability Approach………...….162 3.4 Environmental Constitutionalism and the Judiciary………………………….167 3.4.1 Environmental Constitutionalism and the Rule of Law…………..…171 6 3.4.2 Judiciary’s Role in Environmental Constitutionalism………….….…180 3.5 Conclusions…………………………………………………………………..…186 Chapter Four CONSTITUTIONALISING ENVIRONMENTAL RIGHTS 4.1 Introduction…………………………………………………..……….…………188 4.2 Scope of Constitutionalization of Environmental Rights………….…………189 4.2.1 Theories of Constitutionalization of Rights…………………..………191 4.2.2 Global Constitutionalization of Environmental Rights………………195 4.3 Formulating Normative Constitutional Environmental Right………………..203 4.3.1 Substantive Constitutional Environmental Right………..…………..205 4.3.2 Incorporating Environmental Principles/Procedural Rights……...…215 4.3.3 Incorporating Coalesced Anthropocentrism Approach…................218 4.3.4 Conclusions……….…………………………….………………...……230 Chapter Five IMPACT OF CONSTITUTIONALIZATION ON ECOSYSTEM PROTECTION 5.1 Introduction…………………………………………………..…………….……232 5.2 Benefits of Constitutionalizing Environmental Rights………………….……232 5.2.1 Impact on Environmental Laws and Enforcement……………………242 5.2.2 Impact on Environmental Right Vs Socio-Economic Rights………...243 5.2.3 Impact on Environmental Justice/Protection of Vulnerable Group....244 5.3 Practical Impacts of Constitutional Environmental Rights …….……………246 5.3.1 Legal Impacts ………………………….……………………………..….249 5.3.2 Extra-Legal Impacts ………………………..…...…………………..…..256 5.4 Conclusions……………………………………………………………………..260 Chapter Six IMPLEMENTING CONSTITUTIONAL ENVIRONMENTAL RIGHTS IN NIGERIA 6.1 Introduction……………………………………………………….…….….……262 7 6.2 Legal Framework of Environmental Protection in Nigeria……………….…264 6.2.1 Environmental Regulatory Framework……………….………….……264 6.2.2 Environmental Rights Framework…………………….……………….269 6.2.2.1 The African Charter and Substantive Environmental Rights….272 6.2.2.2 The EIA Act and Procedural Environmental Rights …………..284 6.3 Constitutionalising Environmental Rights in Nigeria………………..........…292 6.3.1 Normative Contents of the Constitutional Environmental Right........293 6.3.1.1 Substantive Constitutional Environmental Rights …………..…295 6.3.1.2 Constitutional Rights of Future Generations ………….…….....301 6.3.1.3 Constitutional Rights of Nature in the Niger Delta……….….…308 6.3.2 Placement of the Constitutional Environmental Right…….……....…313 6.4 Conclusions……………………………………………………………………..316
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